PENRY v. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION

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782 OCTOBER TERM, 2000
Syllabus
PENRY v. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
certiorari to the united states court of appeals for
the fifth circuit
No. 00–6677. Argued March 27, 2001—Decided June 4, 2001
In 1989, this Court held that petitioner Penry had been sentenced to death
in violation of the Eighth Amendment. At the close of the penalty
hearing during Penry’s first Texas capital murder trial, the jury was
instructed to answer three statutorily mandated “special issues”:
(1) whether Penry’s conduct was committed deliberately and with the
reasonable expectation that death would result; (2) whether it was prob-
able that he would be a continuing threat to society; and (3) whether
the killing was unreasonable in response to any provocation by the
deceased. Although Penry had offered extensive evidence that he was
mentally retarded and had been severely abused as a child, the jury
was never told it could consider and give mitigating effect to that
evidence in imposing sentence. In holding that the jury had not been
adequately instructed with respect to the mitigating evidence, the Court
found, among other things, that none of the special issues was broad
enough to allow the jury to consider and give effect to that evidence.
Penry v. Lynaugh, 492 U. S. 302 (Penry I). When Texas retried Penry
in 1990, he was again found guilty of capital murder. During the pen-
alty phase, the defense again put on extensive evidence regarding Pen-
ry’s mental impairments and childhood abuse. On direct examination
by the defense, a clinical neuropsychologist, Dr. Price, testified that he
believed Penry suffered from organic brain impairment and mental re-
tardation. During cross-examination, Price cited as one of the records
he had reviewed in preparing his testimony a psychiatric evaluation
prepared by Dr. Peebles in 1977 at the request of Penry’s then-counsel
to determine Penry’s competency to stand trial on an earlier charge
unrelated to the murder at issue. Over a defense objection, Price re-
cited a portion of that evaluation which stated that it was Peebles’ pro-
fessional opinion that if Penry were released, he would be dangerous to
others. When it came time to submit the case to the jury, the trial
court instructed the jury to determine Penry’s sentence by answer-
ing the same three special issues that were at issue in Penry I. The
trial court then gave a “supplemental instruction”: “[W]hen you delib-
erate on the . . . special issues, you are to consider mitigating circum-
stances, if any, supported by the evidence . . . . If you find [such]

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circumstances . . . , you must decide how much weight they deserve, if
any, and therefore, give effect and consideration to them in assessing
the defendant’s personal culpability at the time you answer the special
issue. If you determine, when giving effect to the mitigating evidence,
if any, that a life sentence, as reflected by a negative finding to the issue
under consideration, rather than a death sentence, is an appropriate re-
sponse to [Penry’s] personal culpability . . . , a negative finding should
be given to one of the special issues.” The verdict form itself, however,
contained only the text of the three special issues, and gave the jury
two choices with respect to each: “Yes” or “No.” Because the jury
unanimously answered “yes” to each special issue, the court sentenced
Penry to death in accordance with state law. In affirming, the Texas
Court of Criminal Appeals rejected Penry’s claims that the admission
of language from the Peebles report violated Penry’s Fifth Amendment
privilege against self-incrimination, and that the jury instructions were
constitutionally inadequate because they did not permit the jury to con-
sider and give effect to his particular mitigating evidence. With re-
spect to the latter, the court held that the supplemental instruction met
Penry I’s constitutional requirements. After his petition for state ha-
beas corpus relief was denied, Penry petitioned for federal habeas relief
under 28 U. S. C. § 2254. The District Court found that the state appel-
late court’s conclusions on both of Penry’s claims were neither contrary
to, nor an unreasonable application of, clearly established federal law.
The Fifth Circuit denied a certificate of appealability.
Held:
1. Penry’s argument is unavailing that the admission into evidence
of the portion of the Peebles report referring to his future dangerous-
ness violated his Fifth Amendment privilege against self-incrimination.
This case is distinguishable from Estelle v. Smith, 451 U. S. 454, in which
the Court held that the admission of a psychiatrist’s testimony on the
topic of future dangerousness, based on a defendant’s uncounseled state-
ments, violated the Fifth Amendment. The Court need not and does
not decide whether the several respects in which this case differs from
Estelle affect the merits of Penry’s claim. Rather, the question is
whether the Texas court’s decision was “contrary to” or an “unrea-
sonable application” of this Court’s precedent. 28 U. S. C. § 2254(d)(1);
see Williams v. Taylor, 529 U. S. 362. It was not. The differences
between this case and Estelle are substantial, and the Court’s Estelle
opinion suggested that its holding was limited to the “distinct circum-
stances” presented there. 451 U. S., at 466. It also indicated that the
Fifth Amendment analysis might be different where a defendant intro-
duces psychiatric evidence at the penalty phase. Id., at 472. Indeed,
the Court has never extended Estelle’s Fifth Amendment holding be-
yond its particular facts. Cf., e. g., Buchanan v. Kentucky, 483 U. S.

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784 PENRY v. JOHNSON
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402. It therefore cannot be said that it was objectively unreasonable
for the Texas court to conclude that Penry is not entitled to relief on his
Fifth Amendment claim. See Williams, supra, at 409. Even if the
Court’s precedent were to establish squarely that use of the Peebles
report violated the Fifth Amendment, that error would justify over-
turning Penry’s sentence only if he could establish that the error had
a substantial and injurious effect or influence in determining the
jury’s verdict. E. g., Brecht v. Abrahamson, 507 U. S. 619, 637. There
is considerable doubt that Penry could make such a showing. The ex-
cerpt from the Peebles report was neither the first nor the last expert
opinion the jury heard to the effect that Penry posed a future danger
and was by no means the key to the State’s case on future dangerous-
ness. Pp. 793–796.
2. The jury instructions at Penry’s resentencing, however, did not
comply with the Court’s mandate in Penry I. To the extent the Texas
appellate court believed that Penry I was satisfied merely because a
supplemental instruction was given, the court clearly misapprehended
that prior decision. The key under Penry I is that the jury be able
to “consider and give effect to [a defendant’s mitigating] evidence in
imposing sentence.” 492 U. S., at 319. To the extent the state court
concluded that the substance of the jury instructions given at Penry’s
resentencing satisfied Penry I, that determination was objectively
unreasonable. The three special issues submitted to the jury were
identical to the ones found inadequate in Penry I. Although the supple-
mental instruction mentioned mitigating evidence, the mechanism it
purported to create for the jurors to give effect to that evidence was
ineffective and illogical. The jury was clearly instructed that a “yes”
answer to a special issue was appropriate only when supported by the
evidence beyond a reasonable doubt, and that a “no” answer was appro-
priate only when there was a reasonable doubt as to whether the answer
to a special issue should be “yes.” The verdict form listed the three
special issues and, with no mention of mitigating circumstances, con-
firmed and clarified the jury’s two choices with respect to each special
issue. In the State’s view, however, the jury was also told that it could
ignore these clear guidelines and—even if there was in fact no reason-
able doubt as to the matter inquired about—answer any special issue in
the negative if the mitigating circumstances warranted a life sentence.
In other words, the jury could change one or more truthful “yes” an-
swers to an untruthful “no” answer in order to avoid a death sentence
for Penry. The supplemental instruction thereby made the jury charge
as a whole internally contradictory, and placed law-abiding jurors in
an impossible situation. The comments of the prosecutor and defense
counsel, as well as the comments of the court during voir dire, did

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little to clarify the confusion caused by the instructions themselves.
Any realistic assessment of the manner in which the supplemental in-
struction operated would therefore lead to the same conclusion the
Court reached in Penry I: “[A] reasonable juror could well have believed
that there was no vehicle for expressing the view that Penry did not
deserve to be sentenced to death based upon his mitigating evidence.”
492 U. S., at 326. Pp. 796–804.
215 F. 3d 504, affirmed in part, reversed in part, and remanded.
O’Connor, J., delivered the opinion of the Court, Parts I, II, and III–A
of which were unanimous, and Part III–B of which was joined by Ste-
vens, Kennedy, Souter, Ginsburg, and Breyer, JJ. Thomas, J., filed
an opinion concurring in part and dissenting in part, in which Rehnquist,
C. J., and Scalia, J., joined, post, p. 804.
Robert S. Smith argued the cause for petitioner. With
him on the briefs were Julia Tarver and John E. Wright.
Andy Taylor, First Assistant Attorney General of Texas,
argued the cause for respondent. With him on the brief
were John Cornyn, Attorney General, Gregory S. Coleman,
Solicitor General, Michael T. McCaul, Deputy Attorney Gen-
eral, Edward L. Marshall, Senior Assistant Attorney Gen-
eral, and Gena Blount Bunn and Tommy L. Skaggs, Assist-
ant Attorneys General.
Gene C. Schaerr argued the cause for the State of Alabama
as amicus curiae urging affirmance. With him on the brief
were Bill Pryor, Attorney General, J. Clayton Crenshaw,
Assistant Attorney General, Carter G. Phillips, and Rebecca
K. Smith.*
*Briefs of amici curiae urging reversal were filed for the American
Association on Mental Retardation et al. by James W. Ellis, Michael B.
Browde, Jeffrey J. Pokorak, and Stanley S. Herr; and for the National
Association of Criminal Defense Lawyers by Edward M. Chikofsky, Lisa
B. Kemler, John H. Pickering, and Christopher J. Herrling.
Briefs of amici curiae urging affirmance were filed for the Criminal
Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson;
and for Justice for All by Patrick F. Philbin.
Richard Wilson and William J. Edwards filed a brief for the Interna-
tional Association for the Scientific Study of Intellectual Disabilities et al.
as amici curiae.

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786 PENRY v. JOHNSON
Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
In 1989, we held that Johnny Paul Penry had been sen-
tenced to death in violation of the Eighth Amendment be-
cause his jury had not been adequately instructed with re-
spect to mitigating evidence. See Penry v. Lynaugh, 492
U. S. 302 (1989) (Penry I). The State of Texas retried Penry
in 1990, and that jury also found him guilty of capital murder
and sentenced him to death. We now consider whether the
jury instructions at Penry’s resentencing complied with our
mandate in Penry I. We also consider whether the admis-
sion into evidence of statements from a psychiatric report
based on an uncounseled interview with Penry ran afoul of
the Fifth Amendment.
I
Johnny Paul Penry brutally raped and murdered Pamela
Carpenter on October 25, 1979. In 1980, a Texas jury found
him guilty of capital murder. At the close of the penalty
hearing, the jury was instructed to answer three statutorily
mandated “special issues”:
“ ‘(1) whether the conduct of the defendant that caused
the death of the deceased was committed deliberately
and with the reasonable expectation that the death of
the deceased or another would result;
“ ‘(2) whether there is a probability that the defendant
would commit criminal acts of violence that would con-
stitute a continuing threat to society; and
“ ‘(3) if raised by the evidence, whether the conduct of
the defendant in killing the deceased was unreasonable
in response to the provocation, if any, by the deceased.’ ”
Id., at 310 (quoting Tex. Code Crim. Proc. Ann., Art.
37.071(b) (Vernon 1981 and Supp. 1989)).
The jury answered “yes” to each issue and, as required by
statute, the trial court sentenced Penry to death. 492 U. S.,
at 310–311.

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Although Penry had offered extensive evidence that he
was mentally retarded and had been severely abused as a
child, the jury was never instructed that it could consider
and give mitigating effect to that evidence in imposing sen-
tence. Id., at 320. Nor was any of the three special issues
broad enough in scope that the jury could consider and give
effect to the mitigating evidence in answering the special
issue. Id., at 322–325. While Penry’s mental retardation
was potentially relevant to the first special issue—whether
he had acted deliberately—we found no way to be sure
that the jurors fully considered the mitigating evidence as
it bore on the broader question of Penry’s moral culpability.
Id., at 322–323. As to the second issue—whether Penry
would be a future danger—the evidence of his mental re-
tardation and history of abuse was “relevant only as an
aggravating factor.” Id., at 323 (emphasis in original).
And the evidence was simply not relevant in a mitigating
way to the third issue—whether Penry had unreasonably
responded to any provocation. Id., at 324–325.
The comments of counsel also failed to clarify the jury’s
role. Defense counsel had urged the jurors to vote “no” on
one of the special issues if they believed that Penry, because
of the mitigating evidence, did not deserve to be put to death.
The prosecutor, however, had reminded them of their “oath
to follow the law and . . . answe[r] these questions based on
the evidence and following the law.” Id., at 325 (internal
quotation marks omitted).
“In light of the prosecutor’s argument, and . . . in the ab-
sence of instructions informing the jury that it could consider
and give effect to the mitigating evidence of Penry’s mental
retardation and abused background by declining to impose
the death penalty,” we concluded that “a reasonable juror
could well have believed that there was no vehicle for ex-
pressing the view that Penry did not deserve to be sentenced
to death based upon his mitigating evidence.” Id., at 326,

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328. We thus vacated Penry’s sentence, confirming that in
a capital case, “[t]he sentencer must . . . be able to consider
and give effect to [mitigating] evidence in imposing sen-
tence,” so that “ ‘the sentence imposed . . . reflec[ts] a rea-
soned moral response to the defendant’s background, charac-
ter, and crime.’ ” Id., at 319 (quoting California v. Brown,
479 U. S. 538, 545 (1987) (O’Connor, J., concurring) (emphasis
in original)).
Penry was retried in 1990 and again found guilty of capital
murder. During the penalty phase, the defense again put
on extensive evidence regarding Penry’s mental impairments
and childhood abuse. One defense witness on the subject of
Penry’s mental impairments was Dr. Randall Price, a clinical
neuropsychologist. On direct examination, Dr. Price testi-
fied that he believed Penry suffered from organic brain im-
pairment and mental retardation. App. 276–279; 878. In
the course of cross-examining Dr. Price, the prosecutor asked
what records Price had reviewed in preparing his testimony.
Price cited 14 reports, including a psychiatric evaluation of
Penry prepared by Dr. Felix Peebles on May 19, 1977. Id.,
at 327. The Peebles report had been prepared at the re-
quest of Penry’s then-counsel to determine Penry’s compe-
tency to stand trial on a 1977 rape charge—unrelated to the
rape and murder of Pamela Carpenter. Id., at 55–60, 125.
The prosecutor asked Dr. Price to read a specific portion
of the Peebles report for the jury. Over the objection of
defense counsel, Dr. Price recited that it was Dr. Peebles’
“professional opinion that if Johnny Paul Penry were re-
leased from custody, that he would be dangerous to other
persons.” Id., at 413. The prosecutor again recited this
portion of the Peebles report during his closing argument.
Id., at 668.
When it came time to submit the case to the jury, the court
instructed the jury to determine Penry’s sentence by an-
swering three special issues—the same three issues that

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had been put before the jury in Penry I. Specifically, the
jury had to determine whether Penry acted deliberately
when he killed Pamela Carpenter; whether there was a prob-
ability that Penry would be dangerous in the future; and
whether Penry acted unreasonably in response to provoca-
tion. App. 676–678. Cf. Penry I, 492 U. S., at 320.
The court told the jury how to determine its answers to
those issues:
“[B]efore any issue may be answered ‘Yes,’ all jurors
must be convinced by the evidence beyond a reasonable
doubt that the answer to such issue should be ‘Yes.’ . . .
[I]f any juror, after considering the evidence and these
instructions, has a reasonable doubt as to whether the
answer to a Special Issue should be answered ‘Yes,’ then
such juror should vote ‘No’ to that Special Issue.”
App. 672–673.
The court explained the consequences of the jury’s decision:
“[I]f you return an affirmative finding on each of the
special issues submitted to you, the court shall sen-
tence the defendant to death. You are further in-
structed that if you return a negative finding on any
special issue submitted to you, the court shall sen-
tence the defendant to the Texas Department of Correc-
tions for life. You are therefore instructed that your
answers to the special issues, which determine the pun-
ishment to be assessed the defendant by the court,
should be reflective of your finding as to the personal
culpability of the defendant, JOHNNY PAUL PENRY,
in this case.” Id., at 674–675.
The court then gave the following “supplemental
instruction”:
“You are instructed that when you deliberate on the
questions posed in the special issues, you are to consider

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Opinion of the Court
mitigating circumstances, if any, supported by the evi-
dence presented in both phases of the trial, whether pre-
sented by the state or the defendant. A mitigating cir-
cumstance may include, but is not limited to, any aspect
of the defendant’s character and record or circumstances
of the crime which you believe could make a death sen-
tence inappropriate in this case. If you find that there
are any mitigating circumstances in this case, you must
decide how much weight they deserve, if any, and there-
fore, give effect and consideration to them in assessing
the defendant’s personal culpability at the time you an-
swer the special issue. If you determine, when giving
effect to the mitigating evidence, if any, that a life sen-
tence, as reflected by a negative finding to the issue
under consideration, rather than a death sentence, is an
appropriate response to the personal culpability of the
defendant, a negative finding should be given to one of
the special issues.” Id., at 675.
A complete copy of the instructions was attached to the
verdict form, and the jury took the entire packet into the
deliberation room. Tr. of Oral Arg. 31. The verdict form
itself, however, contained only the text of the three special
issues, and gave the jury two choices with respect to each
special issue: “We, the jury, unanimously find and determine
beyond a reasonable doubt that the answer to this Special
Issue is ‘Yes,’ ” or “We, the jury, because at least ten (10)
jurors have a reasonable doubt as to the matter inquired
about in this Special Issue, find and determine that the an-
swer to this Special Issue is ‘No.’ ” App. 676–678.
After deliberating for approximately 21 ⁄ 2 hours, the jury
returned its punishment verdict. See 51 Record 1948, 1950.
The signed verdict form confirmed that the jury had unani-
mously agreed that the answer to each special issue was
“yes.” App. 676–678. In accordance with state law, the
court sentenced Penry to death.

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Opinion of the Court
The Texas Court of Criminal Appeals affirmed Penry’s
conviction and sentence. The court rejected Penry’s claim
that the admission of language from the 1977 Peebles report
violated Penry’s Fifth Amendment privilege against self-
incrimination. The court reasoned that because Dr. Peebles
had examined Penry two years prior to the murder of Pam-
ela Carpenter, Penry had not at that time been “confronted
with someone who was essentially an agent for the State
whose function was to gather evidence that might be used
against him in connection with the crime for which he was
incarcerated.” Penry v. State, 903 S. W. 2d 715, 759–760
(1995) (internal quotation marks and citation omitted).
The court also rejected Penry’s claim that the jury instruc-
tions given at his second sentencing hearing were constitu-
tionally inadequate because they did not permit the jury to
consider and give effect to his mitigating evidence of mental
retardation and childhood abuse. The court cited Penry I
for the proposition that when a defendant proffers “miti-
gating evidence that is not relevant to the special issues
or that has relevance to the defendant’s moral culpability
beyond the scope of the special issues . . . the jury must be
given a special instruction in order to allow it to consider
and give effect to such evidence.” 903 S. W. 2d, at 765.
Quoting the supplemental jury instruction given at Penry’s
second trial, see supra, at 789–790, the court overruled Pen-
ry’s claim of error. The court stated that “a nullification in-
struction such as this one is sufficient to meet the constitu-
tional requirements of [Penry I].” 903 S. W. 2d, at 765.
In 1998, after his petition for state habeas corpus relief
was denied, see App. 841 (trial court order); id., at 863 (Court
of Criminal Appeals order), Penry filed a petition for a writ
of habeas corpus pursuant to 28 U. S. C. § 2254 (1994 ed. and
Supp. V) in the United States District Court for the South-
ern District of Texas. The District Court rejected both
of Penry’s claims, finding that the Texas Court of Criminal
Appeals’ conclusions on both points were neither contrary

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to, nor an unreasonable application of, clearly established
federal law. App. 893, 920. After full briefing and ar-
gument, the United States Court of Appeals for the Fifth
Circuit denied a certificate of appealability. 215 F. 3d 504
(2000).
We stayed Penry’s execution and granted certiorari to
consider Penry’s constitutional arguments regarding the ad-
mission of the Peebles report and the adequacy of the jury
instructions. 531 U. S. 1010 (2000).
II
Because Penry filed his federal habeas petition after the
enactment of the Antiterrorism and Effective Death Penalty
Act of 1996, the provisions of that law govern the scope of
our review. Specifically, 28 U. S. C. § 2254(d)(1) (1994 ed.,
Supp. V) prohibits a federal court from granting an applica-
tion for a writ of habeas corpus with respect to a claim adju-
dicated on the merits in state court unless that adjudication
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
Last Term in Williams v. Taylor, 529 U. S. 362 (2000), we
explained that the “contrary to” and “unreasonable appli-
cation” clauses of § 2254(d)(1) have independent meaning.
Id., at 404. A state court decision will be “contrary to”
our clearly established precedent if the state court either
“applies a rule that contradicts the governing law set forth
in our cases,” or “confronts a set of facts that are materially
indistinguishable from a decision of this Court and never-
theless arrives at a result different from our precedent.”
Id., at 405–406. A state court decision will be an “unrea-
sonable application of ” our clearly established precedent
if it “correctly identifies the governing legal rule but applies
it unreasonably to the facts of a particular prisoner’s case.”
Id., at 407–408.

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“[A] federal habeas court making the ‘unreasonable appli-
cation’ inquiry should ask whether the state court’s ap-
plication of clearly established federal law was objectively
unreasonable.” Id., at 409. Distinguishing between an
unreasonable and an incorrect application of federal law, we
clarified that even if the federal habeas court concludes that
the state court decision applied clearly established federal
law incorrectly, relief is appropriate only if that application
is also objectively unreasonable. Id., at 410–411.
Although the District Court evaluated the Texas Court
of Criminal Appeals’ disposition of Penry’s claims under a
standard we later rejected in Williams, see App. 882 (stating
that an application of law to facts is “unreasonable ‘only
when it can be said that reasonable jurists considering the
question would be of one view that the state court rul-
ing was incorrect’ ” (citation omitted)), the Fifth Circuit
articulated the proper standard of review, as set forth in
§ 2254(d)(1) and clarified in Williams, and denied Penry
relief. Guided by this same standard, we now turn to the
substance of Penry’s claims.
III
A
Penry contends that the admission into evidence of the
portion of the 1977 Peebles report that referred to Penry’s
future dangerousness violated his Fifth Amendment privi-
lege against self-incrimination because he was never warned
that the statements he made to Dr. Peebles might later be
used against him. The Texas Court of Criminal Appeals
disagreed, concluding that when Dr. Peebles interviewed
Penry, Peebles was not acting as an agent for the State in
order to gather evidence that might be used against Penry.
903 S. W. 2d, at 759.
Penry argues that this case is indistinguishable from
Estelle v. Smith, 451 U. S. 454 (1981). In Estelle, we con-
sidered a situation in which a psychiatrist conducted an

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Opinion of the Court
ostensibly neutral competency examination of a capital de-
fendant, but drew conclusions from the defendant’s un-
counseled statements regarding his future dangerousness,
and later testified for the prosecution on that crucial issue.
We likened the psychiatrist to “an agent of the State re-
counting unwarned statements made in a postarrest cus-
todial setting,” and held that “[a] criminal defendant, who
neither initiates a psychiatric evaluation nor attempts to
introduce any psychiatric evidence, may not be compelled to
respond to a psychiatrist if his statements can be used
against him at a capital sentencing proceeding.” Id., at 467–
468. The admission of the psychiatrist’s testimony under
those “distinct circumstances” violated the Fifth Amend-
ment. Id., at 466.
This case differs from Estelle in several respects. First,
the defendant in Estelle had not placed his mental condition
at issue, id., at 457, n. 1, whereas Penry himself made his
mental status a central issue in both the 1977 rape case and
his trials for Pamela Carpenter’s rape and murder. Second,
in Estelle, the trial court had called for the competency
evaluation and the State had chosen the examining psychia-
trist. Id., at 456–457. Here, however, it was Penry’s own
counsel in the 1977 case who requested the psychiatric exam
performed by Dr. Peebles. Third, in Estelle, the State
had called the psychiatrist to testify as a part of its af-
firmative case. Id., at 459. Here, it was during the cross-
examination of Penry’s own psychological witness that the
prosecutor elicited the quotation from the Peebles report.
And fourth, in Estelle, the defendant was charged with a
capital crime at the time of his competency exam, and it
was thus clear that his future dangerousness would be a
specific issue at sentencing. Penry, however, had not yet
murdered Pamela Carpenter at the time of his interview
with Dr. Peebles.
We need not and do not decide whether these differ-
ences affect the merits of Penry’s Fifth Amendment claim.

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Rather, the question is whether the Texas court’s decision
was contrary to or an unreasonable application of our prece-
dent. 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V). We think
it was not. The differences between this case and Estelle
are substantial, and our opinion in Estelle suggested that our
holding was limited to the “distinct circumstances” pre-
sented there. It also indicated that the Fifth Amendment
analysis might be different where a defendant “intends to
introduce psychiatric evidence at the penalty phase.” 451
U. S., at 472. Indeed, we have never extended Estelle’s
Fifth Amendment holding beyond its particular facts. Cf.,
e. g., Buchanan v. Kentucky, 483 U. S. 402 (1987) (Estelle
does not apply, and it does not violate the Fifth Amendment,
where a prosecutor uses portions of a psychiatric evaluation
requested by a defendant to rebut psychiatric evidence pre-
sented by the defendant at trial). We therefore cannot say
that it was objectively unreasonable for the Texas court to
conclude that Penry is not entitled to relief on his Fifth
Amendment claim.
Even if our precedent were to establish squarely that
the prosecution’s use of the Peebles report violated Penry’s
Fifth Amendment privilege against self-incrimination, that
error would justify overturning Penry’s sentence only if
Penry could establish that the error “ ‘had substantial
and injurious effect or influence in determining the jury’s
verdict.’ ” Brecht v. Abrahamson, 507 U. S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U. S. 750, 776
(1946)). We think it unlikely that Penry could make such
a showing.
The excerpt from the Peebles report bolstered the State’s
argument that Penry posed a future danger, but it was
neither the first nor the last opinion the jury heard on
that point. Four prison officials testified that they were of
the opinion that Penry “would commit criminal acts of vio-
lence that would constitute a continuing threat to society.”
App. 94, 104, 138; 47 Record 970. Three psychiatrists tes-

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tified that Penry was a dangerous individual and likely
to remain so. Two were the State’s own witnesses. See
App. 487, 557. The third was Dr. Price—the same defense
witness whom the prosecutor had asked to read from the
Peebles report. Before that recitation, Dr. Price had stated
his own opinion that “[i]f [Penry] was in the free world,
I would consider him dangerous.” Id., at 392.
While the Peebles report was an effective rhetorical tool,
it was by no means the key to the State’s case on the ques-
tion whether Penry was likely to commit future acts of
violence. We therefore have considerable doubt that the
admission of the Peebles report, even if erroneous, had a
“substantial and injurious effect” on the verdict. Brecht
v. Abrahamson, supra, at 637. Accordingly, we will not
disturb the Texas Court of Criminal Appeals’ rejection of
Penry’s Fifth Amendment claim.
B
Penry also contends that the jury instructions given at
his second sentencing hearing did not comport with our
holding in Penry I because they did not provide the jury
with a vehicle for expressing its reasoned moral response
to the mitigating evidence of Penry’s mental retardation
and childhood abuse. The Texas Court of Criminal Appeals
disagreed. The court summarized Penry I as holding that
when a defendant proffers “mitigating evidence that is not
relevant to the special issues or that has relevance to the
defendant’s moral culpability beyond the scope of the special
issues . . . the jury must be given a special instruction in
order to allow it to consider and give effect to such evi-
dence.” 903 S. W. 2d, at 765. The court then stated that
the supplemental jury instruction given at Penry’s second
sentencing hearing satisfied that mandate. Ibid.
The Texas court did not make the rationale of its hold-
ing entirely clear. On one hand, it might have believed
that Penry I was satisfied merely by virtue of the fact that

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a supplemental instruction had been given. On the other
hand, it might have believed that it was the substance of that
instruction which satisfied Penry I.
While the latter seems to be more likely, to the extent
it was the former, the Texas court clearly misapprehended
our prior decision. Penry I did not hold that the mere men-
tion of “mitigating circumstances” to a capital sentencing
jury satisfies the Eighth Amendment. Nor does it stand for
the proposition that it is constitutionally sufficient to inform
the jury that it may “consider” mitigating circumstances in
deciding the appropriate sentence. Rather, the key under
Penry I is that the jury be able to “consider and give effect
to [a defendant’s mitigating] evidence in imposing sentence.”
492 U. S., at 319 (emphasis added). See also Johnson v.
Texas, 509 U. S. 350, 381 (1993) (O’Connor, J., dissenting)
(“[A] sentencer [must] be allowed to give full consideration
and full effect to mitigating circumstances” (emphasis in
original)). For it is only when the jury is given a “vehicle
for expressing its ‘reasoned moral response’ to that evidence
in rendering its sentencing decision,” Penry I, 492 U. S., at
328, that we can be sure that the jury “has treated the de-
fendant as a ‘uniquely individual human bein[g]’ and has
made a reliable determination that death is the appropriate
sentence,” id., at 319 (quoting Woodson v. North Carolina,
428 U. S. 280, 304, 305 (1976)).
The State contends that the substance of the supple-
mental instruction satisfied Penry I because it provided the
jury with the requisite vehicle for expressing its reasoned
moral response to Penry’s particular mitigating evidence.
Specifically, the State points to the admittedly “less than
artful” portion of the supplemental instruction which says:
“If you find that there are any mitigating circumstances
in this case, you must decide how much weight they de-
serve, if any, and therefore, give effect and consideration
to them in assessing the defendant’s personal culpability
at the time you answer the special issue. If you de-

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termine, when giving effect to the mitigating evidence,
if any, that a life sentence, as reflected by a negative
finding to the issue under consideration, rather than a
death sentence, is an appropriate response to the per-
sonal culpability of the defendant, a negative finding
should be given to one of the special issues.” App. 675
(emphasis added). See also Brief for Respondent 16.
We see two possible ways to interpret this confusing in-
struction. First, as the portions italicized above indicate,
it can be understood as telling the jurors to take Penry’s
mitigating evidence into account in determining their truth-
ful answers to each special issue. Viewed in this light, how-
ever, the supplemental instruction placed the jury in no bet-
ter position than was the jury in Penry I. As we made clear
in Penry I, none of the special issues is broad enough to
provide a vehicle for the jury to give mitigating effect to the
evidence of Penry’s mental retardation and childhood abuse.
Cf. 492 U. S., at 322–325. In the words of Judge Dennis
below, the jury’s ability to consider and give effect to Penry’s
mitigating evidence was still “shackled and confined within
the scope of the three special issues.” 215 F. 3d, at 514
(dissenting opinion). Thus, because the supplemental in-
struction had no practical effect, the jury instructions at
Penry’s second sentencing were not meaningfully differ-
ent from the ones we found constitutionally inadequate in
Penry I.
Alternatively, the State urges, it is possible to understand
the supplemental instruction as informing the jury that
it could “simply answer one of the special issues ‘no’ if it
believed that mitigating circumstances made a life sen-
tence . . . appropriate . . . regardless of its initial answers
to the questions.” Brief for Respondent 16. The Texas
Court of Criminal Appeals appeared to understand the in-
struction in this sense, when it termed the supplemental in-
struction a “nullification instruction.” 903 S. W. 2d, at 765.
Even assuming the jurors could have understood the instruc-

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tion to operate in this way, the instruction was not as simple
to implement as the State contends. Rather, it made the
jury charge as a whole internally contradictory, and placed
law-abiding jurors in an impossible situation.
The jury was clearly instructed that a “yes” answer to
a special issue was appropriate only when supported “by
the evidence beyond a reasonable doubt.” App. 672. A
“no” answer was appropriate only when there was “a rea-
sonable doubt as to whether the answer to a Special Issue
should be . . . ‘Yes.’ ” Id., at 673. The verdict form listed
the three special issues and, with no mention of mitigating
circumstances, confirmed and clarified the jury’s two choices
with respect to each special issue. The jury could swear
that it had unanimously determined “beyond a reasonable
doubt that the answer to this Special Issue is ‘Yes.’ ” Id., at
676–678. Or it could swear that at least 10 jurors had “a
reasonable doubt as to the matter inquired about in this
Special Issue” and that the jury thus had “determin[ed] that
the answer to this Special Issue is ‘No.’ ” Ibid. (emphasis
added).
In the State’s view, however, the jury was also told that
it could ignore these clear guidelines and—even if there was
in fact no reasonable doubt as to the matter inquired about—
answer any special issue in the negative if the mitigating
circumstances warranted a life sentence. In other words,
the jury could change one or more truthful “yes” answers to
an untruthful “no” answer in order to avoid a death sentence
for Penry.
We generally presume that jurors follow their instruc-
tions. See, e. g., Richardson v. Marsh, 481 U. S. 200, 211
(1987). Here, however, it would have been both logically
and ethically impossible for a juror to follow both sets of
instructions. Because Penry’s mitigating evidence did not
fit within the scope of the special issues, answering those
issues in the manner prescribed on the verdict form neces-
sarily meant ignoring the command of the supplemental in-

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struction. And answering the special issues in the mode
prescribed by the supplemental instruction necessarily
meant ignoring the verdict form instructions. Indeed, ju-
rors who wanted to answer one of the special issues falsely
to give effect to the mitigating evidence would have had to
violate their oath to render a “ ‘true verdict.’ ” Tex. Code
Crim. Proc. Ann., Art. 35.22 (Vernon 1989).
The mechanism created by the supplemental instruction
thus inserted “an element of capriciousness” into the sen-
tencing decision, “making the jurors’ power to avoid the
death penalty dependent on their willingness” to elevate the
supplemental instruction over the verdict form instructions.
Roberts v. Louisiana, 428 U. S. 325, 335 (1976) (plurality
opinion). There is, at the very least, “a reasonable likeli-
hood that the jury . . . applied the challenged instruction in
a way that prevent[ed] the consideration” of Penry’s mental
retardation and childhood abuse. Boyde v. California, 494
U. S. 370, 380 (1990). The supplemental instruction there-
fore provided an inadequate vehicle for the jury to make a
reasoned moral response to Penry’s mitigating evidence.
Even though the Texas Court of Criminal Appeals focused
solely on the supplemental instruction in affirming Penry’s
sentence, the State urges us to evaluate the instruction con-
textually, with reference to the comments of the prosecutor
and defense counsel, as well as the comments of the court
during voir dire. Indeed, we have said that we will ap-
proach jury instructions in the same way a jury would—with
a “commonsense understanding of the instructions in the
light of all that has taken place at the trial.” Id., at 381.
Penry I itself illustrates this methodology, as there we evalu-
ated the likely effect on the jury of the comments of the
defense counsel and prosecutor. 492 U. S., at 325–326. As
we did there, however, we conclude that these comments
were insufficient to clarify the confusion caused by the in-
structions themselves.

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Voir dire was a month-long process, during which approxi-
mately 90 prospective jurors were interviewed. See 3 Rec-
ord (index of transcripts). Many of the venire members—
including each of the 12 jurors who was eventually em-
paneled—received a copy of an instruction largely similar
to the supplemental instruction ultimately given to the
jury. After each juror read the instruction, the judge at-
tempted to explain how it worked. See, e. g., 18 Record 966–
967 (“[I]f you thought the mitigating evidence was suffi-
cient . . . you might, even though you really felt those an-
swers [to the three special issues] should be yes, you might
answer one or more of them no . . . so [Penry] could get the
life sentence rather than the death penalty”). The prose-
cutor then attempted to explain the instruction. See, e. g.,
id., at 980 (“[E]ven though [you] believe all three of these
answers are yes, [you] don’t think the death penalty is appro-
priate for this particular person because of what has hap-
pened to him in the past . . . . [The] instruction is to give
effect to that belief and answer one or all of these issues
no”). And with most of the jurors, defense counsel also gave
a similar explanation. See, e. g., id., at 1018 (“[I]f you be-
lieve[d] [there] was a mitigating circumstance . . . you [could]
apply that mitigation to answer—going back and changing
an answer from yes to a no”).
While these comments reinforce the State’s construc-
tion of the supplemental instruction, they do not bolster
our confidence in the jurors’ ability to give effect to Penry’s
mitigating evidence in deciding his sentence. Rather, they
highlight the arbitrary way in which the supplemental in-
struction operated, and the fact that the jury was essentially
instructed to return a false answer to a special issue in order
to avoid a death sentence.
Moreover, we are skeptical that, by the time their penalty
phase deliberations began, the jurors would have remem-
bered the explanations given during voir dire, much less
taken them as a binding statement of the law. Voir dire

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began almost two full months before the penalty phase de-
liberations. In the interim, the jurors had observed the rest
of voir dire, listened to a 5-day guilt-phase trial and exten-
sive instructions, participated in 21 ⁄ 2 hours of deliberations
with respect to Penry’s guilt, and listened to another 5-day
trial on punishment. The comments of the court and coun-
sel during voir dire were surely a distant and convoluted
memory by the time the jurors began their deliberations on
Penry’s sentence.
The State also contends that the closing arguments in the
penalty phase clarified matters. Penry’s counsel attempted
to describe the jury’s task:
“If, when you thought about mental retardation and the
child abuse, you think that this guy deserves a life sen-
tence, and not a death sentence, . . . then, you get to
answer one of . . . those questions no. The Judge has
not told you which question, and you have to give that
answer, even if you decide the literally correct answer
is yes. Not the easiest instruction to follow and the law
does funny things sometimes.” App. 640.
Again, however, this explanation only reminded the jurors
that they had to answer the special issues dishonestly in
order to give effect to Penry’s mitigating evidence. For the
reasons discussed above, such a “clarification” provided no
real help. Moreover, even if we thought that the arguments
of defense counsel could be an adequate substitute for state-
ments of the law by the court, but see Boyde v. California,
supra, at 384, the prosecutor effectively neutralized defense
counsel’s argument, as did the prosecutor in Penry I, by
stressing the jury’s duty “[t]o follow your oath, the evidence
and the law.” App. 616. At best, the jury received mixed
signals.
Our opinion in Penry I provided sufficient guidance as
to how the trial court might have drafted the jury charge
for Penry’s second sentencing hearing to comply with our

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mandate. We specifically indicated that our concerns would
have been alleviated by a jury instruction defining the term
“deliberately” in the first special issue “in a way that would
clearly direct the jury to consider fully Penry’s mitigating
evidence as it bears on his personal culpability.” 492 U. S.,
at 323. The trial court surely could have drafted an in-
struction to this effect. Indeed, Penry offered two defini-
tions of “deliberately” that the trial court refused to give.
See Tr. of Oral Arg. 12, 14–15.
A clearly drafted catchall instruction on mitigating evi-
dence also might have complied with Penry I. Texas’ cur-
rent capital sentencing scheme (revised after Penry’s second
trial and sentencing) provides a helpful frame of reference.
Texas now requires the jury to decide “[w]hether, taking
into consideration all of the evidence, including the cir-
cumstances of the offense, the defendant’s character and
background, and the personal moral culpability of the de-
fendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life impris-
onment rather than a death sentence be imposed.” Tex.
Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon Supp.
2001).* Penry’s counsel, while not conceding the issue, ad-
mitted that he “would have a tough time saying that [Penry
I] was not complied with under the new Texas procedure.”
Tr. of Oral Arg. 16. At the very least, the brevity and clar-
ity of this instruction highlight the confusing nature of the
supplemental instruction actually given, and indicate that
the trial court had adequate alternatives available to it as it
drafted the instructions for Penry’s trial.
Thus, to the extent the Texas Court of Criminal Appeals
concluded that the substance of the jury instructions given
*Another recent development in Texas is the passage of a bill banning
the execution of mentally retarded persons. See Babineck, Perry:
Death-penalty measure needs analyzing, Dallas Morning News, May 31,
2001, p. 27A. As this opinion goes to press, Texas Governor Rick Perry
is still in the process of deciding whether to sign the bill. Ibid.

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at Penry’s second sentencing hearing satisfied our mandate
in Penry I, that determination was objectively unreasonable.
Cf. Shafer v. South Carolina, ante, at 40, 50 (holding on di-
rect review that the South Carolina Supreme Court “incor-
rectly limited” our holding in Simmons v. South Carolina,
512 U. S. 154 (1994), because the court had mischaracterized
“how the State’s new [capital sentencing] scheme works”).
The three special issues submitted to the jury were identical
to the ones we found constitutionally inadequate as applied
in Penry I. Although the supplemental instruction made
mention of mitigating evidence, the mechanism it purported
to create for the jurors to give effect to that evidence was
ineffective and illogical. The comments of the court and
counsel accomplished little by way of clarification. Any re-
alistic assessment of the manner in which the supplemental
instruction operated would therefore lead to the same con-
clusion we reached in Penry I: “[A] reasonable juror could
well have believed that there was no vehicle for expressing
the view that Penry did not deserve to be sentenced to death
based upon his mitigating evidence.” 492 U. S., at 326.
The judgment of the United States Court of Appeals for
the Fifth Circuit is therefore affirmed in part and reversed
in part, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Thomas, with whom The Chief Justice and
Justice Scalia join, concurring in Parts I, II, and III–A,
and dissenting in Part III–B.
Two Texas juries have now deliberated and reasoned
that Penry’s brutal rape and murder of Pamela Carpenter
warrants the death penalty under Texas law. And two opin-
ions of this Court have now overruled those decisions on
the ground that the sentencing courts should have said
more about Penry’s alleged mitigating evidence. Because
I believe the most recent sentencing court gave the jurors

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an opportunity to consider the evidence Penry presented,
I respectfully dissent.
As a habeas reviewing court, we are not called upon to
propose what we believe to be the ideal instruction on how
a jury should take into account evidence related to Penry’s
childhood and mental status. Our job is much simpler, and
it is significantly removed from writing the instruction in
the first instance. We must decide merely whether the con-
clusion of the Texas Court of Criminal Appeals—that the
sentencing court’s supplemental instruction explaining how
the jury could give effect to any mitigating value it found
in Penry’s evidence satisfied the requirements of Penry v.
Lynaugh, 492 U. S. 302 (1989) (Penry I)—was “objectively
unreasonable.” Williams v. Taylor, 529 U. S. 362, 409
(2000). See also 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V).
At Penry’s first sentencing, the court read to the jury
Texas’ three special issues for capital sentencing.1 The
court did not instruct the jury that “it could consider the
evidence offered by Penry as mitigating evidence and that
it could give mitigating effect to that evidence in imposing
sentence.” 492 U. S., at 320. The prosecutor also did not
offer any way for the jury to give mitigating effect to the
evidence, but instead simply reiterated that the jury was to
answer the three questions and follow the law. In Penry I,
this Court concluded that, “[i]n light of the prosecutor’s ar-
1 The special issues are:
“ ‘(1) whether the conduct of the defendant that caused the death of the
deceased was committed deliberately and with the reasonable expectation
that the death of the deceased or another would result;
“ ‘(2) whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to
society; and
“ ‘(3) if raised by the evidence, whether the conduct of the defendant
in killing the deceased was unreasonable in response to the provocation,
if any, by the deceased.’ ” Penry I, 492 U. S. 302, 310 (1989) (quoting Tex.
Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and Supp. 1989)).

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gument, and in the absence of appropriate jury instructions,
a reasonable juror could well have believed that there was no
vehicle for expressing the view that Penry did not deserve to
be sentenced to death based upon his mitigating evidence.”
Id., at 326.
At Penry’s second sentencing, the court read to the jury
the same three special issues. In contrast to the first sen-
tencing, however, the court instructed the jury at length that
it could consider Penry’s proffered evidence as mitigating
evidence and that it could give mitigating effect to that evi-
dence. See ante, at 789–790. The Texas Court of Criminal
Appeals concluded that this supplemental instruction “al-
low[ed] [the jury] to consider and give effect to” Penry’s prof-
fered mitigating evidence and therefore was “sufficient to
meet the constitutional requirements of [Penry I].” 2 Penry
v. State, 903 S. W. 2d 715, 765 (1995). In my view, this deci-
sion is not only objectively reasonable but also compelled by
this Court’s precedents and by common sense.
“In evaluating the instructions, [a court should] not engage
in a technical parsing of this language of the instructions,
but instead approach the instructions in the same way that
the jury would—with a ‘commonsense understanding of the
instructions in the light of all that has taken place at the
trial.’ ” Johnson v. Texas, 509 U. S. 350, 368 (1993) (quoting
Boyde v. California, 494 U. S. 370, 381 (1990)). The Texas
court’s instruction, read for common sense, or, even after a
technical parsing, tells jurors that they may consider the
2 This Court’s suggestion that the Texas court may have believed that
any supplemental instruction, regardless of its substance, would satisfy
Penry I’s requirement, see ante, at 796–797, is specious. The Texas court
explained that a “jury must be given a special instruction in order to
allow it to consider and give effect to such evidence”; it quoted the full
text of the supplemental instruction; and it concluded that “a nullification
instruction such as this one is sufficient to meet the constitutional require-
ments of [Penry I].” Penry v. State, 903 S. W. 2d 715, 765 (1995) (empha-
sis added). It is quite obvious that the court based its legal conclusion on
the content of the supplemental instruction.

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evidence Penry presented as mitigating evidence and that,
if they believe the mitigating evidence makes a death sen-
tence inappropriate, they should answer “no” to one of the
special issues. Given this straightforward reading of the in-
structions, it is objectively reasonable, if not eminently logi-
cal, to conclude that a reasonable juror would have believed
he had a “vehicle for expressing the view that Penry did not
deserve to be sentenced to death based upon his mitigating
evidence.” 492 U. S., at 326.
It is true that Penry’s proffered evidence did not fit neatly
into any of the three special issues for imposing the death
penalty under Texas law.3 But the sentencing court told
the jury in no uncertain terms precisely how to follow this
Court’s directive in Penry I. First, the sentencing court
instructed the jury that it could consider such evidence
to be mitigating evidence. See App. 675 (“[W]hen you de-
liberate on the questions posed in the special issues, you are
to consider mitigating circumstances, if any, supported by
the evidence presented in both phases of the trial, whether
presented by the state or the defendant. A mitigating cir-
cumstance may include, but is not limited to, any aspect
of the defendant’s character and record or circumstances of
the crime which you believe could make a death sentence
inappropriate in this case”). Next, the court explained to
the jury how it must give effect to the evidence. Ibid.
(“If you find that there are any mitigating circumstances
in this case, you must decide how much weight they deserve,
if any, and therefore, give effect and consideration to them
in assessing the defendant’s personal culpability at the time
you answer the special issue”). And finally, the court un-
ambiguously instructed: “If you determine, when giving
3 I am still bewildered as to why this Court finds it unconstitutional
for Texas to limit consideration of mitigating evidence to those factors
relevant to the three special issues. See Graham v. Collins, 506 U. S.
461, 478 (1993) (Thomas, J., concurring). But we need not address this
broader issue to uphold Penry’s sentence.

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effect to the mitigating evidence, if any, that a life sen-
tence, as reflected by a negative finding to the issue under
consideration, rather than a death sentence, is an appro-
priate response to the personal culpability of the defend-
ant, a negative finding should be given to one of the special
issues.” Ibid. (emphasis added). Without performing legal
acrobatics, I cannot make the instruction confusing. And I
certainly cannot do the contortions necessary to find the
Texas appellate court’s decision “objectively unreasonable.” 4
I simply do not share the Court’s confusion as to how a juror
could consider mitigating evidence, decide whether it makes
a death sentence inappropriate, and respond with a “yes” or
“no” depending on the answer.
4 I think we need not look beyond the court’s instructions in evaluating
the Texas appellate court’s decision. But even if there were any doubt as
to whether the instruction led the jurors to believe there was a vehicle
for giving mitigating effect to Penry’s evidence, the instruction was made
clear “ ‘in the light of all that ha[d] taken place at the trial.’ ” Johnson v.
Texas, 509 U. S. 350, 368 (1993). The judge and prosecutor fully explained
how to give effect to mitigating evidence during the voir dire process, and
defense counsel made the instruction clear in closing: “[i]f, when you
thought about mental retardation and the child abuse, you think that this
guy deserves a life sentence, and not a death sentence, . . . then, you get
to answer one of . . . those questions no,” App. 640. Even if the jurors
had forgotten what they had been told at voir dire, see ante, at 801–802,
an assumption that I find questionable given our presumptions about ju-
rors’ ability to remember and follow instructions, see, e. g., Weeks v. Ange-
lone, 528 U. S. 225, 234 (2000), the defense counsel’s explanation from clos-
ing arguments would have been fresh on their minds.
Despite the Court’s assertion that defense counsel told the jurors to
answer the questions dishonestly, ante, at 802, it seems to me that the
jurors reasonably could have believed that they could honestly answer
any question “no” if they found that the death sentence would be inappro-
priate given the mitigating evidence. They could follow their “ ‘oath, the
evidence and the law,’ ” ibid. (quoting the prosecutor’s statement, App.
616), by truthfully concluding that the evidence of Penry’s childhood and
mental status did not warrant the death penalty and by writing “no” next
to one of the special issues.

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Curiously, this Court concludes that the supplemental
instruction “inserted ‘an element of capriciousness’ into the
sentencing decision, ‘making the jurors’ power to avoid
the death penalty dependent on their willingness’ to elevate
the supplemental instruction over the verdict form in-
structions.” Ante, at 800 (quoting Roberts v. Louisiana,
428 U. S. 325, 335 (1976) (plurality opinion)). Any reference
to Roberts, however, is wholly misplaced. Roberts involved
a situation in which the jury was told to find the defendant
guilty of a lesser included offense, unsupported by any evi-
dence, if the jury did not want him to be sentenced to death.
Id., at 334–335. In Penry’s case there was no suggestion,
express or implied, made to the jury that it could disregard
the evidence. On the contrary, it was instructed on how to
give effect to Penry’s proffered evidence, as required by this
Court in Penry I. Tellingly, the Roberts plurality stated in
full that “[t]here is an element of capriciousness in making
the jurors’ power to avoid the death penalty dependent on
their willingness to accept this invitation to disregard the
trial judge’s instructions.” 428 U. S., at 335 (emphasis
added). In Penry’s case, the judge’s instructions included
an explanation of how to answer the three special issues and
how to give effect to the mitigating evidence.
Finally, contrary to the Court’s claim that the jury re-
ceived “mixed signals,” ante, at 802, it appears that it is
the Texas courts that have received the mixed signals. In
Jurek v. Texas, 428 U. S. 262 (1976), this Court upheld the
Texas sentencing statute at issue here against attack under
the Eighth and Fourteenth Amendments. The joint opinion
in Jurek concluded that the statute permits the jury “to
consider whatever evidence of mitigating circumstances
the defense can bring before it” and “guides and focuses
the jury’s objective consideration of the particularized
circumstances of the individual offense and the individual
offender before it can impose a sentence of death.” Id., at

532US3 Unit: $U64 [09-06-02 19:16:25] PAGES PGT: OPIN
810 PENRY v. JOHNSON
Opinion of Thomas, J.
273–274 (opinion of Stewart, Powell, and Stevens, JJ.).
Then, while purporting to distinguish, rather than to over-
rule, Jurek, this Court in Penry I determined that the same
Texas statute was constitutionally insufficient by not per-
mitting jurors to give effect to mitigating evidence. 492
U. S., at 328. See also id., at 355–356 (Scalia, J., dissenting)
(explaining how Penry I contradicts Jurek’s conclusions).
According to the Court, an instruction informing the jury
that it could give effect to the mitigating evidence was
necessary. 492 U. S., at 328. And in today’s decision, this
Court yet again has second-guessed itself and decided that
even this supplemental instruction is not constitutionally
sufficient.