Cite as: 532 U. S. 782 (2001)
Opinion of Thomas, J.
Curiously, this Court concludes that the supplemental instruction "inserted 'an element of capriciousness' into the sentencing decision, 'making the jurors' power to avoid the death penalty dependent on their willingness' to elevate the supplemental instruction over the verdict form instructions." Ante, at 800 (quoting Roberts v. Louisiana, 428 U. S. 325, 335 (1976) (plurality opinion)). Any reference to Roberts, however, is wholly misplaced. Roberts involved a situation in which the jury was told to find the defendant guilty of a lesser included offense, unsupported by any evidence, if the jury did not want him to be sentenced to death. Id., at 334-335. In Penry's case there was no suggestion, express or implied, made to the jury that it could disregard the evidence. On the contrary, it was instructed on how to give effect to Penry's proffered evidence, as required by this Court in Penry I. Tellingly, the Roberts plurality stated in full that "[t]here is an element of capriciousness in making the jurors' power to avoid the death penalty dependent on their willingness to accept this invitation to disregard the trial judge's instructions." 428 U. S., at 335 (emphasis added). In Penry's case, the judge's instructions included an explanation of how to answer the three special issues and how to give effect to the mitigating evidence.
Finally, contrary to the Court's claim that the jury received "mixed signals," ante, at 802, it appears that it is the Texas courts that have received the mixed signals. In Jurek v. Texas, 428 U. S. 262 (1976), this Court upheld the Texas sentencing statute at issue here against attack under the Eighth and Fourteenth Amendments. The joint opinion in Jurek concluded that the statute permits the jury "to consider whatever evidence of mitigating circumstances the defense can bring before it" and "guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death." Id., at
809
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