280
Breyer, J., dissenting
Justice Breyer, with whom Justice Stevens and Justice Ginsburg join, dissenting.
The imposition of a penalty of death must be "directly related to the personal culpability of the criminal defendant," and "reflect a reasoned moral response to the defendant's background, character, and crime." California v. Brown, 479 U. S. 538, 545 (1987) (O'Connor, J., concurring). Consequently, a judge's instructions during penalty phase proceedings may not preclude the jury "from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U. S. 586, 604 (1978) (emphasis deleted). The majority recognizes that "the standard for determining whether jury instructions satisfy these principles [is] 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.' " Ante, at 276 (quoting Boyde v. California, 494 U. S. 370, 380 (1990)). In my view, the majority misapplies this standard.
The relevant instruction, read in its entirety, indicates that there is a "reasonable likelihood" that the jury understood and "applied the challenged instruction" in a way that prevented it from considering "constitutionally relevant evidence," namely, the extensive evidence that the defendant presented in mitigation. The instruction, which petitioner argued should have been supplemented by additional discussion of mitigation, App. 74-76, read as follows:
"[1] You have convicted the defendant of an offense which may be punishable by death. You must decide whether the defendant should be sentenced to death or to life imprisonment.
"[2] Before the penalty can be fixed at death, the Commonwealth must prove beyond a reasonable doubt that his conduct in committing the murders of Douglas McArthur Buchanan, Sr., Christopher Donald Buchanan,
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