concurring:
I join Judge Reavley’s thoughtful opinion, and append these remarks merely to further explore, from what may be my slightly different perspective, some of the possible ramifications of Jurek and its relationship to other Supreme Court decisions of the kind called attention to by Judge Reavley.
Undoubtedly, as Judge Reavley so cogently explains, there is a tension between the two major themes of the Supreme Court’s recent capital sentencing jurisprudence, and it is certainly not inconceivable that the ultimate resolution of that tension may undermine Jurek. However, I do not understand us to suggest, and I do not believe, that such a result is either inevitable or desirable.
That the Court knew what it was doing in Jurek must be assumed not only out of proper respect for the Court, but also because of the concurring opinion therein of Justice White (joined by the Chief Justice and Justice Rehnquist), as well as Justice White’s dissent (joined by the Chief Justice and Justices Blackmun and Rehnquist) in Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 *927(1976), and Justice Rehnquist’s dissent in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), each decided the same day as Jurek. Justice White’s Jurek concurrence observed that the Texas “statute does not extend to juries discretionary power to dispense mercy.” 96 S.Ct. at 2959. His dissent in Roberts points out that under the Texas statute upheld in Jurek, “capital punishment is required if the defendant is found guilty of the crime charged and the jury answers two additional questions in the affirmative. Once that occurs, no discretion is left to the jury; death is mandatory.” 96 S.Ct. at 3018. And, in Woodson, Justice Rehnquist’s dissent points out that under the Texas system upheld in Jurek, “[t]he jury is required to answer three statutory questions. If the questions are unanimously answered in the affirmative, the death penalty must be imposed.” 96 S.Ct. at 2996 (emphasis in original). It is true, of course, that Justice Stewart’s plurality opinion in Jurek relied heavily on the breadth of circumstances which the Texas Court of Criminal Appeals in Jurek itself (as well as in another case) had indicated could properly be considered in answering the sentencing special interrogatories, particularly the second. 96 S.Ct. 2950 at 2956-57. However, it is to be noted in this connection that the Texas courts, both generally and in Penry’s case, have kept the promise of Jurek, and have not to any extent narrowed the circumstances appropriate for consideration under the sentencing special issues as indicated in Jurek.
Moreover, since Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)—the decision most in tension with Jurek—the Supreme Court has cited Jurek favorably in numerous cases. See Sumner v. Shuman, — U.S. -, 107 S.Ct. 2716, 2721, 97 L.Ed.2d 56 (1987); Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1770, 90 L.Ed.2d 137 (1986); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986); Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 876, 879, 79 L.Ed.2d 29 (1984) (declining to “effectively overrule Jurek’’); California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 3453-54, 77 L.Ed.2d 1171 (1983); Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 3396, 77 L.Ed.2d 1090 (1983); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2742 n. 13, 77 L.Ed.2d 235 (1983). See also Tison v. Arizona, — U.S. -, 107 S.Ct. 1676, 1687, 95 L.Ed.2d 127 (1987) (citing Selvage v. State, 680 S.W.2d 17, 22 (Tex.Crim.App.1984)). As reflected below, Jurek was likewise frequently cited with approval prior to Eddings. See also, e.g., Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 2524 n. 1, 65 L.Ed.2d 581 (1980).
The scope of those more recent Supreme Court decisions which are in tension with Jurek is not entirely clear respecting what considerations the sentencer must be allowed to take into account in determining the appropriateness of a death sentence. In Penry’s case, not only was the jury plainly allowed to hear and instructed to consider all evidence proffered, but also the special issues submitted adequately allowed the jurors to give effect to this evidence insofar as they might deem it relevant either to the moral culpability of Pen-ry’s own conduct and state of mind on the particular occasion in question or to his possible rehabilitation or future dangerousness to society. What the special issues did not afford the jury a vehicle for giving effect to was Penry’s implicit plea that, although his own individual actions and state of mind on the occasion in question were morally culpable and although his character generally was such that he was not a good prospect for rehabilitation and would pose a continuing danger to society, nevertheless he was not to blame either for his own thus unsatisfactory character, or for his own immoral conduct and state of mind on the occasion in question, because these were products of his tragically disadvantaged youth. It is not entirely clear that the Supreme Court’s decisions respecting individualized consideration of the offense and offender have gone so far as to require that effective consideration always be given by the sentencer to such a plea.
The initial individualized consideration cases, Woodson and Roberts (Stanislaus), were decided the same day as Jurek. They *928each involved mandatory capital sentences for certain general categories of homicide. In Roberts, the Court decried the Louisiana statute’s “lack of focus on the circumstances of the particular offense and the character and propensities of the offender.” 96 S.Ct. at 8006. In Woodson, the Court noted that the North Carolina statute, which embraced the felony murder doctrine, “accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense.” 96 S.Ct. at 2991 (emphasis added). Neither criticism is substantially applicable to Jurek. In Roberts (Harry) v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977), decided the following year, another mandatory capital sentencing scheme was struck down. The Court observed: “Circumstances such as the youth of the offender, the absence of any prior conviction, the influence of drugs, alcohol, or extreme emotional disturbance, and even the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct are all examples of mitigating facts which might attend the killing of a peace officer” but which the Louisiana statute did not take into account. Id. at 1995 (emphasis added). Again, Jurek is not subject to this criticism. These statutes all had in common the prohibition of any considerations other than guilt of the particular offense.
The Court first went beyond that category of case the next year in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which involved a death sentence imposed on a twenty-one-year-old woman who was an accomplice to the murder but did not actually kill the victim. There was evidence that “ ‘her prognosis for rehabilitation’ ... was favorable,” and she had no major offenses on her record. Id. at 2959. The sentencing statute was held invalid because it “did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime.” Id. at 2961. Particular reliance was placed on Woodson, and Jurek was cited with apparent approval. Id. at 2963. Justice Blaek-mun limited his concurrence to cases where the death sentence was imposed on “a defendant who only aided and abetted a murder, without permiting any consideration by the sentencing authority of the extent of her involvement, or the degree of her mens rea, in the commission of the homicide.” Id. at 2969. Justice Marshall, in his concurrence, pointed out that the defendant “was sentenced to death for a killing that she did not actually commit or intend to commit” and that the Ohio statute “precluded any effective consideration of her degree of involvement in the crime, her age, or her prospects of rehabilitation.” Id. at 2972.
It is apparent that none of the considerations which Lockett held must be taken into account in determining whether a sentence of death should be imposed, were precluded from being given effective consideration by the jury in Penry’s case. Each of these considerations is relevant to either the first or second sentencing inquiry under the Texas scheme as announced in Jurek and applied in this case.
It is also to be noted that Justice White concurred in the result in Lockett on substantive grounds, namely, that the Eighth Amendment prohibited capital punishment for one who did not intend the death of the victim. Id. at 2983. This view was largely vindicated in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), where the Court held that the death sentence could not constitutionally be imposed on one who did not kill or attempt to kill or have any intention of participating in or facilitating a killing. Id. at 3377. Enmund placed principal reliance on Lockett and Woodson. Id. The Enmund Court noted that “Enmund’s own conduct” must be the basis for punishment and “[t]he focus must be on his culpability.” Id. (emphasis in original). Consideration of the deterrence justification for punishment made defendant’s state of mind particularly relevant. Id. The Court observed that “[a]s for retribution as a justification for executing Enmund, we think this very much depends on the degree of Enmund’s culpability — what Enmund’s intentions, ex*929pectations, and actions were,” and that “Enmund’s criminal culpability must be limited to participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt.” Id. at 3378. In these passages, the Court is obviously measuring personal responsibility and moral guilt by the circumstances of the particular offense and the defendant’s participation and state of mind with reference to it. These considerations appear to be adequately taken into account in the Texas sentencing scheme. The Enmund analysis was reconfirmed in Tison, 107 S.Ct. at 1683, 1687.
Likewise, in other cases where the Supreme Court has struck down a capital sentencing scheme because of its mandatory nature or its preclusion of consideration of mitigating factors, a significant and perhaps crucial aspect of the decision has been that matters relating to the accused’s own participation in the crime, or his own state of mind in respect to it, or his potential for rehabilitation or lack of future dangerousness, have been deemed legally irrelevant. Thus, in Skipper, the Court held that it was constitutional error to exclude evidence relevant to the accused’s “probable future conduct if sentenced to life in prison,” and that “evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.” 106 S.Ct. at 1671. This was stated to be merely the converse of Jurek. Id. See also Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 382-83, 78 L.Ed.2d 187 (1983) (relevance of future dangerousness). In Hitchcock v. Dugger, — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), a death sentence was set aside because the trial court deemed that it was legally barred from taking any account of certain considerations which the defendant offered in mitigation including, as the court twice mentioned, “his potential for rehabilitation” or “his capacity for rehabilitation.” Id. at 1824. The Court noted that “the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid,” and further observed, quoting Skipper, that a capital defendant must be “ ‘permitted to present any and all relevant mitigating evidence that is available.’ ” Id. (emphasis added). Most recently, in Sumner, the Court struck down Nevada’s mandatory death sentence for those committing first degree murder while under a sentence to life imprisonment without possibility of parole. The Court noted that its prior decisions, including Enmund and Tison, established that “the level of criminal responsibility of a person convicted of murder may vary according to the extent of that individual’s participation in the crime,” and that this consideration was not adequately reflected in the Nevada statute. 107 S.Ct. at 1724. Sumner also noted as a possible mitigating factor excluded by the Nevada law “ ‘even the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct.’ ” 107 S.Ct. at 2725 (quoting Roberts (Harry)) (emphasis added). The Sumner Court went on to observe that in the case before it a possible mitigating factor which the Nevada law ignored was the defendant’s “behavior during his 15 years of incarceration, including whether the inmate murder was an isolated incident of violent behavior or merely the most recent in a long line of such incidents.” Id. at 2726. These factors are clearly consistent with Jurek, which, as previously noted, Sumner cites with approval.
Of all the cases in this area, Eddings is most in tension with Jurek. Eddings is certainly susceptible of the reading that considerations respecting a defendant’s disadvantaged background, of the sort that Penry sought to have the jury give effect to at his sentencing hearing, may not be deemed legally irrelevant. Eddings observed that the sixteen-year-old defendant “had been deprived of the care, concern and parental attention that children deserve,” and that “the background and mental and emotional development of a youthful defendant [must] be duly considered in sentencing.” 102 S.Ct. at 877. However, it is not entirely clear that as broad a reading as this language considered in isolation suggests must be given to Eddings. There the sentencing authority would, as a matter of law, consider as a mitigating *930factor nothing except Eddings’ chronological youth. Id. at 873-74. The Court’s opinion further points out that there was testimony from a sociologist “that Eddings was treatable,” and from a psychiatrist “that, if treated, Eddings would no longer pose a threat to society.” Id. at 873. It likewise noted a psychologist’s testimony that Eddings had a sociopathic or antisocial personality, but that “approximately 30% of youths suffering from such a disorder grew out of it as they aged.” Id. Apparently the Oklahoma sentencing authorities also deemed all this evidence legally irrelevant. Certainly the potential for rehabilitation, and the fact that a person can be treated so that he will not be a danger to society, or is youthful so may grow out of his difficulties, may be effectively considered under the Texas scheme. That the Court mentioned this evidence in some detail in Eddings suggests that it thought it significant. Justice Powell wrote the majority opinion in Eddings and Chief Justice Burger and Justices White, Blackmun, and Rehnquist dissented. In Skipper, on the other hand, Justice White, who had dissented in Eddings, wrote the majority opinion and Justice Powell, with whom the Chief Justice and Justice Rehnquist joined, dissented on the point relevant here (although they concurred in the result on. other grounds). This would appear to indicate that the Court has not fully crystallized its view on this subject.
The foregoing review of the Court’s leading opinions in the area suggests that not every aspect of whatever is offered by the defense as being in mitigation must constitutionally be given effective consideration by the sentencer. As observed, the Court has referred to “relevant” mitigating evidence, “reasonably” believed moral justification, and the “relevant” facets of the character and record of the defendant. In California v. Brown, — U.S. -, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), the Court refused to reverse on account of an instruction that the jury could not be swayed by “sympathy” or “mere sympathy.” The Brown Court did not regard such an instruction as inconsistent with the rule that “the capital defendant generally must be allowed to introduce any relevant mitigating evidence regarding his ‘ “character or record and any of the circumstances of the offense.” ’ ” Id. at 839 (quoting Eddings quoting Lockett; emphasis added).
Note must also be taken of the other principal recent theme in the Supreme Court’s capital punishment jurisprudence, namely, that “sentencers may not be given unbridled discretion in determining the fate of those charged with capital offenses.” Brown, 107 S.Ct. at 839. This, of course, stems from the concurring opinions of Justices Douglas, Stewart, and White in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 2727, 2760, 2763, 33 L.Ed.2d 346 (1972). In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the Court struck down a threshold aggravating circumstance as being overly vague. The plurality noted that this violated its warning in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (1976), that such vague standards would “fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” Godfrey, 100 S.Ct. at 1765 (quoting Gregg; emphasis added) (Jurek is also cited approvingly, 100 S.Ct. at 1764). In Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), where the Court held that jury sentencing was not required for capital cases, it explicated this theme as follows:
“If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.” Id. at 3162.
The Court further observed that “the discretion of the sentencing authority, whether judge or jury, must be limited and reviewable.” Id. at 3163. Moreover, “[t]here must be a valid penological reason for choosing from among the many criminal defendants the few who are sentenced to death.” Id. at 3162 n. 7.
*931However, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the crucial plurality opinion by Justice Stewart, joined by Justices Powell and Stevens, had observed that “the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.” Id. at 2939 (emphasis added). In this connection, in Zant the Court noted that it did not require jury instructions providing “specific standards to guide the jury’s consideration of aggravating and mitigating circumstances.” 103 S.Ct. at 2742. And, as the concurring opinion of Justice Stevens, joined by Justice Powell, in Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 3431 n. 2, 77 L.Ed.2d 1134 (1983), recognized, neither Lockett nor Eddings established that any particular weight need be given by the sentencer to the mitigating circumstances which those cases held could not be excluded as a matter of law from any consideration.
It would appear, especially given this lack of requirement for instructional guidance or for any particular weight to be given allegedly mitigating circumstances, that the broader the range of such mitigating circumstances and the more attenuated their relationship to valid penological considerations, the more hindered is the system in the performance of its function of rationally distinguishing between those defendants for whom death is appropriate and those for whom it is not. Similarly, in such circumstances the discretion of the sentencing authority becomes more unlimited and unreviewable. It is difficult to understand how a system which requires that the sentencer be given unlimited discretion to assign whatever weight it desires to whatever it might consider to be mitigating can be fairly described as tending “to ensure that the death penalty will be imposed in a consistent, rational manner,” id. at 3430 (concurring opinion of Stevens, J.), or to minimize “sentencing decision patterns ... [that are] arbitrary and capricious.” Godfrey, 100 S.Ct. at 1765 (quoting Gregg; emphasis added).
The foregoing suggests that the more closely and objectively related an alleged mitigating circumstance is to a valid peno-logical consideration, the stronger the argument for requiring that the sentencer be allowed to take that circumstance into account. The kind of factor which Penry asserts that the jury was not afforded an appropriate vehicle to give effect to is arguably quite remote from the recognized purposes of punishment and justifications for the death sentence. While the retributive justification for the death penalty depends to some extent on the degree of the defendant’s culpability, as well as on the nature and results of the offense, the Supreme Court’s decisions indicate that culpability in this connection refers to the defendant’s culpability as directly related to his participation in and state of mind respecting the particular offense in question. See Enmund, 102 S.Ct. at 3378; Tison, — U.S. -, 107 S.Ct. 1676, 1683, 1687, 95 L.Ed.2d 127. See also Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1983). Such a determination, as well as that respecting rehabilitation potential, can be made with relative objectivity based on the evidence in a particular case. When the sentencer must go beyond that, as Pen-ry would have it do, and must determine not only the accused’s rehabilitation potential and his culpability on the occasion in question but also whether, in essence, he was at fault for being at fault, the decision-making process becomes vastly more subjective and necessarily involves speculation about wholly immeasurable abstractions such as free will and personal responsibility, as to which there is little of either common understanding or common agreement. As such, capital sentencing would also inevitably become far more unpredictable and unreviewable. Would it then, perhaps a few years later, again be subject to challenge on that ground? *
*932It is also questionable whether unlimited consideration of assertedly mitigating factors can be appropriately defended as a one-way street leading away from capital punishment. Such an argument is not responsive to the asserted desirability of minimizing arbitrariness and indiscriminacy. Moreover, it is doubtful that the street will really be one-way. The Court has held that a state may prove the nonexistence of potential mitigating circumstances, see Barclay, 103 S.Ct. 3418 at 3428, and where the range of potentially mitigating factors is almost unlimited what one sentencer may regard as mitigating another may view as aggravating.
Finally, even if, as now appears to be the case, the principles of the Furman plurality do not require a state to put any limits on the factors which the sentencer may determine to be mitigating, nevertheless this does not mean that a state has no voice in choosing the “substantive factors relevant to the penalty determination.” Ramos, 103 S.Ct. at 3453. See also id. at 3452. While it is plain that whatever discretion a state may have in this respect does not extend to excluding from all consideration the defendant’s potential for rehabilitation, his lack of dangerousness, or the nature of his participation in or state of mind respecting the crime charged, nevertheless, it may be that a state has room to place some other limits on the sentencer’s discretion, at least if those limits subserve valid penological purposes. Surely Fur-man teaches us that a valid penological purpose is fostering predictability, consistency, objectivity, rationality, and reviewa-bility in capital sentencing. That purpose would seem to be fostered by not affording the jurors a vehicle by which to give decisive effect to the sort of considerations advanced by Penry, insofar only as the jurors may deem those considerations wholly irrelevant to either of the two Texas capital sentencing special issues.
Accordingly, while there is indeed a tension between Jurek and expressions in other recent decisions of the Court, it is by no means clear that Jurek has been or should be fatally undermined.
In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), the Court held it was not ««constitutional to grant the jury "absolute discretion” to impose or not to impose the death sentence on one committing murder in the first degree. Id. at 1456. Interestingly, in *932the companion case of Crampton v. Ohio, the Court noted, but suggested no error in, the instruction to the jury that it " ‘must not be influenced by any consideration of sympathy.’ ” Id. at 1461. By the next year, during which Justices Harlan and Black departed the Court, McGautha's "absolute discretion” holding was substantially rendered a dead letter by Furman, as was confirmed four years later in Gregg, 96 S.Ct. at 2936 n. 47. This may reflect the rapidity, or perhaps the ambiguity, of "the evolving” of "standards of decency” referenced in Chief Justice Warren’s opinion in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958), which had likewise proclaimed the constitutionality of capital punishment. Id. at 597-98. Now, a few years still later, has McGautha returned, though in the altered form of a mandatory requirement? To some extent, the answer, in light of the Court’s post-Gregg opinions, must be "yes,” but just to what extent is not fully clear.
Answering the latter question is particularly difficult in light of the fact that the Eighth Amendment's proscription of “cruel and unusual punishments appears, from its text, context, and history, to be substantive, at least apart, from whatever procedural connotations “unusual" may have. The latter may be consistent with the procedural approach of Gregg and of Justices Douglas, Stewart, and White in Fur-man. But the then unprecedented procedural reading of the Eighth Amendment given by Lockett thrusts entirely in the opposite direction. That the Court has since embraced such a Lockett-type procedural requirement as a component of its current Eighth Amendment jurisprudence cannot be doubted. Nor can it be doubted, however, that such a component is not only opposite from that of Gregg and the Fur-man three, but is also distinct from the traditional procedural due process approach exemplified, among the post-Gregg capital punishment cases, by decisions such as Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Thus, though we know that the Lockett-type procedural component exists, there are fewer of the normal guideposts by which to make a principled gauging of its limits and contours.