[ 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 Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.
A capital sentencing procedure that
required the jury to return a death sentence if even a single
juror supported that outcome would be the
The dispute in Mills concerned
jury instructions and a verdict form that the majority read to
create a substantial probability that reasonable jurors .
. . well may have thought they were precluded from considering
any mitigating evidence unless all 12 jurors agreed on the
existence of a particular such circumstance.
This leaves only the question whether reasonable jurors could have read Pennsylvanias jury instructions and verdict form to impose a unanimity requirement with respect to mitigating circumstances. For the reasons identified by the Third Circuit, Banks v. Horn, 271 F.3d 527, 543551 (2001); see also Banks v. Horn, 316 F.3d 228, 247 (2003) (leaving in place the relevant portions of the courts earlier opinion), particularly with respect to the verdict form, 271 F.3d, at 549550, I answer this question in the affirmative.
I would affirm the judgment of the Court of Appeals.
1. Justice Kennedy made precisely this point in his concurrence in McKoy v. North Carolina, 494 U.S. 433, 454 (1990): Application of the death penalty on the basis of a single jurors vote is intuitively disturbing. More important, it represents imposition of capital punishment through a system that can be described as arbitrary or capricious. The Court in Mills described such a result as the height of arbitrariness. Given this description, it is apparent that the result in Mills fits within our line of cases forbidding the imposition of capital punishment on the basis of caprice, in an arbitrary and unpredictable fashion, or through arbitrary or freakish means.
2. Supporting this reading, even the dissenting Justices in Mills v. Maryland, 486 U.S. 367 (1988), did not challenge the majoritys assumption that instructions unambiguously requiring unanimity on the existence of any mitigating factor would be unconstitutional; they argued only that reasonable jurors would have understood that in order to mark no to each mitigating factor on the sentencing form, all 12 jurors [had to] agree. Id., at 394 (Rehnquist, C. J., dissenting) (emphasis added). I recognize that some Justices believe the Mills Court had no occasion to consider the constitutionality of a unanimity requirement because the State had conceded the point. See McKoy, 494 U.S., at 459 (Scalia, J., dissenting) (Although there is language in Mills . . . suggesting that a unanimity requirement would contravene this Courts decisions . . . , that issue plainly was not presented in Mills, and can therefore not have been decided). Mills author, Justice Blackmun, disagreed with this view, however: [T]he Maryland instructions [at issue in Mills] were held to be invalid because they were susceptible of two plausible interpretations, and under one of those interpretations the instructions were unconstitutional. McKoy, 486 U.S., at 445 (emphasis in original). I think Justice Blackmun had the better of this argument, but even if one assumes the Mills dissenters failed to defend the constitutionality of unanimity requirements because they did not think the issue properly before the Court rather than because they, too, condemned such requirements, my overall point remains the same: executing a defendant when only 1 of his 12 jurors believes that to be the appropriate penalty would be so wanto[n] and so freakis[h] as to violate the Eighth and Fourteenth Amendments, Furman v. Georgia, 408 U.S. 238, 310 (1972) (per curiam) (Stewart, J., concurring), and that violation would have been as clear in 1987 as today.