specially concurring in part and dissenting in part:
I. THE SANDSTROM ISSUE
Although I endorse the majority’s conclusion that the instruction on the issue of intent unconstitutionally shifted the burden of proof, I cannot agree that this error was harmless.
The Supreme Court has declined, thus far, to resolve the question of whether the shifting of a presumption so integral to the concept of a fair trial can ever result in harmless error. Francis v. Franklin, — U.S. -, -, 105 S.Ct. 1965, 1977, 85 L.Ed.2d 344 (1985); Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). But the Court has affirmed the pre-existing federal requirement that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). This Court embraced a similar standard in Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983), where it held that error in the case of a Sandstrom violation can only be harmless if it applied to an element of the crime which was not at issue at the trial, or if the evidence was overwhelming as to the defendant’s guilt. 683 F.2d at 1342. See also, Patterson v. Austin, 728 F.2d 1389 (11th Cir.1984); Franklin v. Francis, 720 F.2d 1206 (11th Cir.1983), cert. granted, — U.S.-, 104 S.Ct. 2677, 81 L.Ed.2d 873 (1984).
I cannot conclude, under the circumstances of this case, that the error perpetrated by the court’s instruction on the issue of intent was harmless beyond a reasonable doubt.1 It is uncontested that petitioner’s intent was at issue at the trial. Moreover, it cannot be said that evidence of petitioner’s guilt on the issue of intent was “so overwhelming that the Sandstrom error cannot have contributed to the jury’s decision to convict.” Lamb v. Jernigan, supra, 683 F.2d at 1342. The vast majority of the evidence against Tucker was entirely circumstantial: he had been seen driving the victim’s car after the day of the crime; his fingerprints were identified on one of the charge cards taken from her wallet. This circumstantial showing does not constitute “overwhelming evidence” that Tucker committed the act in question, much less that he committed it with the requisite intent. And the two statements made by *1515Tucker to police concerning the crime were wholly contradictory on the question of who committed the murder. It seems highly unlikely that the jury found this scant and conflicting body of evidence so compelling that it could not have been influenced by the court’s instruction. I am therefore unable to conclude that an instruction which shifted the burden of proof on the crucial and disputed element of intent was harmless beyond a reasonable doubt.
II. THE PROSECUTORIAL ARGUMENT
The majority held in Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985), that a petitioner who seeks to challenge a prosecutorial argument must demonstrate a “reasonable probability” that improprieties contained in the argument affected the outcome of the proceeding. 762 F.2d 1383; Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While this “prejudice” requirement has become the law of the Circuit, it must nonetheless be applied in a way which is consistent with the other constraints imposed by the Constitution on capital sentencing proceedings. Because its application by the majority undermines the long-standing requirement of individuation in capital sentencing, I dissent.
A. Prosecutorial Expertise
The majority found improper the prosecutor’s discussion of the infrequency with which attorneys in his office seek the death penalty, but the majority refused to find this discussion prejudicial because the subsequent comments of the prosecutor and defense counsel placed responsibility for the decision on the jury. I cannot be so sanguine about the ameliorative effect of later references to the jury’s responsibility. As I have stressed on other occasions, see Brooks v. Kemp, supra, 762 F.2d at 1424 (Johnson, J., dissenting); Wm. Boyd Tucker v. Kemp, 762 F.2d 1480 (1985) (Johnson, J., concurring specially), this type of argument places the full weight of the prosecutor’s office behind the suggestion that an appropriate sentencing decision has already been made by knowledgeable authorities. Formal reminders that the jury retains discretion to make the final decision cannot prevent such arguments from impairing the fundamental fairness of the proceeding.
B. Sexual Offenses
The majority also concludes, after some deliberation, that the petitioner was not prejudiced by the prosecutor’s statements that Tucker had raped the victim and compelled her to perform oral sodomy before her murder. With this conclusion, too, I must disagree. When the body of the victim was found, it was sufficiently decomposed that it was impossible to tell if sexual contact of any type had taken place. The evidence relied upon by the prosecution consisted solely of the fact that the body had been found unclothed, that a Caucasian pubic hair had been found on or near Tucker’s clothes, and that the victim was reported, in one confession, to have been on her knees at some time before she was killed. I have difficulty agreeing with the majority that these facts, in and of themselves, give rise to an inference that the victim was raped. None of Tucker’s conflicting confessions suggested that a sexual assault of any type had taken place; and his explanation that he had removed the victim’s clothes to destroy possible fingerprints was not unreasonable. Yet even if this evidence were to give rise to an inference of rape, it most clearly does not support an inference of oral sodomy; and I cannot agree with the majority that the prosecutor’s statement concerning oral sodomy was not prejudicial.
The majority suggests that this statement did not prejudice the petitioner because, given the “reasonable reference to rape,” the “issue of sexual assault was already before the jury.” 762 F.2d at 1509. This application of the prejudice requirement, however, gives tacit approval to a lack of individuation in capital sentencing that the Constitution has been read to proscribe. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Because a petitioner may have committed a rape does not mean he should be sentenced under allegations that he also compelled oral sodomy. The latter charge, which is not based on the record, evokes a range of images and emotions in members of the jury which have no relation to the petitioner. Because it deprives him of individualized consideration, by making an unsupported charge which engenders strong emotional response, this comment cannot help but undermine the reliability of the proceeding.
*1516C. Parole and Jury Responsibility for Future Violence
The majority makes a similar error in considering the prosecutor’s comments concerning future parole for petitioner and the jury’s responsibility for his future violence. The majority states that these comments were improper because they were based on speculation rather than fact, and required the jury to assume responsibility for the future conduct of corrections personnel. But it refuses to find these statements prejudicial, as they “probably added little to the future dangerousness arguments which were properly considered by the jury.” 762 F.2d at 1509. The “little” to which the majority refers is, however, the difference between a presentation which excites only those emotions relevant to the acts or characteristics of the petitioner, and a presentation which appeals to an entire spectrum of emotions and fears which relate not to the petitioner but to the release of violent criminals in general. See Brooks v. Kemp, supra, 762 F.2d at 1424 (Johnson, J., dissenting). A jury distracted by fears of a speculative release in which it would have no part, and a speculative course of violence which might never occur, cannot give the petitioner before them the careful, individualized consideration the Constitution requires.
I cannot approve an argument which so clearly transgresses the constitutional bounds on capital sentencing. Nor can I join an opinion which uses the newly-established prejudice requirement to vitiate the long-standing constitutional mandate of individuation in sentencing.
. Engle v. Koehler, 707 F.2d 241, 246 (6th Cir.1983), aff’d by an equally divided court,-U.S. -, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984), which was relied upon by the majority in Davis v. Zant, provides additional support for this conclusion. Noting that the prejudicial effect of a Sandstrom violation is largely a function of the defense asserted at trial, 707 F.2d at 246, the Sixth Circuit held that where a defendant asserts a lack of mens rea "a Sandstrom instruction may be extremely prejudicial, even if overall proof of intent or malice is substantial." Id. While this opinion provided little support for the petitioner in Davis, who had raised a non-participation defense, it suggests the inapplicability of the harmless error rule to the instant case, where the defense raised was lack of mens rea.