SCALIA, J., dissenting if the defendant is found guilty of a capital offense, that judge is refusing in advance to follow the statutory direction to consider that evidence and should disqualify himself or herself. Any juror to whom mitigating factors are likewise irrelevant should be disqualified for cause, for that juror has formed an opinion concerning the merits of the case without basis in the evidence developed at trial. Accordingly, the defendant in this case was entitled to have the inquiry made that he proposed to the trial judge. IV Because the "inadequacy of voir dire" leads us to doubt that petitioner was sentenced to death by a jury empaneled in compliance with the Fourteenth Amendment, his sentence cannot stand.11 Turner v. Murray, 476 U. S., at 37. Accordingly, the judgment of the Illinois Supreme Court affirming petitioner's death sentence is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting. The Court today holds that a juror who will always impose the death penalty for capital murder is not "impartial” in the sense required by the Sixth Amendment; that the Constitution requires that voir dire directed to this specific "bias" be provided upon the defendant's request; and that the more general questions about "fairness" and ability to "follow the law" that were asked during voir dire in this case were inadequate. Because these conclusions seem to me jointly and severally wrong, I dissent. 11 Our decision today has no bearing on the validity of petitioner's conviction. Witherspoon, 391 U. S., at 523, n. 21. SCALIA, J., dissenting I The Court today reaffirms our oft-repeated holding that the Sixth Amendment (which is binding on the States through the Fourteenth Amendment) does not require a jury trial at the sentencing phase of a capital case. Ante, at 726. See Clemons v. Mississippi, 494 U. S. 738, 745-746 (1990); Walton v. Arizona, 497 U. S. 639, 647–649 (1990); Cabana v. Bullock, 474 U. S. 376, 385 (1986); Spaziano v. Florida, 468 U. S. 447, 464 (1984); see also McMillan v. Pennsylvania, 477 U. S. 79, 93 (1986) (no right to jury sentencing in noncapital case). In a separate line of cases, however, we have said that the exclusion of persons who merely "express serious reservations about capital punishment" from sentencing juries violates the right to an “impartial jury” under the Sixth Amendment. Witherspoon v. Illinois, 391 U. S. 510, 518 (1968); see also Adams v. Texas, 448 U. S. 38, 40 (1980); Wainwright v. Witt, 469 U. S. 412, 423 (1985). The two propositions are, of course, contradictory: If capital sentencing is not subject to the Sixth Amendment jury guarantee, then neither is it subject to the subsidiary requirement that the requisite jury be impartial. The Court effectively concedes that the Sixth Amendment does not apply here, relying instead upon the Due Process Clause of the Fourteenth Amendment, which it says requires that any sentencing jury be "impartial" to the same extent that the Sixth Amendment requires a jury at the guilt phase to be impartial. Ante, at 727. I agree with that. See Gardner v. Florida, 430 U. S. 349, 358 (1977) (plurality opinion) (sentencing procedures must comply with the requirements of the Due Process Clause). I do not agree, however, that unconstitutional "partiality," for either Sixth Amendment or Fourteenth Amendment purposes, is established by the fact that a juror's standard of judgment—which he applies to the defendant on trial as he would to all others— happens to be the standard least favorable to the defense. Assume, for example, a criminal prosecution in which the SCALIA, J., dissenting State plans to prove only elements of circumstantial evidence x, y, and z. Surely counsel for the defendant cannot establish unconstitutional partiality (and hence obtain mandatory recusal) of a juror by getting him to state, on voir dire, that if, in a prosecution for this crime, elements x, y, and z were shown, he would always vote to convict. Such an admission would simply demonstrate that particular juror's standard of judgment regarding how evidence deserves to be weighed— and even though application of that standard will, of a certainty, cause the juror to vote to convict in the case at hand, the juror is not therefore "biased" or "partial" in the constitutionally forbidden sense. So also, it seems to me, with jurors' standards of judgment concerning appropriateness of the death penalty. The fact that a particular juror thinks the death penalty proper whenever capital murder is established does not disqualify him. To be sure, the law governing sentencing verdicts says that a jury may give less than the death penalty in such circumstances, just as, in the hypothetical case I have propounded, the law governing guilt verdicts says that a jury may acquit despite proof of elements x, y, and z. But in neither case does the requirement that a more defense-favorable option be left available to the jury convert into a requirement that all jurors must, on the facts of the case, be amenable to entertaining that option. A State in which the jury does the sentencing no more violates the due process requirement of impartiality by allowing the seating of jurors who favor the death penalty than does a State with judge-imposed sentencing by permitting the people to elect (or the executive to appoint) judges who favor the death penalty. Cf. United States v. Grinnell Corp., 384 U. S. 563, 583 (1966); United States v. Richards, 737 F. 2d 1307, 1311 (CA4 1984), cert. denied, 469 U. S. 1106 (1985); United States v. Thompson, 483 F. 2d 527, 530-531 (CA3 1973) (Adams, J., dissenting); 2 W. LaFave & J. Israel, Criminal Procedure §21.4(b), p. 747 (1984) (adherence to a particular legal principle is not a basis for challenging impar SCALIA, J., dissenting tiality of a judge). Indeed, it is precisely because such individual juror "biases" are constitutionally permissible that Witherspoon v. Illinois imposed the limitation that a State may not skew the makeup of the jury as a whole by excluding all death-scrupled jurors. 391 U. S., at 519-523. II In the Court's view, a juror who will always impose the death penalty upon proof of the required aggravating factors1 “will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do." Ante, at 729 (emphasis added); see also ante, at 738-739. I would agree with that if it were true that the instructions required jurors to deem certain evidence to be "mitigating" and to weigh that evidence in deciding the penalty. On that hypothesis, the juror's firm attachment to the death penalty would demonstrate an absence of the constitutionally requisite impartiality, which requires that the decisionmaker be able "conscientiously [to] apply the law and find the facts." Witt, supra, at 423; see also Lockhart v. McCree, 476 U. S. 162, 178 (1986); Adams, supra, at 45. The hypothesis, however, is not true as applied to the facts of the present case. Remarkably, the Court rests its 1It is important to bear in mind that the juror who will ignore the requirement of finding an aggravating factor is not at issue here. Petitioner does not contend that the voir dire question he seeks is necessary because the death-inclined juror will not impartially make the strictly factual determination, at the first stage of Illinois' two-part sentencing procedure, that the defendant is eligible for the death penalty because one of the statutorily required aggravating factors exists (in this case, the fact that the murder was a contract killing). Obviously, the standard question whether the juror can obey the court's instructions is enough to disclose that difficulty. Petitioner's theory-which the Court accepts, ante, at 735-736-is that the special voir dire question is necessary to identify those veniremen who, at the second, weighing stage, after having properly found the aggravating factor, "will never find enough mitigation to preclude imposing death." Brief for Petitioner 8. SCALIA, J., dissenting judgment upon a juror's inability to comply with instructions, without bothering to describe the key instructions. When one considers them, it is perfectly clear that they do not preclude a juror from taking the view that, for capital murder, a death sentence is always warranted. The jury in this case was instructed that "[a]ggravating factors are reasons why the Defendant should be sentenced to death"; that "[m]itigating factors are reasons why the Defendant should not be sentenced to death"; that the jury must "consider all the aggravating factors supported by the evidence and all the mitigating factors supported by the evidence"; and that the jury should impose a death sentence if it found, "from [its] consideration of all the evidence, that there are no mitigating factors sufficient to preclude imposition of a death sentence," App. 122-123.2 The instructions did not in any way further define what constitutes a "mitigating" or an "aggravating" factor, other than to point out that the jury's finding, at the death-eligibility stage, that petitioner committed a contract killing was necessarily an aggravator. As reflected in these instructions, Illinois law permitted each juror to define for himself whether a particular item of evidence was mitigating, in the sense that it provided a "reaso[n] why the Defendant should not be sentenced to death." Thus, it is simply not the case that Illinois law precluded a juror from taking the bright-line position that there are no valid reasons why a defendant who has committed a contract killing should not be sentenced to death. Such a juror does not "fail . . . to consider the evidence," ante, at 2 The Court attaches great weight to the use of the term "sufficient" in these instructions and in the governing statute. The Court views this term as implicitly establishing that the jurors must find some mitigation. (How else, the Court reasons, could the jury determine whether there is "sufficient" mitigation?) Ante, at 738. The inference is plainly fallacious: A direction to a person to consider whether there are "sufficient" reasons to do something does not logically imply that in some circumstance he must find something to be a "reason," and must find that reason to be "sufficient." |