Slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

     MORGAN v. ILLINOIS
certiorari to the supreme court of illinois
No. 91-5118.   Argued January 21, 1992"Decided
        June 15, 1992

The trial of a capital offense in Illinois is con-
ducted in two phases, with the same jury deter-
mining both a defendant's guilt and whether the
death penalty should be imposed.  In accordance
with state law, the trial court conducted the
voir dire to select the jury for petitioner
Morgan's capital murder trial.  The State re-
quested, pursuant to Witherspoon v. Illinois, 319
U.S. 510, that the court ask the jurors whether
they would automatically vote against the
death penalty no matter what the facts of the
case were.  However, the court refused Morgan's
request to ask if any jurors would automatical-
ly vote to impose the death penalty regardless
of the facts, stating that it had asked sub-
stantially that question.  In fact, every empan-
eled juror was asked generally whether each
could be fair and impartial, and most were asked
whether they could follow ``instructions on the
law.''  Morgan was convicted and sentenced to
death.  The State Supreme Court affirmed, rul-
ing that a trial court is not required to include
in voir dire a ``life qualifying'' or ``reverse-
Witherspoon'' question upon request.
Held:The trial court's refusal to inquire wheth-
er potential jurors would automatically impose
the death penalty upon convicting Morgan is
inconsistent with the Due Process Clause of the
Fourteenth Amendment.  Pp.6-20.
(a)Due process demands that a jury provided
to a capital defendant at the sentencing phase
must stand impartial and indifferent to the
extent commanded by the Sixth Amendment.  See,
e. g., id., at 518.  Pp.6-9.
(b)Based on this impartiality requirement, a
capital defendant may challenge for cause any
prospective juror who will automatically vote
for the death penalty.  Such a juror will fail in
good faith to consider the evidence of aggra-
vating and mitigating circumstances as the
instructions require.  Cf., e. g., Wainwright v.
Witt, 469 U.S. 412, 424.  Pp.9-10.
(c)On voir dire a trial court must, at a defen-
dant's request, inquire into the prospective
jurors' views on capital punishment.  Part of
the guaranty of a defendant's right to an im-
partial jury is an adequate voir dire to identify
unqualified jurors.  Morgan could not exercise
intelligently his challenge for cause against
prospective jurors who would unwaveringly
impose death after a finding of guilt unless he
was given the opportunity to identify such
persons by questioning them at voir dire about
their views on the death penalty.  Cf. Lockhart
v. McCree, 476 U.S. 162, 170, n. 7.  Absent that
opportunity, his right not to be tried by those
who would always impose death would be rendered
as nugatory and meaningless as the State's
right, in the absence of questioning, to strike
those who never do so.  Pp.10-14.
(d)The trial court's voir dire was insufficient
to satisfy Morgan's right to make inquiry.  The
State's own request for questioning under With-
erspoon and Witt belies its argument that the
general fairness and ``follow the law'' questions
asked by the trial court were enough to detect
those in the venire who would automatically
impose death.  Such jurors could in all truth
and candor respond affirmatively to both types
of questions, personally confident that their
dogmatic views are fair and impartial, while
leaving the specific concern unprobed.  More
importantly, the belief that death should be
imposed ipso facto upon conviction reflects
directly on an individual's inability to follow
the law.  Pp.15-17.
(e)A juror to whom mitigating evidence is
irrelevant is plainly saying that such evidence
is not worth consideration, a view which has
long been rejected by this Court and which finds
no basis in Illinois statutory or decisional law.
Here, the instruction accords with the State's
death penalty statute, which requires that the
jury be instructed to consider any relevant
aggravating and mitigating factors, lists cer-
tain relevant mitigating factors, and directs
the jury to consider whether the mitigating
factors are ``sufficient to preclude'' the death
penalty's imposition.  Since the statute plainly
indicates that a lesser sentence is available in
every case where mitigating evidence exists, a
juror who would invariably impose the death
penalty would not give the mitigating evidence
the consideration the statute contemplates.
Pp.17-20.
142 Ill.2d 410, 568 N.E. 2d 755, reversed and
remanded.




White, J., delivered the opinion of the Court, in
which Blackmun, Stevens, O'Connor, Kennedy, and
Souter, JJ., joined.  Scalia, J., filed a dissenting
opinion, in which Rehnquist, C. J., and Thomas, J.,
joined.

Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES--------
         No. 91-5118
          --------
DERRICK MORGAN, PETITIONER v. ILLINOIS
on writ of certiorari to the supreme court
              of illinois
            [June 15, 1992]

Justice White delivered the opinion of the
Court.
We decide here whether, during voir dire for a
capital offense, a state trial court may, consis-
tent with the Due Process Clause of the Four-
teenth Amendment, refuse inquiry into whether a
potential juror would automatically impose the
death penalty upon conviction of the defendant.

                   I
The trial of a capital offense in Illinois is
conducted in two phases.  The defendant must
first be convicted of first-degree murder, as
defined in Ill. Rev. Stat., ch. 38, 9-1(a) (Supp.
1990).  Illinois law uses the same jury that decided
guilt to determine whether the death penalty shall
be imposed, and upon conviction, a separate
sentencing hearing commences to determine the
existence of aggravating and mitigating factors.
9-1(d)(1).  To be eligible for the death penalty,
the jury must find unanimously, 9-1(g), and
beyond a reasonable doubt, 9-1(f), that the
defendant was at least 18 years old at the time of
the murder, and that at least 1 of 10 enumerated
aggravatingfactors exists.  9-1(b).  See, e. g., 9-1(b)(5)
(murder for hire or by contract); 9-1(b)(10) (pre-
meditated murder by preconceived plan).  If the
jury finds none of the statutory aggravating
factors to exist, the defendant is sentenced to a
term of imprisonment.  9-1(g).  ``If there is a
unanimous finding by the jury that one or more of
the factors set forth in subsection (b) 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.''  Ibid.  As part of this balance, the jury
is instructed to consider mitigating factors
existing in the case, five of which are enumerated,
but which are not exclusive.  9-1(c).  The State
may also present evidence of relevant aggravat-
ing factors beyond those enumerated by statute.
Ibid.  ``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.''
9-1(g).
Petitioner Derrick Morgan was convicted in Cook
County, Illinois, of first-degree murder and
sentenced to death.  The evidence at trial amply
proved that petitioner was hired to kill a narcot-
ics dealer apparently competing with the El Rukns,
one of Chicago's violent inner-city gangs.  For
$4,000, petitioner lured the dealer, who was a
friend, into an abandoned apartment and shot him
in the head six times.  Upon consideration of
factors in aggravation and mitigation, the jury
sentenced him to death.
Three separate venires were required to be
called before the jury was finally chosen.  In
accordance with Illinois law, the trial court,
rather than the attorneys, conducted voir dire.
People v. Gacy, 103 Ill. 2d 1, 36-37, 468 N. E. 2d 1171,
1184-1185 (1984).  The State, having elected to
pursue capital punishment, requested inquiry
permitted by Witherspoon v. Illinois, 391 U. S. 510
(1968), to determine whether any potential juror
would in all instances refuse to impose the death
penalty upon conviction of the offense.  Accord-
ingly, the trial court, over opposition from the
defense, questioned each venire whether any
member had moral or religious principles so strong
that he or she could not impose the death penalty
``regardless of the facts.''  App. 9, 78, 90.  Seven-
teen potential jurors were excused when they ex-
pressed substantial doubts about their ability to
follow Illinois law in deciding whether to impose a
sentence of death.  Id., at 9-22, 79-83, 90-94.  All
of the jurors eventually empaneled were also
questioned individually under Witherspoon, each
receiving and responding in the negative to this
question or a slight variation:  ``Would you auto-
matically vote against the death penalty no
matter what the facts of the case were?''  Id., at
33; see id., at 36, 41, 48, 55, 59, 64, 69, 76, 88, 97,
103.
After seven members of the first venire had
been questioned, including three who eventually
became jurors, petitioner's counsel requested the
trial court to ask all prospective jurors the
following question:  ``If you found Derrick Morgan
guilty, would you automatically vote to impose the
death penalty no matter what the facts are?''  Id.,
at 44.  The trial court refused this request,
stating that it had ``asked the question in a
different vein substantially in that nature.''
Ibid.
Prior to the voir dire of the three venires, the
trial court had explained in general terms the
dictates of Illinois procedure in capital trials,
as outlined above.  See id., at 24, 77-78, 90.
During voir dire, the trial court received from 9
of the 12 jurors empaneled an affirmative re-
sponse to variations of this question:  ``Would you
follow my instructions on the law, even though you
may not agree?''  Id., at 30; see id., at 38, 43, 49,
56, 60, 64, 69, 107.  However, the trial court did
not ask three of the jurors this question in any
way.  See id., at 73-77, 83-89, 94-100.  Every
juror eventually empaneled was asked generally
whether each could be fair and impartial.  Each
juror responded appropriately to at least one of
these questions, or a variation: (1) ``Do you know
of any reason why you cannot be fair and impar-
tial?''  Id., at 33; see id., at 41, 49, 64, 68, 75, 88,
99; (2) ``Do you feel you can give both sides a fair
trial?''  Id., at 70; see id., at 35, 38, 43, 49, 56,
61, 65, 77, 100, 110.  When empaneled, each member
of the jury further swore an oath to ``well and
truly try the issues joined herein and true
deliverance make between the People of the State
of Illinois and the defendant at the bar and a true
verdict render according to the law and the
evidence.''  1 Tr. 601-602; see id., at 264, 370, 429,
507, 544, 575-576.
On appeal, the Illinois Supreme Court affirmed
petitioner's conviction and death sentence,
rejecting petitioner's claim that, pursuant to
Ross v. Oklahoma, 487 U. S. 81 (1988), voir dire must
include the ``life qualifying'' or ``reverse-Withers-
poon'' question upon request.  The Illinois Supreme
Court concluded that nothing requires a trial
court to question potential jurors so as to
identify and exclude any who would vote for the
death penalty in every case after conviction for
a capital offense.  142 Ill. 2d410, 470, 568 N. E.
2d 755, 778 (1991).  That Court
also found no violation of Ross, concluding in-
stead that petitioner's jury ``was selected from a
fair cross-section of the community, each juror
swore to uphold the law regardless of his or her
personal feelings, and no juror expressed any
views that would call his or her impartiality into
question.''  Ibid.
We granted certiorari because of the consider-
able dis-agreement among state courts of last
resort on the question at issue in this case.
502 U. S. ___ (1991).  We now reverse the judgment
of the Illinois Supreme Court.

                  II
     We have emphasized previously that there is not
``any one right way for a State to set up its
capital sentencing scheme,''  Spaziano v. Florida,
468 U. S. 447, 464 (1984) (citations omitted), and
that no State is constitutionally required by the
Sixth Amendment or otherwise to provide for jury
determination of whether the death penalty shall
be imposed on a capital defendant.  Ibid.  Illinois
has chosen, however, to delegate to the jury this
task in the penalty phase of capital trials in
addition to its duty to determine guilt or inno-
cence of the underlying crime.  The issue, there-
fore, is whether petitioner is entitled to relief
under the Due Process Clause of the Fourteenth
Amendment.  We conclude that he is, and in the
course of doing so we deal with four issues:
whether a jury provided to a capital defendant at
the sentencing phase must be impartial; whether
such defendant is entitled to challenge for cause
and have removed on the ground of bias a prospec-
tive juror who will automatically vote for the
death penalty irrespective of the facts or the
trial court's instructions of law; whether on voir
dire the court must, on defendant's request,
inquire into the prospective jurors' views on
capital punishment; and whether the voir dire in
this case was constitutionally sufficient.

                   A
Duncan v. Louisiana, 391 U. S. 145 (1968), held that
the Fourteenth Amendment guaranteed a right of
jury trial in all state criminal cases which, were
they tried in a federal court, would come within
the Sixth Amendment's guarantee of trial by jury.
Prior to this decision applying the Sixth Amendme-
nt's jury trial provision to the States, we recog-
nized in Irvin v. Dowd, 366 U. S. 717 (1961), and in
Turner v. Louisiana, 379 U. S. 466 (1965), that the
Fourteenth Amendment's Due Process Clause itself
independently required the impartiality of any
jury empaneled to try a cause:
 ``Although this Court has said that the Four-
teenth Amendment does not demand the use of
 jury trials in a State's criminal procedure,
 Fay v. New York, 332 U. S. 261 [1947]; Palko v.
 Connecticut, 302 U. S. 319 [1937], every State
 has constitutionally provided trial by jury.
 See Columbia University Legislative Drafting
 Research Fund, Index Digest of State Consti-
tutions, 578-579 (1959).  In essence, the right
 to jury trial guarantees to the criminally
 accused a fair trial by a panel of impartial,
 `indifferent' jurors.  The failure to accord an
 accused a fair hearing violates even the
 minimal standards of due process.  In re Oliver,
 333 U. S. 257 [1948]; Tumey v. Ohio, 273 U. S. 510
 [1927].  `A fair trial in a fair tribunal is a
 basic requirement of due process.'  In re
 Murchison, 349 U. S. 133, 136 [1955].  In the
 ultimate analysis, only the jury can strip a
 man of his liberty or his life.  In the language
 of Lord Coke, a juror must be as `indifferent
 as he stands unsworne.'  Co. Litt. 155b.  His
 verdict must be based upon the evidence
 developed at the trial.  Cf. Thompson v. City of
 Louisville, 362 U. S. 199 [1960].  This is true,
 regardless of the heinousness of the crime
 charged, the apparent guilt of the offender or
 the station in life which he occupies.  It was
 so written into our law as early as 1807 by
 Chief Justice Marshall in 1 Burr's Trial 416
 (1807).  `The theory of the law is that a ju-
ror who has formed an opinion cannot be impar-
tial.'  Reynolds v. United States, 98 U. S. 145,
 155 [1879].''  Irvin v. Dowd, supra, at 721-722
 (footnote omitted).
In Turner v. Louisiana, we relied on this passage to
delineate ``the nature of the jury trial which the
Fourteenth Amendment commands when trial by jury
is what the State has purported to accord.''  379
U. S., at 471.  In short, as reflected in the passage
above, due process alone has long demanded that,
if a jury is to be provided the defendant, regard-
less of whether the Sixth Amendment requires it,
the jury must stand impartial and indifferent to
the extent commanded by the Sixth Amendment.  Id.,
at 472, and n. 10; cf. Groppi v. Wisconsin, 400 U. S.
505, 508-511 (1971).
Thus it is that our decisions dealing with
capital sentencing juries and presenting issues
most analogous to that which we decide here
today, e. g., Witherspoon v. Illinois, 391 U. S., at
518; Adams v. Texas, 448 U. S. 38, 40 (1980); Wain-
wright v. Witt, 469 U. S. 412, 423 (1985); Ross v.
Oklahoma, 487 U. S. 81, 85 (1988), have relied on the
strictures dictated by the Sixth and Fourteenth
Amendments to ensure the impartiality of any jury
that will undertake capital sentencing.  See also
Turner v. Mur-ray, 476 U. S. 28, 36, and n. 9 (1986)
(White, J., plurality opinion).

                   B
Witt held that ``the proper standard for deter-
mining when a prospective juror may be excused
for cause because of his or her views on capital
punishment . . . is whether the juror's views would
`prevent or substantially impair the performance
of his duties as a juror in accordance with his
instructions and his oath.'''  469 U. S., at 424
(quoting Adams v. Texas, 448 U. S. 38, 45 (1980)).
Under this standard, it is clear from Witt and
Adams, the progeny of Witherspoon, that a juror
who in no case would vote for capital punishment,
regardless of his or her instructions, is not an
impartial juror and must be removed for cause.
Thereafter, in Ross v. Oklahoma, supra, a state
trial court refused to remove for cause a juror
who declared he would vote to impose death auto-
matically if the jury found the defendant guilty.
That juror, however, was removed by the defenda-
nt's use of a peremptory challenge, and for that
reason the death sentence could be affirmed.  But
in the course of reaching this result, we an-
nounced our considered view that because the
Constitution guarantees a defendant on trial for
his life the right to an impartial jury, 487 U. S.,
at 85, the trial court's failure to remove the
juror for cause was constitutional error under
the standard enunciated in Witt.  We emphasized
that ``[h]ad [this juror] sat on the jury that
ultimately sentenced petitioner to death, and had
petitioner properly preserved his right to chal-
lenge the trial court's failure to remove [the
juror] for cause, the sentence would have to be
overturned.''  487 U. S., at 85 (citing Adams, supra).
We reiterate this view today.  A juror who will
automatically vote for the death penalty in every
case will fail in good faith to consider the evi-
dence of aggravating and mitigating circumstances
as the instructions require him to do.  Indeed,
because such a juror has already formed an
opinion on the merits, the presence or absence of
either aggravating or mitigating circumstances is
entirely irrelevant to such a juror.  Therefore,
based on the requirement of impartiality embodied
in the Due Process Clause of the Fourteenth
Amendment, a capital defendant may challenge for
cause any prospective juror who maintains such
views.  If even one such juror is empaneled and the
death sentence is imposed, the State is disenti-
tled to execute the sentence.

                   C
Illinois, in fact, raises no challenge to the
foregoing precepts, but argues instead that the
trial court, in its discretion, may refuse direct
inquiry into this matter, so long as its other
questioning purports to assure the defendant a
fair and impartial jury able to follow the law.  It
is true that ``[v]oir dire `is conducted under the
supervision of the court, and a great deal must,
of necessity, be left to its sound discretion.'''
Ristaino v. Ross, 424 U. S. 589, 594 (1976) (quoting
Connors v. United States, 158 U. S. 408, 413 (1895).
The Constitution, after all, does not dictate a
catechism for voir dire, but only that the defen-
dant be afforded an impartial jury.  Even so, part
of the guaranty of a defendant's right to an
impartial jury is an adequate voir dire to identify
unqualified jurors.  Dennis v. United States, 339
U. S. 162, 171-172 (1950); Morford v. United States,
339 U. S. 258, 259 (1950).  ``Voir dire plays a criti-
cal function in assuring the criminal defendant
that his [constitutional] right to an impartial
jury will be honored.  Without an adequate voir
dire the trial judge's responsibil-ity to remove
prospective jurors who will not be
able impartially to follow the court's instructions
and evaluate the evidence cannot be fulfilled.''
Rosales-Lopez v. United States, 451 U. S. 182, 188
(1981) (White, J., plurality opinion).  Hence, ``[t]he
exercise of [the trial court's] discretion, and the
restriction upon inquiries at the request of
counsel, [are] subject to the essential demands of
fairness.''  Aldridge v. United States, 283 U. S. 308,
310 (1931).
The adequacy of voir dire is not easily the
subject of appellate review, Rosales-Lopez, supra,
at 188, but we have not hesitated, particularly in
capital cases, to find that certain inquiries must
be made to effectuate constitutional protections.
See, e. g., Turner v. Murray, supra, at 36-37; Ham v.
South Carolina, 409 U. S. 524, 526-527 (1973).  Our
holding in Ham, for instance, was as follows:
 ``Since one of the purposes of the Due Process
 Clause of the Fourteenth Amendment is to
 insure these `essential demands of fairness,'
 e. g., Lisenba v. California, 314 U. S. 219, 236
 (1941), and since a principal purpose of the
 adoption of the Fourteenth Amendment was to
 prohibit the States from invidiously discrimi-
nating on the basis of race, Slaughter-House
 Cases, 16 Wall. 36, 81 (1873), we think that the
 Fourteenth Amendment required the judge in
 this case to interrogate the jurors upon the
 subject of racial prejudice.  South Carolina
 law permits challenges for cause, and autho-
rizes the trial judge to conduct voir dire
 examination of potential jurors.  The State
 having created this statutory framework for
 the selection of juries, the essential fair-
ness required by the Due Process Clause of
 the Fourteenth Amendment requires that under
 the facts shown by this record the petitioner
 be permitted to have the jurors interrogated
 on the issue of racial bias.''  409 U. S., at
 526-527.
We have also come to recognize that the princi-
ples first propounded in Witherspoon v. Illinois,
391 U. S. 510 (1968), the reverse of which are at
issue here, demand inquiry into whether the views
of prospective jurors on the death penalty would
disqualify them from sitting.  At its inception,
Witherspoon conferred no ``right'' on a State, but
was in reality a limitation of a State's making
unlimited challenges for cause to exclude those
jurors who ``might hesitate'' to return a verdict
imposing death.  Id., at 512-513; see Adams v. Texas,
448 U. S., at 47-49.  Upon consideration of
the jury in Witherspoon, drawn
as it was from a venire from which the State
struck any juror expressing qualms about the
death penalty, we found it ``self-evident that, in
its role as arbiter of the punishment to be im-
posed, this jury fell woefully short of that
impartiality to which the petitioner was entitled
under the Sixth and Fourteenth Amendments.''  391
U. S., at 518.  To preserve this impartiality,
Witherspoon constrained the State's exercise of
challenges for cause:
 ``[A] State may not entrust the determination
 of whether a man should live or die to a tribu-
nal organized to return a verdict of death.
 Specifically, we hold that a sentence of death
 cannot be carried out if the jury that imposed
 or recommended it was chosen by excluding
 veniremen for cause simply because they
 voiced general objections to the death penal-
ty or expressed conscientious or religious
 scruples against its infliction.  No defendant
 can constitutionally be put to death at the
 hands of a tribunal so selected.''  Id., at 520-
-523 (footnotes omitted); see also Lockhart v.
 McCree, 476 U. S. 162, 179-180 (1986).
Witherspoon limited a State's power broadly to
exclude jurors hesitant in their ability to sen-
tence a defendant to death, but nothing in that
decision questioned ``the power of a State to
execute a defendant sentenced to death by a jury
from which the only veniremen who were in fact
excluded for cause were those who made unmistak-
ably clear . . . that they would automatically vote
against the imposition of capital punishment
without regard to any evidence that might be
developed at the trial of the case before them
. . . .''  391 U. S., at 522, n. 21 (emphasis in original);
see also id., at 513-514.
In Wainwright v. Witt, 469 U. S. 412 (1985), we
revisited footnote 21 of Witherspoon, and held
affirmatively that ``the State may exclude from
capital sentencing juries that `class' of venire-
men whose views would prevent or substantially
impair the performance of their duties in accor-
dance with their instructions or their oaths.''
469 U. S., at 424, n. 5; see also Lockett v. Ohio, 438
U. S. 586, 595-596 (1978).  Indeed, in Lockhart v.
McCree we thereafter spoke in terms of ```Withers-
poon-excludables''' whose removal for cause
``serves the State's entirely proper interest in
obtaining a single jury that could impartially
decide all of the issues in [a capital] case.''  476
U. S., at 180.  From Witt, moreover, it was but a
very short step to observe as well in Lockhart:
 ``[T]he State may challenge for cause prospec-
tive jurors whose opposition to the death
 penalty is so strong that it would prevent
 them from impartially determining a capital
 defendant's guilt or innocence.  Ipso facto,
 the State must be given the opportunity to
 identify such prospective jurors by question-
ing them at voir dire about their views of the
 death penalty.''  476 U. S., at 170, n. 7.
This passage in Lockhart expanded but briefly upon
what we had already recognized in Witt:  ``As with
any other trial situation where an adversary
wishes to exclude a juror because of bias, then, it
is the adversary seeking exclusion who must
demonstrate, through questioning, that the poten-
tial juror lacks impartiality.  It is then the trial
judge's duty to determine whether the challenge is
proper.''  469 U. S., at 423 (citation omitted;
emphasis added).
       We deal here with petitioner's ability to exer-
cise intelligently his complementary challenge for
cause against those biased persons on the venire
who as jurors would unwaveringly impose death
after a finding of guilt.  Were voir dire not avail-
able to lay bare the foundation of petitioner's
challenge for cause against those prospective
jurors who would always impose death following
conviction, his right not to be tried by such
jurors would be rendered as nugatory and mean-
ingless 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 ques-
tions propounded by the trial court were suffi-
cient to satisfy petitioner's right to make inqui-
ry.  As noted above, Illinois suggests that gener-
al 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 mea-
sure superfluous were this Court convinced that
such general inquiries could detect those jurors
with views preventing or substantially impairing
their duties in accordance with their instructions
and oath.  But such jurors"whether they be unal-
terably 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 notwith-
standing.
As to general questions of fairness and impar-
tiality, 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 9.  Any
juror who would impose death regardless of the
facts and circumstances of conviction cannot
follow the dictates of law.  See Turner, 476 U. S.,
at 34-35 (White, J., 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.  A de-
fendant on trial for his life must be permitted on
voir dire 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.

                  III
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 non-
statutory, might be.  Post, at 2-7.  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 evi-
dence any weight but are also plainly saying that
mitigating evidence is not worth their consider-
ation 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. ___, ___ (1991) (slip op., at 1) (Scalia, J.,
concurring); Sochor v. Florida, ante, at ___ (Scali-
a, 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 evidence described in this Court's
cases.  See Turner v. Murray, supra, at 34-35
(White, J., 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 mitigat-
ing factors which are relevant to the imposition
of the death penalty,'' Ill. Rev. Stat., ch. 38,
9-1(c) (Supp. 1990), and lists certain mitigating
factors that the legislature must have deemed
relevant to such imposition.  Ibid.  The stat-
ute 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 in-
structed by the court and shall determine
 whether the sentence of death shall be im-
posed.  If the jury determines unanimously
 that there are no mitigating factors suffi-
cient to preclude the imposition of the death
 sentence, the court shall sentence the defen-
dant to death.''  9-1(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 factors supported by the
 evidence and all the mitigating factors sup-
ported by the evidence.
     .``If you unanimously find, from your consid-
eration 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. 122-1-
23.
Any juror who states that he or she will auto-
matically vote for the death penalty without
regard to the mitigating evidence is announcing an
intention not to follow the instructions to con-
sider the mitigating evidence and to decide if it is
sufficient to preclude imposition of the death
penalty.  Any contrary reading of this instruc-
tion, or more importantly, the controlling stat-
ute, renders the term ``sufficient'' meaningless.
The statute plainly indicates that a lesser
sentence is available in every case where miti-
gating evidence exists; thus any juror who would
invariably impose the death penalty upon convic-
tion cannot be said to have reached this decision
based on all the evidence.  While Justice Scalia
chooses to argue that such a ``merciless juror'' is
not a ``lawless'' one, post, at 11-12, 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 automati-
cally vote for the death penalty, and that ques-
tioning in the manner petitioner requests is a
direct and helpful means of protecting a defenda-
nt'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 penal-
ty without regard to the nature or extent of
mitigating evidence 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 disqual-
ified for cause, for that juror has formed an
opinion concerning the merits of the case without
basis in the evidence developed at trial.  Accord-
ingly, 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 Four-
teenth Amendment, his sen-tence cannot stand.
Turner v. Murray, supra, at 37.  Ac-cordingly, 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.
Dissent
  SUPREME COURT OF THE UNITED STATES--------
         No. 91-5118
          --------
DERRICK MORGAN, PETITIONER v. ILLINOIS
on writ of certiorari to the supreme court
              of illinois
            [June 15, 1992]

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 re-
quires that voir dire directed to this specific
 bias be provided upon the defendant's request;
and that the more general questions about  fair-
ness and ability to  follow the law that were
asked during voir dire in this case were inade-
quate.  Because these conclusions seem to me
jointly and severally wrong, I dissent.
                   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 6.  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  impar-
tial 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 guaran-
tee, 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 sen-
tencing jury be  impartial to the same extent that
the Sixth Amendment requires a jury at the guilt
phase to be impartial.  Ante, at 6-8.  I agree with
that.  See Gardner v. Florida, 430 U. S. 349, 358
(1977) (plurality) (sentencing procedures must
comply with the requirements of the Due Process
Clause).  I do not agree, however, that unconsti-
tutional  partiality, for either Sixth Amendment
or Fourteenth Amendment purposes, is established
by the fact that a juror's standard of judg-
ment"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 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 appro-
priateness 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 circumstanc-
es, 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 require-
ment 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 impartiality 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 re-
quired aggravating factors
 will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the
instructions require him to do.  Ante, at 9 (empha-
sis added); see also ante, at 18-19.  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 demon-
strate an absence of the constitutionally requi-
site impartiality, which requires that the decisi-
onmaker 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 judgment
upon a juror's inability to comply with instruc-
tions, without bothering to describe the key in-
structions.  When one considers them, it is per-
fectly 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 Defen-
dant 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.  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 re-
flected in these instructions, Illinois law permit-
ted 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 Defen-
dant 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 9; cf. Ill.
Rev. Stat., ch. 38, 9-1(c) (Supp. 1990) ( The court
. . . shall instruct the jury to consider any aggra-
vating and any mitigating factors which are
relevant . . .); he simply fails to give it the
effect the defendant desires.
      Nor can the Court's exclusion of these death-
inclined jurors be justified on the theory
that"regardless of what Illinois law purports to
permit"the Eighth Amendment prohibits a juror from
always advocating a death sentence at the weigh-
ing stage.  Our cases in this area hold, not that
the sentencer must give effect to (or even that he
must consider) the evidence offered by the defen-
dant as mitigating, but rather that he must  not
be precluded from considering it, Lockett v. Ohio,
438 U. S. 586, 604 (1978) (plurality) (emphasis
added); Bell v. Ohio, 438 U. S. 637, 642 (1978)
(plurality) (same).  See also Walton, 497 U. S., at
652 (plurality) ( `[T]he requirement of individual-
ized sentencing in capital cases is satisfied by
allowing the jury to consider all relevant miti-
gating evidence') (emphasis added) (quoting
Blystone v. Pennsylvania, 494 U. S. 299, 307 (1990));
Saffle v. Parks, 494 U. S. 484, 490 (1990) ( the
State cannot bar relevant mitigating evidence)
(emphasis added); McKoy v. North Carolina, 494 U. S.
433, 442-443 (1990) ( each juror [must] be permit-
ted to consider and give effect to mitigating
evidence) (emphasis added); Penry v. Lynaugh, 492
U. S. 302, 318 (1989) (a State may not  prevent the
sentencer from considering and giving effect to
[mitigating] evidence) (emphasis added); id., at
328 (jury must be  provided with a vehicle for
expressing its `reasoned moral response' to that
evidence in rendering its sentencing decision)
(emphasis added); Mills v. Maryland, 486 U. S. 367,
375 (1988) (State may not impose any  barrier to
the sentencer's consideration of all mitigating
evidence) (emphasis added); Turner v. Murray, 476
U. S. 28, 34 (1986) (plurality) (sentencer "must be
free to weigh relevant mitigating evidence")
(emphasis added); Roberts v. Louisiana, 431 U. S.
633, 637 (1977) (mandatory death penalty statute
is unconstitutional because it  does not allow for
consideration of particularized mitigating fac-
tors) (emphasis added); Woodson v. North Carolina,
428 U. S. 280, 303 (1976) (plurality) (same); Jurek v.
Texas, 428 U. S. 262, 271 (1976) (plurality) ( A jury
must be allowed to consider . . . all relevant
[mitigating] evidence) (emphasis added).  Similar-
ly, where the judge is the final sentencer we have
held, not that he must consider mitigating evi-
dence, but only that he may not, on legal grounds,
refuse to consider it, Hitchcock v. Dugger, 481
U. S. 393, 394, 398-399 (1987); Eddings v. Oklahoma,
455 U. S. 104, 113-114 (1982) (a sentencing judge may
not  refuse to consider, as a matter of law, any
relevant mitigating evidence) (emphasis in origi-
nal).  Woodson and Lockett meant to ensure that the
sentencing jury would function as a  link between
contemporary community values and the penal
system, Witherspoon, 391 U. S., at 519, n. 15; they
did not mean to specify what the content of those
values must be.  The  conscience of the
community, id., at 519, also includes those jurors
who are not swayed by mitigating evidence.
The Court relies upon dicta contained in our
opinion in Ross v. Oklahoma, 487 U. S. 81 (1988).
Ante, at 8-9.  In that case, the defendant chal-
lenged for cause a juror who stated during voir
dire that he would automatically vote to impose a
death sentence if the defendant were convicted.
The trial court rejected the challenge, and Ross
used a peremptory to remove the juror.  Although
we noted that the state appellate court had
assumed that such a juror would not be able to
follow the law, 487 U. S., at 84-85 (citing Ross v.
State, 717 P. 2d 117, 120 (Okla. Crim. App. 1986)), we
held that Ross was not deprived of an impartial
jury because none of the jurors who actually sat
on the petit jury was partial.  487 U. S., at 86-88.
In reaching that conclusion, however, we ex-
pressed the view that had the challenged juror
actually served,  the sentence would have to be
overturned.  Id., at 85.  The Court attaches
great weight to this dictum, which it describes as
 announc[ing] our considered view, ante, at 8-9.
This is hyperbole.  It is clear on the face of the
opinion that the dictum was based entirely on the
fact that the state court had assumed that such
a juror was unwilling to follow the law at the pen-
alty phase"a point we did not purport to examine
indepen-dently.  487 U. S., at 84-85.  The Ross
dictum thus merely reflects the quite modest
proposition that a juror who will not follow the
law is not impartial.
Because Illinois would not violate due process
by seating a juror who will not be swayed by
mitigating evidence at the weighing stage, the
Constitution does not entitle petitioner to
identify such jurors during voir dire.
                  III
Even if I agreed with the Court, however, that
jurors who will always advocate a death sentence
for capital murder are not  impartial and must be
excused for cause, I would not agree with the
further conclusion that the Constitution requires
a trial court to make specific inquiries on this
subject during voir dire.
In Mu'Min v. Virginia, 500 U. S. ___ (1991), we
surveyed our cases concerning the requirements
of voir dire and concluded that, except where
interracial capital crimes are at issue, trial
courts  retai[n] great latitude in deciding what
questions should be asked on voir dire.  Id., at
___; see also Ristaino v. Ross, 424 U. S. 589, 594
(1976).  We emphasized that our authority to
require specific inquiries on voir dire is particu-
larly narrow with respect to state-court trials,
where we may not exercise supervisory authority
and are  limited to enforcing the commands of the
United States Constitution, Mu'Min, 500 U. S., at
___.  We concluded, as a general matter, that a
defendant was entitled to specific questions only
if the failure to ask them would render his trial
 fundamentally unfair, id., at ___.  Thus, we have
held that absent some  special circumstance,
Turner, supra, at 37, a  generalized but thorough
inquiry into the impartiality of the veniremen is
a constitutionally adequate voir dire.  Ristaino,
supra, at 598.  Finally, we have long acknowledged
that, in light of the credibility determinations
involved, a trial court's finding that a particular
juror is impartial may  be overturned only for
`manifest error,' Patton v. Yount, 467 U. S. 1025,
1031 (1984) (quoting Irvin v. Dowd, 366 U. S. 717, 723
(1961)); see also Mu'Min, supra, at ___.
Were the Court today extending Witherspoon's
jury-balancing rule so as to require affirmative-
ly that a capital sentencing jury contain a mix of
views on the death penalty, that requirement
would of course constitute a  special circum-
stance necessitating specific inquiry into the
subject on voir dire.  But that is not what peti-
tioner has sought, and it is not what the Court
purports to decree.  Its theory, as I have de-
scribed, is that a juror who will always impose the
death penalty for capital murder is one who  will
fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the
instructions require him to do, ante, at 9 (empha-
sis added).  Even assuming (contrary to the reali-
ty) that that theory fits the facts of this case
(i.e., that the instructions required jurors to be
open to voting against the death penalty on the
basis of allegedly mitigating circumstances), I see
no reason why jurors who will defy this element of
the instructions, like jurors who will defy other
elements of the instructions, see e.g., n. 1, supra,
cannot be identified by more general questions
concerning fairness and willingness to follow the
law.  In the present case, the trial court on voir
dire specifically asked nine of the jurors who
ultimately served whether they would follow the
court's instructions even if they disagreed with
them, and all nine answered affirmatively.  More-
over, all the veniremen were informed of the
nature of the case and were instructed that, if
selected, they would be required to follow the
court's instructions; subsequently, all twelve
jurors responded negatively to a specific ques-
tion whether there was any reason why they did
not think they could be fair and impartial in this
case.  These questions, which were part of an
extensive voir dire, succeeded in identifying one
juror who would be unable to follow the court's
instructions at the penalty phase: The juror
admitted that, because of the anger he felt over
the murder of his friend's parents, his sentiments
in favor of the death penalty were so strong that
he did not believe he could be fair to petitioner
at the sentencing hearing.  Taking appropriate
account of the opportunity for the trial court to
observe and evaluate the demeanor of the venire-
men, I see no basis for concluding that its finding
that the 12 jurors were impartial was manifestly
erroneous.
The Court provides two reasons why a specific
question must be asked, but neither passes the
most gullible scrutiny.  First, the Court states
that general questions would be insufficient
because  such jurors could in all truth and candor
respond affirmatively, personally confident that
such dogmatic views are fair and impartial . . . .
Ante, at 15.  In other words, jurors who would
always impose the death penalty would be violat-
ing the instructions without realizing that that is
what they are doing.  It seems to me quite obvious
that solution of this problem does not require a
specific question of each juror, but can be
achieved by simply changing the instructions so
that these well-intentioned jurors will under-
stand that an aggravators-always-outweigh-
mitigators view is prohibited.  The record does
not reflect that petitioner made any objection to
the clarity of the instructions in this regard.
Second, the Court asserts that the adequacy of
general voir dire questions is belied by  [t]he
State's own request for questioning under Wither-
spoon and Witt.  Ante, at 14-15.  Without such
questioning, we are told,  Witherspoon and its
succeeding cases would be in large measure
superfluous, ante, at 15.  But Witherspoon did not,
as this reasoning assumes, give the State a right
to exclude jurors ( it is clear beyond peradven-
ture that Witherspoon is not a ground for chal-
lenging any prospective juror, Adams, 448 U. S.,
at 47-48) and it is therefore quite impossible
that anything we say on that subject today could
render the holding of Witherspoon  superfluous.
What the Court describes, ante, at 13, as a  very
short step from Witherspoon, Adams, and Witt, is
in fact a great leap over an unbridgeable chasm of
logic.  Witherspoon and succeeding cases held that
the State was not constitutionally prevented from
excluding jurors who would on no facts impose
death; from which the Court today concludes that
a State is constitutionally compelled to exclude
jurors who would, on the facts establishing the
particular aggravated murder, invariably impose
death.  The Court's argument that because the
Constitution requires one it must require the
other obviously rests on a false premise.  In
any event, the mere fact that Illinois sees fit to
request one or another question on voir dire in
order to discover one-result-only jurors cannot,
as a logical matter, establish that more general
questioning is constitutionally inadequate to do
the job.
For similar reasons, I reject petitioner's
argument that it is  fundamentally unfair to
allow Illinois to make specific inquiries concern-
ing those jurors who will always vote against the
death penalty but to preclude the defendant from
discovering (and excluding) those jurors who will
always vote in favor of death.  Brief for Petition-
er 14 (citing Wardius v. Oregon, 412 U. S. 470 (1973)).
Even if it were unfair, of course, the State should
be given the option, which today's opinion does not
provide, of abandoning Witherspoon-qualification.
(Where the death-penalty statute does not con-
tain a unanimity requirement, I am confident
prosecutors would prefer that to the wholesale
elimination of jurors favoring the death penalty
that will be the consequence of today's decision.)
But in fact there is no unfairness in the asymme-
try.  By reason of Illinois' death-penalty unanimi-
ty requirement, Ill. Rev. Stat., ch. 38, 9-1(g)
(Supp. 1990), the practical consequences of allow-
ing the two types of jurors to serve are vastly
different: A single death-penalty opponent can
block that punishment, but 11 unwavering advo-
cates cannot impose it.  And more fundamentally,
the asymmetry is not unfair because, under
Illinois law as reflected in the statute and
instructions in this case, the Witherspoon-disqua-
lified juror is a lawless juror, whereas the juror
to be disqualified under the Court's new rule is
not.  In the first stage of Illinois' two-part
sentencing hearing, jurors must determine, on the
facts, specified aggravating factors, and at the
second, weighing stage, they must impose the death
penalty for murder with particular aggravators if
they find  no mitigating factors sufficient to
preclude [its] imposition.  But whereas the
finding of aggravation is mandatory, the finding of
mitigation is optional; what constitutes mitiga-
tion is not defined, and is left up to the judgment
of each juror.  Given that there will always be
aggravators to be considered at the weighing
stage, the juror who says he will never vote for
the death penalty, no matter what the facts, is
saying that he will not apply the law (the classic
case of partial-ity)"since the facts may show no
mitigation.  But the juror who says that he will
always vote for the death penalty is not promising
to be lawless, since there is no case in which he is
by law compelled to find a mitigating fact  suffi-
ciently mitigating.  The people of Illinois have
decided, in other words, that murder with certain
aggravators will be punished by death, unless the
jury chooses to extend mercy.  That scheme
complies with our (ever-expanding) death-penalty
jurisprudence as it existed yesterday.  The Court
has, in effect, now added the new rule that no
merciless jurors can sit.
             *     *     *
Sixteen years ago, this Court decreed"by a
sheer act of will, with no pretense of foundation
in constitutional text or American tradition"that
the People (as in We, the People) cannot decree the
death penalty, absolutely and categorically, for
any criminal act, even (presumably) genocide; the
jury must always be given the option of extending
mercy.  Woodson, 428 U. S., at 303-305.  Today,
obscured within the fog of confusion that is our
annually improvised Eighth-Amendment,  death-is-
different jurisprudence, the Court strikes a
further blow against the People in its campaign
against the death penalty.  Not only must mercy be
allowed, but now only the merciful may be permit-
ted to sit in judgment.  Those who agree with the
author of Exodus, or with Immanuel Kant, must
be banished from American juries"not because the
People have so decreed, but because such jurors
do not share the strong penological preferences
of this Court.  In my view, that not only is not
required by the Constitution of the United
States; it grossly offends it.


