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Opinion of the Court
meaningless as the State's right, in the absence of questioning, to strike those who would never do so.?
D The only issue remaining is whether the questions propounded by the trial court were sufficient to satisfy petitioner's right to make inquiry. As noted above, Illinois suggests that general fairness and “follow the law” questions, of the like employed by the trial court here, are enough to detect those in the venire who automatically would vote for the death penalty. The State's own request for questioning under Witherspoon and Witt of course belies this argument. Witherspoon and its succeeding cases would be in large measure superfluous were this Court convinced that such general inquiries could detect those jurors with views pre
? As the Fifth Circuit has observed obiter dictum: "All veniremen are potentially biased. The process of voir dire is designed to cull from the venire persons who demonstrate that they cannot be fair to either side of the case. Clearly, the extremes must be eliminated—i. e., those who, in spite of the evidence, would automatically vote to convict or impose the death penalty or automatically vote to acquit or impose a life sentence. Smith v. Balkcom, 660 F. 2d 573, 578 (1981) (emphasis in original), modified, 671 F. 2d 858, cert. denied, 459 U. S. 882 (1982).
8 Almost in passing the State also suggests that the “reverseWitherspoon” inquiry is inapposite because of a putative "quantitative difference.” Illinois requires a unanimous verdict in favor of imposing death, see supra, at 721-722; thus any one juror can nullify the imposition of the death penalty. “Persons automatically for the death penalty would not carry the same weight,” Illinois argues, “because persons automatically for the death penalty would still need to persuade the remaining eleven jurors to vote for the death penalty.” Brief for Respondent 27. The dissent chooses to champion this argument, post, at 750, although it is clearly foreclosed by Ross v. Oklahoma, 487 U. S. 81, 85 (1988), where we held that even one such juror on the panel would be one too many. See supra, at 728–729. In any event, the measure of a jury is taken by reference to the impartiality of each, individual juror. Illinois has chosen to provide a capital defendant 12 jurors to decide his fate, and each of these jurors must stand equally impartial in his or her ability to follow the law.
Opinion of the Court
venting or substantially impairing their duties in accordance with their instructions and oath. But such jurors—whether they be unalterably in favor of, or opposed to, the death penalty in every case—by definition are ones who cannot perform their duties in accordance with law, their protestations to the contrary notwithstanding.
As to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed. More importantly, however, the belief that death should be imposed ipso facto upon conviction of a capital offense reflects directly on that individual's inability to follow the law. See supra, at 729. Any juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law. See Turner v. Murray, 476 U. S., at 34–35 (plurality opinion). It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so.9A defendant on trial for his life must be permitted on voir dire
9 That certain prospective jurors maintain such inconsistent beliefsthat they can follow the law, but that they will always vote to impose death for conviction of a capital offense—has been demonstrated, even in this case. See n. 2, supra. Indeed, in Wainwright v. Witt, 469 U. S. 412 (1985), we set forth the following exchange, highlighting this inconsistency in beliefs in regards to Witherspoon v. Illinois, 391 U. S. 510 (1968):
“THE COURT: Wait a minute, ma'am. I haven't made up my mind yet. Just have a seat. Let me ask you these things. Do you prefixed ideas about this case at all?
“[A]: Not at all.
“THE COURT: What I am concerned about is that you indicated that you have a state of mind that might make you be unable to follow the law of this State.
“[A]: I could not bring back a death penalty.
Opinion of the Court
to ascertain whether his prospective jurors function under such misconception. The risk that such jurors may have been empaneled in this case and “infected petitioner's capital sentencing [is] unacceptable in light of the ease with which that risk could have been minimized.” Id., at 36 (footnote omitted). Petitioner was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State's case in chief, had predetermined the terminating issue of his trial, that being whether to impose the death penalty.
JUSTICE SCALIA, in dissent, insists that Illinois is entitled to try a death penalty case with 1 or even 12 jurors who upon inquiry announce that they would automatically vote to impose the death penalty if the defendant is found guilty of a capital offense, no matter what the so-called mitigating factors, whether statutory or nonstatutory, might be. Post, at 742–746. But such jurors obviously deem mitigating evidence to be irrelevant to their decision to impose the death penalty: They not only refuse to give such evidence any weight but are also plainly saying that mitigating evidence is not worth their consideration and that they will not consider it. While JUSTICE SCALIA's jaundiced view of our decision today may best be explained by his rejection of the line of cases tracing from Woodson v. North Carolina, 428 U. S. 280 (1976), and Lockett v. Ohio, 438 U. S. 586 (1978), and developing the nature and role of mitigating evidence in the trial of capital offenses, see Walton v. Arizona, 497 U. S. 639, 669–673 (1990) (SCALIA, J., concurring in part and concurring in judgment); Payne v. Tennessee, 501 U. S. 808, 833 (1991) (SCALIA, J., concurring); Sochor v. Florida, ante, at 554 (SCALIA, J., concurring in part and dissenting in part), it is a view long rejected by this Court. More important to our purposes here, however, his view finds no support in either the statutory or decisional law of Illinois because that law is consistent with the requirements concerning mitigating evi
Opinion of the Court
dence described in this Court's cases. See Turner v. Murray, supra, at 34–35 (plurality opinion).
The Illinois death penalty statute provides that "[t]he court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty,” Ill. Rev. Stat., ch. 38, 19–1(c) (Supp. 1990), and lists certain mitigating factors that the legislature must have deemed relevant to such imposition, ibid.10 The statute explicitly directs the procedure controlling this jury deliberation:
"If there is a unanimous finding by the jury that one or more of the factors [enumerated in aggravation] exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether the sentence of death shall be imposed. If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant
to death.” 19–1(g). In accord with this statutory procedure, the trial judge in this case instructed the jury:
“In deciding whether the Defendant should be sentenced to death, you should consider all the aggravating
10 Illinois Rev. Stat., ch. 38, 19–1(c) (Supp. 1990), provides: “Mitigating factors may include but need not be limited to the following: “(1) the defendant has no significant history of prior criminal activity; "(2) the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution; "(3) the murdered individual was a participant in the defendant's homicidal conduct or consented to the homicidal act; "(4) the defendant acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm; “(5) the defendant was not personally present during commission of the act or acts causing death.”
Opinion of the Court
factors supported by the evidence and all the mitigating factors supported by the evidence.
“If you unanimously find, from your consideration of all the evidence, that there are no mitigating factors sufficient to preclude imposition of the death sentence, then you should sign the verdict requiring the Court sentence
the Defendant to death.” App. 122–123. Any juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider the mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty. Any contrary reading of this instruction, or more importantly, the controlling statute, renders the term “sufficient” meaningless. The statute plainly indicates that a lesser sentence is available in every case where mitigating evidence exists; thus any juror who would invariably impose the death penalty upon conviction cannot be said to have reached this decision based on all the evidence. While JUSTICE SCALIA chooses to argue that such a “merciless juro[r]” is not a “lawless" one, post, at 751, he is in error, for such a juror will not give mitigating evidence the consideration that the statute contemplates. Indeed, the Illinois Supreme Court recognizes that jurors are not impartial if they would automatically vote for the death penalty, and that questioning in the manner petitioner requests is a direct and helpful means of protecting a defendant's right to an impartial jury. See n. 3, supra. The State has not suggested otherwise in this Court.
Surely if in a particular Illinois case the judge, who imposes sentence should the defendant waive his right to jury sentencing under the statute, see n. 1, supra, was to announce that, to him or her, mitigating evidence is beside the point and that he or she intends to impose the death penalty without regard to the nature or extent of mitigating evidence