|BEARD V. BANKS (02-1603) 542 U.S. 406 (2004)
316 F.3d 228, reversed and remanded.
[ Thomas ]
[ Stevens ]
[ Souter ]
JEFFREY A. BEARD, SECRETARY,
DEPARTMENT OF CORRECTIONS,
PETITIONERS v. GEORGE E. BANKS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 24, 2004]
Justice Souter, with whom Justice Ginsburg joins, dissenting.
I join Justice Stevenss dissenting opinion in this case. I add this word about the way I see its relation to Justice Breyers dissenting opinion in Schriro v. Summerlin, ante, at ___, and to other cases in the line that began with Teague v. Lane, 489 U.S. 288 (1989).
In determining whether Mills
v. Maryland, 486 U.S. 367 (1988),
states a new rule of constitutional law for purpose of
Teagues general bar to applying such rules on
collateral review, the Court invokes the perspective of
In applying Teague, this Court
engages in an ongoing process of defining the characteristics
of a reasonable jurist, by identifying arguments that
reasonable jurists would or would not accept. The particular
characteristic at stake here is the degree to which a
reasonable jurist would avoid the risk of a certain kind of
erroneous outcome in a capital case. Millss rule
protects against essentially the same kind of error that
Justice Breyer discusses in Summerlin: a death sentence
that is arbitrary because it is inaccurate as a putative
As Justice Stevens says, a death sentence based upon a verdict by 11 jurors who would have relied on a given mitigating circumstance to spare a defendants life, and a single holdout who blocked them from doing so, would surely be an egregious failure to express the public conscience accurately. Ante, at 1 (dissenting opinion). The question presented by this case is ultimately whether the Court should deem reasonable, and thus immunize from collateral attack, at least at the first Teague stage, a reading of its pre-Mills precedents that accepts the risk of such errors that Marylands or Pennsylvanias jury instructions and verdict form would have produced.
The Court concludes that, as compared
to Eddings v. Oklahoma, 455 U.S. 104 (1982),
obstructions to the sentencers ability to
consider mitigating evidence to the abilities of
individual jurors to do so, and that a reasonable
jurist could have drawn a distinction on this basis.
Ante, at 8. This approach gives considerable weight to
a reasonable jurists analytical capacity to pick out
arguably material differences between sets of facts, and
relatively less to the jurists understanding of the
substance of the principles underlying our Eighth Amendment
cases that follow Furman v. Georgia, 408 U.S. 238 (1972)
(per curiam). Although the Courts view of the
reasonable jurist is not inconsistent with some of
*. * See, e.g., ODell v. Netherland, 521 U.S. 151, 157166 (1997) (holding new the rule of Simmons v. South Carolina, 512 U.S. 154 (1994), that a jury may not be misled about defendants parole eligiblity when prosecutor argues future dangerousness); Lambrix v. Singletary, 520 U.S. 518, 527539 (1997) (holding new the rule of Espinosa v. Florida, 505 U.S. 1079 (1992) (per curiam), that a Florida jurys consideration of a vague aggravating factor taints a judges later death sentence); see also Stringer v. Black, 503 U.S. 222, 243247 (1992) (Souter, J., dissenting) (arguing that the rule of Maynard v. Cartwright, 486 U.S. 356 (1988), that sentencers weighing among others of a vague aggravating factor taints a death sentence, was new).