284
Breyer, J., dissenting
its life or death decision depended simply upon the presence or absence of Paragraph 2's "aggravators"? So interpreted, this instruction would clearly violate Lockett's requirement that instructions permit the jury to give effect to mitigating evidence.
The majority cannot find precedent supporting its position. In Boyde, the Court found a set of jury instructions constitutionally sufficient, but those instructions explicitly referred to mitigation and told the jury about weighing aggravating against mitigating circumstances. Boyde, 494 U. S., at 373- 374, and n. 1. In Johnson v. Texas, 509 U. S. 350 (1993), the Court found a set of jury instructions constitutionally sufficient which concededly did not expressly mention mitigation. But those instructions told the jury to take account of factors (the defendant's future dangerousness) broad enough to cover the mitigating circumstance (youth) that the defendant there had raised. Id., at 354. See also Franklin v. Lynaugh, 487 U. S. 164, 183-188 (1988) (O'Connor, J., concurring in judgment) (same). And in Penry v. Lynaugh, 492 U. S. 302 (1989), the Court found constitutionally inadequate a set of jury instructions similar to those in Johnson, but applied in a case involving mitigating evidence (mental retardation) that was not encompassed by the factors specifically mentioned in the instructions (the deliberateness of the defendant's actions; the defendant's future dangerousness; and provocation by the deceased).
All the state pattern jury instructions that the parties or amici have cited explicitly mention the jury's consideration of mitigating evidence. After this Court decided Franklin, Penry, and Johnson, Texas adopted a pattern instruction that specifically mentions mitigation. 8 M. McCormick, T. Blackwell, & B. Blackwell, Texas Practice §§ 98.18-98.19 (10th ed. 1995); see also Tex. Crim. Proc. Code Ann., Art. 37.071 (Vernon Supp. 1996-1997). Virginia, too, has recently amended its pattern instructions so that, unlike the instruction now before us, they require the jury to consider "any
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