# Skipper v. South Carolina

> Supreme Court of the United States · April 29, 1986 · 476 U.S. 1

URL: https://www.frixlaw.com/law-library/cases/9430484

## Case

- **Full name:** Skipper v. South Carolina
- **Court:** Supreme Court of the United States
- **Decided:** April 29, 1986
- **Citations:** 476 U.S. 1; 54 U.S.L.W. 4403; 106 S. Ct. 1669; 90 L. Ed. 2d 1; 1986 U.S. LEXIS 145
- **Precedential status:** Published
- **Opinion:** Concurrence by Powell
- **Judges:** White, Brennan, Marshall, Blackmun, Stevens, O'Connor, Powell, Burger, Rehnquist
- **Cited by:** 1,117 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9430484

## How later opinions describe it (automated extraction)

- holding that exclusion from the sentencing hearing of the testimony petitioner proffered regarding his good behavior during the over seven months he spent in jail awaiting trial deprived petitioner of his right to place before the sentencer relevant evidence in mitigation of p…
- holding that even where mitigating evidence does “not relate specifically to ... [the defendant’s] culpability for the crime he committed,” the defendant is entitled to offer any evidence that “would be ‘mitigating’ in the sense that they might serve ‘as a basis for a sentence…
- stating requirement that defendant be allowed to present evidence in rebuttal stems from “the elemental due process requirement that a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain.’ ” (quoting Gardner v. Florid…
- explaining that while inferences regarding future conduct do not “relate specifically to [a defendant’s] culpability for the crime he committed,” those inferences are “ ‘mitigating’ in the sense that they might serve ‘as a basis for a sentence less than death’ ” (quoting Locke…
- holding that evidence of a defendant's good conduct in jail, while not related specifically to his culpability for the crime that he committed, must be allowed before the jury because "such evidence would be mitigating in the sense that it might serve as a basis for a sentence…

## Opinion text

Justice Powell,
with whom The Chief Justice and Justice Rehnquist join,
concurring in the judgment.
Although I agree that petitioner’s death sentence must be vacated, that result is not required by our decisions in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). I would reverse the judgment below, not because the trial court excluded “relevant mitigating evidence” within the meaning of those decisions, id., at 114 ; see Lockett, supra, at 604-605 , but because petitioner was not allowed to rebut evidence and argument used against him. See Gardner v. Florida, 430 U. S. 349 (1977).
I
In the course of cross-examining petitioner at his sentencing proceeding, the prosecutor adduced testimony that petitioner had kicked the bars of his cell following his arrest. 1 In closing argument, the prosecutor contended that petitioner was likely to commit violent crimes in prison if allowed to live, and referred to the incident in petitioner’s cell to support his characterization of petitioner as a hopelessly violent man:
“[Petitioner’s] wife said he told her . . . that he had been raped in prison. With his history and what you know about him, who do you think the raper was and who do *10 you think the rapee was? And if given the opportunity again with this four time sexual abusing loser, who do you think will get raped in prison? Will it be Ronald Skipper, big old robust Ronald Skipper who knocks woman [sic] in the side of the head, or will it be some little boy in prison?
“These are the mitigating circumstances submitted by the defendant. . . . That the defendant has shown significant and positive adjustments to confinement and education and employment skills that enable him to be a stable and productive prisoner. Didn’t he admit kicking on the bars over there? That’s the kind of prisoner he is. Kicking on the bar. Kicking on the bars....” App. 14.
Petitioner had offered evidence that would undermine this line of argument: the testimony of two guards and a prison visitor, all of whom would have testified that petitioner had behaved well while in prison awaiting trial. The trial court excluded that evidence, relying on the Supreme Court of South Carolina’s decision in State v. Koon, 278 S. C. 528, 298 S. E. 2d 769 (1982). Petitioner was sentenced to death, and the Supreme Court of South Carolina affirmed the sentence. 285 S. C. 42, 328 S. E. 2d 58 (1985).
II
The Court correctly concludes that the exclusion of the proffered testimony violated due process. Ante, at 5, n. 1. In Gardner v. Florida, supra, we vacated a death sentence on the ground that the sentencing judge had considered a confidential presentence report without permitting the defendant to see the report. The plurality concluded that the defendant was denied due process because “the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” Id., at 362 (opinion of Stevens, J.). See also id., at 364 (White, J., concurring in judgment) (applying the same analysis *11 under the Eighth Amendment). As in Gardner , petitioner in this case was not permitted to “deny or explain” evidence on which his death sentence may, in part, have rested. This error was aggravated by the prosecutor’s closing argument, which emphasized and exaggerated petitioner’s misconduct in prison after his arrest. Therefore, petitioner’s death sentence violates the rule in Gardner .
Ill
A
The Court unnecessarily abandons this narrow ground of decision for a broader one, holding that the proffered testimony was mitigating evidence that must be admitted under the Eighth Amendment. In my view, the Court’s reasoning is flawed. The Eighth Amendment requires that the sentencing authority consider “relevant mitigating evidence” concerning the defendant’s “character or record” and “the circumstances of the offense.” Eddings v. Oklahoma, supra, at 114 ; Lockett v. Ohio, supra, at 604 . But the States, and not this Court, retain “the traditional authority” to determine what particular evidence within the broad categories described in Lockett and Eddings is relevant in the first instance. 438 U. S., at 604, n. 12 . As long as those determinations are reasonable — as long as they do not foreclose consideration of factors that may tend to reduce the defendant’s culpability for his crime, see Eddings, supra, at 115-116 — this Court should respect them.
I see no reason why a State could not, consistent with these principles, exclude evidence of a defendant’s good behavior in jail following his arrest, as long as the evidence is not offered to rebut testimony or argument such as that tendered by the prosecution here. Such evidence has no bearing at all on the “circumstances of the offense,” since it concerns the defendant’s behavior after the crime has been committed. Nor does it say anything necessarily relevant *12 about a defendant’s “character or record,” as that phrase was used in Lockett and Eddings .
Those decisions clearly focus on evidence that lessens the defendant’s culpability for the crime for which he was convicted. The sentencing jury in Lockett was barred from considering evidence of the defendant’s youth, her “lack of specific intent to cause death,” and “her relatively minor part in the crime.” 438 U. S., at 597 . Such evidence obviously bore strongly on the degree to which the defendant was morally responsible for her crime; indeed, we have since held that similar evidence -precludes application of the death penalty for precisely this reason. Enmund v. Florida, 458 U. S. 782, 798-801 (1982). In Eddings , the judge refused to consider the defendant’s youth and history of “beatings by a harsh father, and of severe emotional disturbance.” 455 U. S., at 115 . We emphasized that this evidence tended to diminish the defendant’s responsibility for his acts, noting that youths “are less mature and responsible than adults,” id., at 116 , and that they “‘deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults.’” Id., at 115, n. 11 , quoting Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders, Confronting Youth Crime 7 (1978). The type of evidence required to be admitted under Lockett and Eddings thus pertained to conduct and circumstances prior to the crime, and to the nature and extent of the defendant’s participation in the crime. In this case, for the first time, the Court classifies as “mitigating” conduct that occurred after the crime and after the accused has been charged. Almost by definition, such conduct neither excuses the defendant’s crime nor reduces his responsibility for its commission. It cannot, therefore, properly be considered “mitigating evidence” that the sentencer must consider under the Constitution.
*13 B
It is useful to recall the origins of the rule the Court applies today. Ten years ago, in Woodson v. North Carolina, 428 U. S. 280 (1976), we determined that States could not carry out the death penalty without some “particularized consideration of relevant aspects of the character and record of each convicted defendant.” Id., at 303 (plurality opinion). See also Roberts v. Louisiana, 428 U. S. 325, 333-336 (1976) (plurality opinion). That determination flowed from the conviction that “individual culpability is not always measured by the category of the crime committed.” Furman v. Georgia, 408 U. S. 238, 402 (1972) (Burger, C. J., dissenting), quoted in Woodson, supra, at 298 . See also Roberts, supra, at 333 . Thus, we reasoned, it was unconstitutionally arbitrary to execute a man or woman without considering factors showing that death was not a “just and appropriate sentence.” Woodson, supra, at 304 . Cf. Enmund v. Florida, supra.
Lockett and Eddings followed naturally from our decision in Woodson . But it also follows from Woodson and its companion cases that States are only bound to consider those factors that are central to the fundamental justice of execution. We have recognized that society has important and legitimate interests in retribution and deterrence, and that these interests provide the necessary justification for imposing the death penalty. Gregg v. Georgia, 428 U. S. 153, 183-187 (1976) (joint opinion). Society’s legitimate desire for retribution is less strong with respect to a defendant who played a minor role in the murder for which he was convicted. Cf. Lockett, 438 U. S., at 597 . Similarly, the death penalty has little deterrent force against defendants who have reduced capacity for considered choice. Cf. Eddings, 455 U. S., at 115, n. 11 . Evidence concerning the degree of the defendant’s participation in the crime, or his age and emotional history, thus bear directly on the fundamental justice *14 of imposing capital punishment. That simply cannot be said of the defendant’s behavior in prison following his arrest. Society’s interest in retribution can hardly be lessened by the knowledge that a brutal murderer, for self-interested reasons, has been a model of deportment in prison while awaiting trial or sentence. Nor is society’s important interest in deterrence served by allowing such a murderer to avoid the death penalty by following his counsel’s advice to behave himself in a tightly controlled prison environment. 2
IV
Even if a defendant’s apparent capacity to adjust well to prison fell within the scope of the mitigating factors that must be considered under Lockett and Eddings , a State should have the right to exclude evidence of conduct in prison while awaiting trial or sentencing. One arrested for a capital crime, and particularly a convicted defendant awaiting sentencing, has every incentive to behave flawlessly in prison if good behavior might cause the sentencing authority to spare his life. 3 Good behavior in those circumstances would *15 rarely be predictive as to the conduct of the prisoner after sentence has been imposed. For this further reason, state courts reasonably could determine that such evidence has little or no probative value. Certainly it will not aid the sentencer in “distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Furman v. Georgia, supra, at 313 (White, J., concurring), quoted in Gregg v. Georgia, supra, at 188.
The Court’s contrary determination apparently rests on the notion that the States have little or no authority to decide that certain types of evidence may have insufficient probative value to justify their admission. But cf. ante, at 7, n. 2. Lockett explicitly rejected such an approach, 438 U. S., at 604, n. 12 , and for good reason. This Court has no special expertise in deciding whether particular categories of evidence are too speculative or insubstantial to merit consideration by the sentencer. Cf. Barefoot v. Estelle, 463 U. S. 880, 899-902 (1983). It makes little sense, then, to substitute our judgment of relevance for that of state courts and legislatures. Nor is such intrusive review necessary in this context to guard against fundamentally unjust executions. One cannot plausibly equate the type of evidence at issue in Lockett and Eddings with evidence that a capital defendant has refrained from assaulting anyone in prison while awaiting trial or sentencing. I would therefore leave the disposition of evidence of the kind involved here to the States, subject to the requirements of due process.
The following colloquy took place at the close of the cross-examination:
“Q: You are the fellow that when you got to the Horry County jail went to kicking the cell, right?
“A: Yes, Sir.
“Q: That’s you. [T]hat’s the kind of fellow you are, but you are nice today, right?” App. 7.
We have noted that for many types of murders, “the death penalty undoubtedly is a significant deterrent.” Gregg v. Georgia, 428 U. S. 153, 185-186 (1976). See also id., at 186 (actual deterrent value of death penalty in particular contexts “is a complex factual issue the resolution of which properly rests with the legislatures”). This deterrent value inevitably is diluted when defendants are allowed to escape execution based on factors that have nothing to do with their criminal responsibility. The consequences of such mistakes extend further than the cases in which they occur, for when some defendants are able to avoid execution based on irrelevant criteria, there is a far graver risk of injustice in executing others. See Furman v. Georgia, 408 U. S. 238, 311-314 (1972) (White, J., concurring). I thus find it difficult to accept the proposition that the Constitution compels States to consider factors, such as a defendant’s willingness to conform to prison rules, that plainly undermine deterrence without advancing retributive goals.
After today’s decision competent defense counsel in capital cases will instruct their clients to behave like Eagle Scouts while awaiting trial, and particularly while awaiting sentencing. In capital cases, this will be more important to a defendant than the customary advice of counsel in a criminal *15 trial to advise his client to behave himself while in the courtroom. It is indeed novel doctrine that compliance with this advice by a defendant charged with capital murder becomes a “mitigating factor” that the sentencing judge or jury must — as a matter of constitutional law — consider in passing sentence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9430484. Public record. Not legal advice.