BEARD, SECRETARY, PENNSYLVANIA DEPART- MENT OF CORRECTIONS, et al. v. BANKS

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
406 OCTOBER TERM, 2003
Syllabus
BEARD, SECRETARY, PENNSYLVANIA DEPART-
MENT OF CORRECTIONS, et al. v. BANKS
certiorari to the united states court of appeals for
the third circuit
No. 02–1603. Argued February 24, 2004—Decided June 24, 2004
After respondent’s murder conviction and death sentence were upheld by
the Pennsylvania Supreme Court, this Court decided Mills v. Maryland,
486 U. S. 367, and McKoy v. North Carolina, 494 U. S. 433, in which it
held invalid capital sentencing schemes requiring juries to disregard
mitigating factors not found unanimously. After respondent’s state
postconviction Mills claim was rejected by the State Supreme Court on
the merits, he turned to the federal courts. Ultimately, the Third Cir-
cuit applied the analytical framework set forth in Teague v. Lane, 489
U. S. 288, under which federal habeas petitioners may not avail them-
selves of new rules of constitutional criminal procedure outside two nar-
row exceptions; concluded that Mills did not announce a new rule and
therefore could be applied retroactively; and granted respondent relief.
Held: Because Mills announced a new rule of constitutional criminal pro-
cedure that does not fall within either Teague exception, its rule cannot
be applied retroactively. Pp. 411–420.
(a) Teague analysis involves a three-step process requiring a court to
determine when a defendant’s conviction became final; whether, given
the legal landscape at the time the conviction became final, the rule
sought to be applied is actually new; and, if so, whether it falls within
either of two exceptions to nonretroactivity. P. 411.
(b) Respondent’s conviction became final before Mills was decided.
The normal rule for determining a state conviction’s finality for retroac-
tivity review—when the availability of direct appeal to the state courts
has been exhausted and the time for filing a certiorari petition has
elapsed or a timely petition has been finally denied—applies here. That
the Pennsylvania Supreme Court considered the merits of respondent’s
Mills claim on collateral review does not change his conviction’s finality
to a date subsequent to Mills. Pp. 411–413.
(c) Mills announced a new rule. In reaching its conclusion in Mills
and McKoy, this Court relied on a line of cases beginning with Lockett
v. Ohio, 438 U. S. 586. Lockett’s general rule that the sentencer must
be allowed to consider any mitigating evidence could be thought to sup-
port the conclusion in Mills and McKoy that capital sentencing schemes
cannot require juries to disregard mitigating factors not found unani-
mously, but it did not mandate the Mills rule. Each of the cases relied

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
407 Cite as: 542 U. S. 406 (2004)
Syllabus
on by Mills (and McKoy) considered only obstructions to the sentencer’s
ability to consider mitigating evidence. Mills’ innovation rests with its
shift in focus to individual jurors. Moreover, there is no need to guess
whether reasonable jurists could have differed as to whether the Lockett
line of cases compelled Mills. Four dissenting Justices in Mills rea-
soned that because nothing prevented the jury from hearing the mitigat-
ing evidence, Lockett did not control; and three dissenting Justices in
McKoy concluded that Lockett did not remotely support the new focus
on individual jurors. Because the Mills rule broke new ground, it ap-
plies to respondent on collateral review only if it falls under a Teague
exception. Pp. 413–416.
(d) The Mills rule does not fall within either exception. There is no
argument that the first exception applies here. And this Court has
repeatedly emphasized the limited scope of the second exception—for
“ ‘watershed rules of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding,’ ” O’Dell v. Netherland,
521 U. S. 151, 157—which “ ‘is clearly meant to apply only to a small core
of rules requiring observance of those procedures that . . . are implicit
in the concept of ordered liberty,’ ” ibid. This Court has yet to find a
new rule that falls under this exception. In providing guidance as to
what might do so, the Court has repeatedly, and only, referred to the
right-to-counsel rule of Gideon v. Wainwright, 372 U. S. 335, which “al-
ter[ed] [the Court’s] understanding of the bedrock procedural elements
essential to the fairness of a proceeding,” Sawyer v. Smith, 497 U. S.
227, 242. The Court has not hesitated to hold less sweeping and funda-
mental rules outside the exception. See, e. g., O’Dell v. Netherland,
supra. While Mills and McKoy were decided to avoid potentially arbi-
trary impositions of the death sentence, the Mills rule has “none of the
primacy and centrality of the rule adopted in Gideon,” Saffle v. Parks,
494 U. S. 484, 495. It applies narrowly and works no fundamental shift
in the Court’s “ ‘understanding of the bedrock procedural elements’ ”
essential to fundamental fairness, O’Dell, supra, at 167. Pp. 416–420.
316 F. 3d 228, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J.,
filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ.,
joined, post, p. 420. Souter, J., filed a dissenting opinion, in which Gins-
burg, J., joined, post, p. 423.
Ronald Eisenberg argued the cause for petitioners. With
him on the briefs were Scott C. Gartley, Thomas W. Dol-
genos, and Lynne Abraham.

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
408 BEARD v. BANKS
Opinion of the Court
Albert J. Flora, Jr., argued the cause for respondent.
With him on the brief were Basil G. Russin, Joseph Cos-
grove, Matthew C. Lawry, and Maureen Kearney Rowley.*
Justice Thomas delivered the opinion of the Court.
In Mills v. Maryland, 486 U. S. 367 (1988), and McKoy v.
North Carolina, 494 U. S. 433 (1990), this Court held invalid
capital sentencing schemes that require juries to disregard
mitigating factors not found unanimously. In this case, we
must determine whether the rule announced in Mills and
McKoy can be applied on federal habeas corpus review to a
defendant whose conviction became final in 1987. Under our
retroactivity analysis as set forth in Teague v. Lane, 489 U. S.
288 (1989), federal habeas corpus petitioners may not avail
themselves of new rules of criminal procedure outside two
narrow exceptions. We conclude that Mills announced
a new rule that does not fall within either of Teague’s
exceptions.
I
More than 20 years ago, a jury convicted respondent,
George Banks, of 12 counts of first-degree murder, and the
trial court sentenced him to death. The facts of this case
are set forth in detail in the Pennsylvania Supreme Court’s
decision affirming respondent’s conviction and sentence on
direct review. See Commonwealth v. Banks, 513 Pa. 318,
521 A. 2d 1 (1987). Direct review ended when this Court
denied certiorari on October 5, 1987. Banks v. Pennsylva-
nia, 484 U. S. 873. Approximately eight months later, this
Court handed down its decision in Mills, supra, which an-
nounced that the Constitution forbids States from imposing
*Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda-
tion as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Larry Yackle, Joshua Dratel, Steven R.
Shapiro, and Stefan Presser; and for the Pennsylvania Association of
Criminal Defense Lawyers by Louis M. Natali, Jr., and Peter Goldberger.

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
409 Cite as: 542 U. S. 406 (2004)
Opinion of the Court
a requirement that the jury find a potential mitigating factor
unanimously before that factor may be considered in the sen-
tencing decision.
Respondent pursued state postconviction relief on the the-
ory that the instructions and verdict form given to the jury
in his case violated the Mills principle, but the Pennsylvania
Supreme Court rejected this claim on the merits. See Com-
monwealth v. Banks, 540 Pa. 143, 656 A. 2d 467 (1995). Re-
spondent then turned to the federal courts. Although the
District Court denied relief, Banks v. Horn, 63 F. Supp. 2d
525 (MD Pa. 1999), the Court of Appeals for the Third Circuit
reversed respondent’s death sentence, Banks v. Horn, 271
F. 3d 527 (2001). In reaching its decision, the Court of Ap-
peals declined to apply the retroactivity analysis set forth in
Teague v. Lane, supra, to the question whether Mills applied
retroactively to respondent. This was not necessary, in the
Court of Appeals’ view, because the Pennsylvania Supreme
Court had itself applied Mills. 271 F. 3d, at 543. We sum-
marily reversed, holding that “in addition to performing any
analysis required by AEDPA [the Antiterrorism and Effec-
tive Death Penalty Act of 1996], a federal court considering
a habeas petition must conduct a threshold Teague analysis
when the issue is properly raised by the state.” Horn v.
Banks, 536 U. S. 266, 272 (2002) (per curiam) (Banks I).
On remand, the Court of Appeals considered the retroac-
tive application of Mills. Banks v. Horn, 316 F. 3d 228 (CA3
2003). The court recognized that its primary task was to
determine whether Mills announced a new rule, and that
this, in turn, required it to ascertain whether the precedent
existing at the time respondent’s conviction became final dic-
tated or compelled the rule in Mills. 316 F. 3d, at 233–235.
From this Court’s decisions in Lockett v. Ohio, 438 U. S. 586
(1978), Eddings v. Oklahoma, 455 U. S. 104 (1982), and their
direct progeny, the Court of Appeals distilled the rule that
the “Eighth Amendment prohibits any barrier to the sen-
tencer’s consideration of mitigating evidence.” 316 F. 3d, at

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
410 BEARD v. BANKS
Opinion of the Court
239. The Court of Appeals characterized this Court’s deci-
sion in Mills as “merely recogniz[ing] that the perceived
need for unanimity could constitute one such unconstitu-
tional barrier,” and concluded that the existing legal land-
scape compelled the decision in Mills. 316 F. 3d, at 240.
Accordingly, the court held that Mills applied retroactively
to respondent and reinstated the remainder of its previous
opinion, again granting respondent relief from his death
sentence.1
We granted the Commonwealth’s second petition for cer-
tiorari in this case to decide whether Mills applies retroac-
tively to respondent and, if so, whether the Pennsylvania Su-
preme Court unreasonably applied federal law in holding
that there was no Mills error in respondent’s case. 539 U. S.
987 (2003). Although the Lockett/Eddings line of cases sup-
ports the Court’s decision in Mills, it does not compel that
decision. Mills therefore announced a new rule. We are
also unable to conclude that the Mills rule falls under either
Teague exception. In particular, Mills did not announce a
“watershed rul[e] of criminal procedure implicating the fun-
damental fairness and accuracy of the criminal proceeding.”
Saffle v. Parks, 494 U. S. 484, 495 (1990) (internal quotation
marks omitted). Accordingly, we again reverse the judg-
ment of the Court of Appeals.2
1 Judge Sloviter wrote separately to express her view that Mills v.
Maryland, 486 U. S. 367 (1988), established a new rule that qualified for
neither Teague v. Lane, 489 U. S. 288 (1989), exception. 316 F. 3d 228,
253–254 (CA3 2003) (opinion concurring in judgment). Judge Sloviter
nevertheless posited that Mills could be applied to respondent because of
Pennsylvania’s “unique relaxed waiver doctrine in capital cases.” 316 F.
3d, at 256.
2 Given our determination that the Court of Appeals erred in holding
that Mills applied retroactively to respondent, we do not reach the ques-
tion whether the Court of Appeals also erred in concluding that the Penn-
sylvania Supreme Court unreasonably applied Mills.

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
411 Cite as: 542 U. S. 406 (2004)
Opinion of the Court
II
Under Teague, the determination whether a constitutional
rule of criminal procedure applies to a case on collateral re-
view involves a three-step process. See, e. g., Lambrix v.
Singletary, 520 U. S. 518, 527 (1997). First, the court must
determine when the defendant’s conviction became final.
Second, it must ascertain the “legal landscape as it then ex-
isted,” Graham v. Collins, 506 U. S. 461, 468 (1993), and ask
whether the Constitution, as interpreted by the precedent
then existing, compels the rule, Saffle, supra, at 488. That
is, the court must decide whether the rule is actually “new.”
Finally, if the rule is new, the court must consider whether it
falls within either of the two exceptions to nonretroactivity.
Lambrix, supra, at 527.3
A
Ordinarily, ascertaining the date on which a defendant’s
conviction becomes final poses no difficulties: State convic-
tions are final “for purposes of retroactivity analysis when
the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of cer-
tiorari has elapsed or a timely filed petition has been finally
denied.” Caspari v. Bohlen, 510 U. S. 383, 390 (1994). See
also Clay v. United States, 537 U. S. 522, 527 (2003). Re-
spondent, however, urges a different rule. He argues that,
in view of the Pennsylvania Supreme Court’s unique “relaxed
waiver rule”—pursuant to which that court considered his
Mills claim on the merits—his conviction became final for
Teague purposes in 1995 when the State Supreme Court de-
cided the Mills claim against him. Brief for Respondent 25–
31. Because of the Pennsylvania Supreme Court’s practice
3 Rules that fall within what we have referred to as Teague’s first excep-
tion “are more accurately characterized as substantive rules not subject
to [Teague’s] bar.” Schriro v. Summerlin, ante, at 352, n. 4. See also
infra, at 416, and n. 7.

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
412 BEARD v. BANKS
Opinion of the Court
of considering forfeited claims in capital cases, respondent
insists, “conventional notions of ‘finality’ ” do not apply.
Id., at 27.
In the past, the Pennsylvania Supreme Court did, in fact,
apply a “relaxed waiver rule” in death penalty cases. See,
e. g., Commonwealth v. DeHart, 539 Pa. 5, 25, 650 A. 2d 38,
48 (1994); Commonwealth v. Billa, 521 Pa. 168, 181, 555 A. 2d
835, 842 (1989). But this practice, which the court has aban-
doned, see Commonwealth v. Albrecht, 554 Pa. 31, 44–46, 720
A. 2d 693, 700 (1998), “was not absolute, but discretionary,”
Commonwealth v. Freeman, 573 Pa. 532, 557, n. 9, 827 A. 2d
385, 400, n. 9 (2003) (describing past practice). Notably, the
Pennsylvania Supreme Court has expressly stated, in a capi-
tal case, that it would decline to apply Mills retroactively.
Commonwealth v. Peterkin, 538 Pa. 455, 465, n. 4, 649 A. 2d
121, 126, n. 4 (1994).
A state court’s past discretionary “ ‘practice’ [of] declin-
[ing] to apply ordinary waiver principles in capital cases,”
Albrecht, supra, at 44, 720 A. 2d, at 700, does not render
convictions and sentences that are no longer subject to direct
review nonfinal for Teague purposes. Such a judgment is
“final” despite the possibility that a state court might, in its
discretion, decline to enforce an available procedural bar and
choose to apply a new rule of law. Cf. Wainwright v. Sykes,
433 U. S. 72, 81–91 (1977).
Respondent’s argument reflects a fundamental misunder-
standing of Teague. Teague’s nonretroactivity principle acts
as a limitation on the power of federal courts to grant “ha-
beas corpus relief to . . . state prisoner[s].” Caspari, 510
U. S., at 389. That is why federal habeas corpus courts
“must apply Teague before considering the merits of [a]
claim,” ibid., whenever the State raises the question, a point
we explained in Banks I, see 536 U. S., at 271. See also id.,
at 271–272 (explaining that the Court of Appeals had erred
by focusing only on the Pennsylvania Supreme Court’s treat-
ment of respondent’s Mills claim).

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
413 Cite as: 542 U. S. 406 (2004)
Opinion of the Court
This should make clear that the Teague principle protects
not only the reasonable judgments of state courts but also
the States’ interest in finality quite apart from their courts.
As Teague explained:
“In many ways the application of new rules to cases on
collateral review may be more intrusive than the enjoin-
ing of criminal prosecutions, cf. Younger v. Harris, 401
U. S. 37, 43–54 (1971), for it continually forces the
States to marshal resources in order to keep in prison
defendants whose trials and appeals conformed to then-
existing constitutional standards.” 489 U. S., at 310.
In short, our rule for determining when a state conviction
becomes final applies to this case without modification, and
we agree with the Court of Appeals that respondent’s convic-
tion became final in 1987. See 316 F. 3d, at 235.
B
We must therefore assay the legal landscape as of 1987 and
ask “whether the rule later announced in [Mills] was dic-
tated by then-existing precedent—whether, that is, the un-
lawfulness of [respondent’s] conviction was apparent to all
reasonable jurists.” Lambrix, supra, at 527–528. In Mills,
the Court held that the Constitution prohibits States from
requiring jurors to find mitigating factors unanimously.
McKoy, 494 U. S., at 444; Mills, 486 U. S., at 374–375; id., at
384 (vacating death sentence because the jury instructions
gave rise to a “substantial probability that reasonable jurors
. . . may have thought they were precluded from considering
any mitigating evidence” not found unanimously).4
In reaching its conclusion, the Court in Mills and McKoy
relied on a line of cases beginning with Lockett v. Ohio, 438
4 Although nothing in this case turns on it, we note that it is arguable
that the “Mills rule” did not fully emerge until the Court issued McKoy
v. North Carolina, 494 U. S. 433 (1990). See id., at 459–463 (Scalia, J.,
dissenting).

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
414 BEARD v. BANKS
Opinion of the Court
U. S. 586 (1978) (plurality opinion), and Eddings v. Okla-
homa, 455 U. S. 104 (1982). In Lockett, a plurality of the
Court struck down Ohio’s death penalty statute because it
prevented the sentencer from “considering, as a mitigating
factor,” certain “aspect[s] of a defendant’s character or rec-
ord and [certain] circumstances of the offense that the de-
fendant proffer[ed] as a basis for a sentence less than death.”
438 U. S., at 604. A majority of the Court first embraced
this principle in Eddings. There, the Court confronted a sit-
uation in which the sentencer had found, “as a matter of law
[that it] was unable even to consider [potentially mitigating]
evidence.” 455 U. S., at 113. The Court held that this limi-
tation violated the Lockett rule. 455 U. S., at 113–115. See
also Skipper v. South Carolina, 476 U. S. 1, 4, 8–9 (1986)
(holding that States cannot, through evidentiary rules, ex-
clude relevant mitigating evidence from the sentencer’s
consideration).
In Mills, the Court noted that its previous cases did not
depend on the source of the potential barrier to the sen-
tencer’s ability to consider mitigating evidence. 486 U. S.,
at 375. The Court then asserted that “[t]he same [rule must
apply] with respect to a single juror’s holdout vote against
finding the presence of a mitigating circumstance.” Ibid.
See also McKoy, supra, at 441–443 (quoting Mills and per-
forming the same analysis).
The generalized Lockett rule (that the sentencer must
be allowed to consider any mitigating evidence) could be
thought to support the Court’s conclusion in Mills and
McKoy. But what is essential here is that it does not man-
date the Mills rule. Each of the cases relied on by Mills
(and McKoy) specifically considered only obstructions to the
sentencer’s ability to consider mitigating evidence. Mills’
innovation rests with its shift in focus to individual jurors.
We think it clear that reasonable jurists could have differed
as to whether the Lockett principle compelled Mills. See
Lambrix, 520 U. S., at 527–528.

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
415 Cite as: 542 U. S. 406 (2004)
Opinion of the Court
But there is no need to guess. In Mills, four Justices dis-
sented, reasoning that because nothing prevented the jurors
from hearing any mitigating evidence that the defendant
proffered, the Lockett principle did not control. 486 U. S., at
394 (opinion of Rehnquist, C. J.). In McKoy, three Justices
dissented, explaining that “ ‘the principle established in
Lockett’ does not remotely support” the new focus on indi-
vidual jurors. 494 U. S., at 464 (opinion of Scalia, J.); see
id., at 466 (“In short, Lockett and Eddings are quite simply
irrelevant to the question before us . . .”); see also id., at
452–453 (Kennedy, J., concurring in judgment) (noting that
the Court “stretche[d]” the Lockett cases “beyond their
proper bounds”). The dissent in McKoy stressed the
Court’s move from jury to juror. See 494 U. S., at 465–466
(opinion of Scalia, J.). Indeed, prior to Mills, none of the
Court’s relevant cases addressed individual jurors, see, e. g.,
Hitchcock v. Dugger, 481 U. S. 393 (1987), a trend that contin-
ued even after Mills, see, e. g., Saffle v. Parks, 494 U. S. 484
(1990); Penry v. Lynaugh, 492 U. S. 302 (1989); Franklin v.
Lynaugh, 487 U. S. 164 (1988).
The McKoy dissent also explained that the Mills rule gov-
erns how the sentencer considers evidence, not what evi-
dence it considers. In the dissent’s view, the Lockett line
governed the latter but not the former. See 494 U. S., at
465–466 (opinion of Scalia, J.). For this distinction, the dis-
sent relied on Saffle v. Parks, supra, decided the same day.
There, the Court held that the Lockett line of cases did not
compel (assuming it informed) the sought-for rule that States
may not “instruct the sentencer to render its decision on the
evidence without sympathy.” 494 U. S., at 490. The Court
observed:
“Parks asks us to create a rule relating, not to what
mitigating evidence the jury must be permitted to con-
sider in making its sentencing decision, but to how it
must consider the mitigating evidence. There is a sim-
ple and logical difference between rules that govern

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
416 BEARD v. BANKS
Opinion of the Court
what factors the jury must be permitted to consider in
making its sentencing decision and rules that govern
how the State may guide the jury in considering and
weighing those factors in reaching a decision.” Ibid.
Thus, although the Lockett principle—conceived of at a high
level of generality—could be thought to support the Mills
rule, reasonable jurists differed even as to this point. It
follows a fortiori that reasonable jurists could have con-
cluded that the Lockett line of cases did not compel Mills.5
Given the brand new attention Mills paid to individual ju-
rors and the relevance of the what/how distinction drawn in
Saffle (which again distinguishes Mills from the Lockett
line), we must conclude that the Mills rule “br[o]k[e] new
ground,” Teague, 489 U. S., at 301.6 Accordingly, Mills an-
nounced a new rule, which does not apply to respondent on
collateral review, unless, of course, it falls under one of
Teague’s exceptions.
C
Teague’s bar on retroactive application of new rules of con-
stitutional criminal procedure has two exceptions. First,
the bar does not apply to rules forbidding punishment “of
certain primary conduct [or to] rules prohibiting a certain
category of punishment for a class of defendants because of
their status or offense.” Penry, supra, at 330; see also
5 Because the focus of the inquiry is whether reasonable jurists could
differ as to whether precedent compels the sought-for rule, we do not
suggest that the mere existence of a dissent suffices to show that the
rule is new.
6 The Court of Appeals erred by drawing from Lockett v. Ohio, 438 U. S.
586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), the general rule
that “the Constitution prohibited any barrier to the jury’s consideration of
mitigating evidence,” 316 F. 3d, at 241–243 (emphasis added), without also
acknowledging that the rule, for purposes of the Teague analysis, did not
automatically extend to arguably analogous contexts. It is with respect
to this last point that reasonable jurists did in fact differ.

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
417 Cite as: 542 U. S. 406 (2004)
Opinion of the Court
O’Dell v. Netherland, 521 U. S. 151, 157 (1997).7 There is
no argument that this exception applies here. The second
exception is for “ ‘watershed rules of criminal procedure im-
plicating the fundamental fairness and accuracy of the crimi-
nal proceeding.’ ” Ibid. (quoting Graham, 506 U. S., at 478).
We have repeatedly emphasized the limited scope of the
second Teague exception, explaining that “ ‘it is clearly
meant to apply only to a small core of rules requiring observ-
ance of those procedures that . . . are implicit in the concept
of ordered liberty.’ ” O’Dell, supra, at 157 (quoting Graham,
supra, at 478). And, because any qualifying rule “ ‘would
be so central to an accurate determination of innocence or
guilt [that it is] unlikely that many such components of basic
due process have yet to emerge,’ ” Graham, supra, at 478
(quoting Teague, supra, at 313), it should come as no surprise
that we have yet to find a new rule that falls under the sec-
ond Teague exception. Perhaps for this reason, respondent
does not even attempt to argue that Mills qualifies or to
rebut petitioners’ argument that it does not, Brief for Peti-
tioners 23–26.
In providing guidance as to what might fall within this
exception, we have repeatedly referred to the rule of Gideon
v. Wainwright, 372 U. S. 335 (1963) (right to counsel), and
only to this rule. See, e. g., Saffle, supra, at 495; cf. Gilmore
v. Taylor, 508 U. S. 333, 364 (1993) (Blackmun, J., dissenting).
Gideon overruled Betts v. Brady, 316 U. S. 455 (1942), noting
that Betts itself had “made an abrupt break with [the
Court’s] well-considered precedents.” 372 U. S., at 344.
The Court continued:
“Lawyers to prosecute are everywhere deemed essential
to protect the public’s interest in an orderly society.
Similarly, there are few defendants charged with crime,
few indeed, who fail to hire the best lawyers they can
7 As noted above, these rules are more properly viewed as substantive
and therefore not subject to Teague’s bar. See n. 3, supra.

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
418 BEARD v. BANKS
Opinion of the Court
get to prepare and present their defenses. That gov-
ernment hires lawyers to prosecute and defendants who
have the money hire lawyers to defend are the strongest
indications of the widespread belief that lawyers in
criminal courts are necessities, not luxuries. The right
of one charged with crime to counsel may not be deemed
fundamental and essential to fair trials in some coun-
tries, but it is in ours. From the very beginning, our
state and national constitutions and laws have laid
great emphasis on procedural and substantive safe-
guards designed to assure fair trials before impartial
tribunals in which every defendant stands equal before
the law. This noble ideal cannot be realized if the poor
man charged with crime has to face his accusers with-
out a lawyer to assist him.” Ibid. (emphasis added).
See also id., at 344–345 (quoting Powell v. Alabama, 287
U. S. 45, 68–69 (1932)). Gideon, it is fair to say, “alter[ed]
our understanding of the bedrock procedural elements essen-
tial to the fairness of a proceeding.” Sawyer v. Smith, 497
U. S. 227, 242 (1990) (internal quotation marks omitted).
By contrast, we have not hesitated to hold that less sweep-
ing and fundamental rules do not fall within Teague’s second
exception. In O’Dell v. Netherland, supra, for example, we
considered the retroactivity of the rule announced in Sim-
mons v. South Carolina, 512 U. S. 154 (1994). Simmons
held that a capital defendant must be allowed to inform the
sentencer that he would be ineligible for parole if the pros-
ecution argues future dangerousness. We rejected the pe-
titioner’s argument that the Simmons rule was “ ‘on par’
with Gideon v. Wainwright, 372 U. S. 335 (1963),” emphasiz-
ing “the sweeping [nature] of Gideon, which established an
affirmative right to counsel in all felony cases.” O’Dell,
supra, at 167.
And, in Sawyer v. Smith, supra, we considered whether a
habeas petitioner could make use of the rule announced in
Caldwell v. Mississippi, 472 U. S. 320, 323 (1985) (holding

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
419 Cite as: 542 U. S. 406 (2004)
Opinion of the Court
that the Eighth Amendment bars imposition of the death
penalty by a jury that had been led to believe that responsi-
bility for the ultimate decision rested elsewhere). There too
we declined to give retroactive effect to a rule that effec-
tively withheld relevant information from the sentencer.
See Sawyer, supra, at 242–245. We acknowledged that the
Caldwell rule was intended to enhance “the accuracy of capi-
tal sentencing.” 497 U. S., at 244. But because it effected
an incremental change, we could not conclude that “this sys-
temic rule enhancing reliability is an ‘absolute prerequisite
to fundamental fairness.’ ” Ibid. (quoting Teague, 489 U. S.,
at 314). See also Graham, supra, at 478 (concluding that
the rule announced in Penry v. Lynaugh, 492 U. S. 302
(1989), does not fall within the second Teague exception).
We recognize that avoidance of potentially arbitrary impo-
sitions of the death sentence motivated the Court in Mills
and McKoy. Mills described two troubling situations that
could theoretically occur absent the Mills rule. Eleven of
twelve jurors, could, for example, agree that six mitigating
circumstances existed, but one holdout juror could neverthe-
less force the death sentence. Similarly, all 12 jurors could
agree that some mitigating circumstances existed and that
these outweighed any aggravators, but because they did not
agree on which mitigating circumstances were present, they
would again have to return a death sentence. See Mills,
486 U. S., at 373–374; see also McKoy, 494 U. S., at 439–440
(describing these examples). Imposition of the death pen-
alty in these circumstances, the Court reasoned, “would be
the ‘height of arbitrariness.’ ” Id., at 440 (quoting Mills,
supra, at 374). See also McKoy, supra, at 454 (Kennedy,
J., concurring in judgment).
Quite obviously, the Court decided Mills and McKoy as it
did to avoid this possibility. But because “[a]ll of our Eighth
Amendment jurisprudence concerning capital sentencing is
directed toward the enhancement of reliability and accuracy
in some sense,” the fact that a new rule removes some re-

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
420 BEARD v. BANKS
Stevens, J., dissenting
mote possibility of arbitrary infliction of the death sentence
does not suffice to bring it within Teague’s second exception.
Sawyer, supra, at 243.
However laudable the Mills rule might be, “it has none of
the primacy and centrality of the rule adopted in Gideon.”
Saffle, 494 U. S., at 495. The Mills rule applies fairly nar-
rowly and works no fundamental shift in “our understanding
of the bedrock procedural elements” essential to fundamen-
tal fairness. O’Dell, 521 U. S., at 167 (internal quotation
marks omitted). We therefore conclude that the Mills rule
does not fall within the second Teague exception.
III
We hold that Mills announced a new rule of constitutional
criminal procedure that falls within neither Teague excep-
tion. Accordingly, that rule cannot be applied retroactively
to respondent. The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
A capital sentencing procedure that required the jury to
return a death sentence if even a single juror supported that
outcome would be the “ ‘ “height of arbitrariness.” ’ ” Ante,
at 419. The use of such a procedure is unquestionably un-
constitutional today, and I believe it was equally so in 1987
when respondent’s death sentence became final. The Court
reaches a different conclusion because it reads Mills v.
Maryland, 486 U. S. 367 (1988), to announce a “new rule” of
criminal procedure that may not be applied on federal habeas
review to defendants whose convictions became final before
Mills was decided. Ante, at 408. In my opinion, however,
Mills simply represented a straightforward application of
our longstanding view that “the Eighth and Fourteenth

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
421 Cite as: 542 U. S. 406 (2004)
Stevens, J., dissenting
Amendments cannot tolerate the infliction of a sentence of
death under [a] legal syste[m] that permit[s] this unique pen-
alty to be . . . wantonly and . . . freakishly imposed.” Fur-
man v. Georgia, 408 U. S. 238, 310 (1972) (Stewart, J.,
concurring).
The dispute in Mills concerned jury instructions and a
verdict form that the majority read to create a “substantial
probability that reasonable jurors . . . well may have thought
they were precluded from considering any mitigating evi-
dence unless all 12 jurors agreed on the existence of a partic-
ular such circumstance.” 486 U. S., at 384. The resulting
unanimity requirement, the majority concluded, violated the
Constitution in that it “allow[ed] a ‘holdout’ juror to prevent
the other jurors from considering mitigating evidence.”
McKoy v. North Carolina, 494 U. S. 433, 438 (1990) (quoting
Mills, 486 U. S., at 375). When Mills was decided, there
was nothing novel about acknowledging that permitting one
death-prone juror to control the entire jury’s sentencing deci-
sion would be arbitrary. That acknowledgment was a natu-
ral outgrowth of our cases condemning mandatory imposition
of the death penalty, Roberts v. Louisiana, 431 U. S. 633
(1977) (per curiam); Woodson v. North Carolina, 428 U. S.
280 (1976) (plurality opinion), recognizing that arbitrary im-
position of that penalty violates the Eighth Amendment,1
e. g., Zant v. Stephens, 462 U. S. 862, 874 (1983); Gregg v.
Georgia, 428 U. S. 153, 189 (1976); Furman, supra, and man-
dating procedures that guarantee full consideration of miti-
1 Justice Kennedy made precisely this point in his concurrence in
McKoy v. North Carolina, 494 U. S. 433, 454 (1990):
“Application of the death penalty on the basis of a single juror’s vote is
‘intuitively disturbing.’ . . . More important, it represents imposition of
capital punishment through a system that can be described as arbitrary
or capricious. The Court in Mills described such a result as the ‘height
of arbitrariness.’ . . . Given this description, it is apparent that the result
in Mills fits within our line of cases forbidding the imposition of capital
punishment on the basis of ‘caprice,’ in ‘an arbitrary and unpredictable
fashion,’ or through ‘arbitrary’ or ‘freakish’ means.”

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
422 BEARD v. BANKS
Stevens, J., dissenting
gating evidence, e. g., Eddings v. Oklahoma, 455 U. S. 104
(1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opin-
ion). Indeed, in my judgment, the kind of arbitrariness that
would enable 1 vote in favor of death to outweigh 11 in favor
of forbearance would violate the bedrock fairness principles
that have governed our trial proceedings for centuries. Re-
jecting such a manifestly unfair procedural innovation does
not announce a “new rule” covered by Teague v. Lane, 489
U. S. 288, 301–302 (1989), but simply affirms that our fairness
principles do not permit blatant exceptions.2
This leaves only the question whether reasonable jurors
could have read Pennsylvania’s jury instructions and verdict
2 Supporting this reading, even the dissenting Justices in Mills v. Mary-
land, 486 U. S. 367 (1988), did not challenge the majority’s assumption that
instructions unambiguously requiring unanimity on the existence of any
mitigating factor would be unconstitutional; they argued only that reason-
able jurors would have understood that in order “to mark ‘no’ to each
mitigating factor on the sentencing form, all 12 jurors [had to] agree.”
Id., at 394 (Rehnquist, C. J., dissenting) (emphasis added). I recognize
that some Justices believe the Mills Court had no occasion to consider the
constitutionality of a unanimity requirement because the State had con-
ceded the point. See McKoy, 494 U. S., at 459 (Scalia, J., dissenting)
(“Although there is language in Mills . . . suggesting that a unanimity
requirement would contravene this Court’s decisions . . . , that issue plainly
was not presented in Mills, and can therefore not have been decided”).
Mills’ author, Justice Blackmun, disagreed with this view, however: “[T]he
Maryland instructions [at issue in Mills] were held to be invalid because
they were susceptible of two plausible interpretations, and under one of
those interpretations the instructions were unconstitutional.” McKoy,
494 U. S., at 445 (concurring opinion) (emphasis in original).
I think Justice Blackmun had the better of this argument, but even
if one assumes the Mills dissenters failed to defend the constitutional-
ity of unanimity requirements because they did not think the issue prop-
erly before the Court rather than because they, too, condemned such re-
quirements, my overall point remains the same: executing a defendant
when only 1 of his 12 jurors believes that to be the appropriate penalty
would be “so wanto[n] and so freakis[h]” as to violate the Eighth and
Fourteenth Amendments, Furman v. Georgia, 408 U. S. 238, 310 (1972)
(Stewart, J., concurring), and that violation would have been as clear in
1987 as today.

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
423 Cite as: 542 U. S. 406 (2004)
Souter, J., dissenting
form to impose a unanimity requirement with respect to mit-
igating circumstances. For the reasons identified by the
Third Circuit, Banks v. Horn, 271 F. 3d 527, 543–551 (2001);
see also Banks v. Horn, 316 F. 3d 228, 247 (2003) (leaving
in place the relevant portions of the court’s earlier opinion),
particularly with respect to the verdict form, 271 F. 3d, at
549–550, I answer this question in the affirmative.
I would affirm the judgment of the Court of Appeals.
Justice Souter, with whom Justice Ginsburg joins,
dissenting.
I join Justice Stevens’s dissenting opinion in this case.
I add this word about the way I see its relation to Justice
Breyer’s dissenting opinion in Schriro v. Summerlin, ante,
p. 358, and to other cases in the line that began with Teague
v. Lane, 489 U. S. 288 (1989).
In determining whether Mills v. Maryland, 486 U. S. 367
(1988), states a new rule of constitutional law for purpose of
Teague’s general bar to applying such rules on collateral re-
view, the Court invokes the perspective of “ ‘all reasonable
jurists,’ ” ante, at 413 (quoting Lambrix v. Singletary, 520
U. S. 518, 528 (1997)); see also ante, at 414–416. It acknowl-
edges, however, that this standard is objective, so that the
presence of actual disagreement among jurists and even
among Members of this Court does not conclusively establish
a rule’s novelty. Ante, at 416, n. 5; cf. Wright v. West, 505
U. S. 277, 304 (1992) (O’Connor, J., concurring in judgment).
This objectively reasonable jurist is a cousin to the common
law’s reasonable person, whose job is to impose a judicially
determined standard of conduct on litigants who come before
the court. Similarly, the function of Teague’s reasonable-
jurist standard is to distinguish those developments in this
Court’s jurisprudence that state judges should have antici-
pated from those they could not have been expected to
foresee.
In applying Teague, this Court engages in an ongoing proc-
ess of defining the characteristics of a reasonable jurist,

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
424 BEARD v. BANKS
Souter, J., dissenting
by identifying arguments that reasonable jurists would or
would not accept. The particular characteristic at stake
here is the degree to which a reasonable jurist would avoid
the risk of a certain kind of erroneous outcome in a capital
case. Mills’s rule protects against essentially the same kind
of error that Justice Breyer discusses in Summerlin: a
death sentence that is arbitrary because it is inaccurate as a
putative expression of “ ‘the conscience of the community on
the ultimate question of life or death,’ ” ante, at 360 (dissent-
ing opinion) (quoting Witherspoon v. Illinois, 391 U. S. 510,
519 (1968)). Justice Breyer has explained in his Summer-
lin opinion why some new rules demanding that kind of accu-
racy should be applied through a Teague exception, and our
longstanding espousal of accurate expression of community
conscience should also inform our judgment, in any debatable
case, about the newness of a rule.
As Justice Stevens says, a death sentence based upon a
verdict by 11 jurors who would have relied on a given miti-
gating circumstance to spare a defendant’s life, and a single
holdout who blocked them from doing so, would surely be an
egregious failure to express the public conscience accurately.
Ante, at 420–421 (dissenting opinion). The question pre-
sented by this case is ultimately whether the Court should
deem reasonable, and thus immunize from collateral attack,
at least at the first Teague stage, a reading of its pre-Mills
precedents that accepts the risk of such errors that Mary-
land’s or Pennsylvania’s jury instructions and verdict form
would have produced.
The Court concludes that, as compared with Eddings v.
Oklahoma, 455 U. S. 104 (1982), Mills “shift[ed] . . . focus”
from “obstructions to the sentencer’s ability to consider miti-
gating evidence” to the abilities of “individual jurors” to do
so, and that a reasonable jurist could have drawn a distinc-
tion on this basis. Ante, at 414. This approach gives con-
siderable weight to a reasonable jurist’s analytical capacity
to pick out arguably material differences between sets of

542US2 Unit: $U72 [10-25-06 15:39:42] PAGES PGT: OPIN
425 Cite as: 542 U. S. 406 (2004)
Souter, J., dissenting
facts, and relatively less to the jurist’s understanding of the
substance of the principles underlying our Eighth Amend-
ment cases that follow Furman v. Georgia, 408 U. S. 238
(1972) (per curiam). Although the Court’s view of the
reasonable jurist is not inconsistent with some of Teague’s
progeny,* for the reasons given in Justice Breyer’s dissent
in Summerlin, ante, at 362–365, 365–366, I am now con-
vinced that this reading of Teague gives too much impor-
tance to the finality of capital sentences and not enough to
their accuracy. I would affirm the judgment of the Court of
Appeals, and respectfully dissent.
*See, e. g., O’Dell v. Netherland, 521 U. S. 151, 157–166 (1997) (holding
new the rule of Simmons v. South Carolina, 512 U. S. 154 (1994), that a
jury may not be misled about defendant’s parole eligibility when prosecu-
tor argues future dangerousness); Lambrix v. Singletary, 520 U. S. 518,
527–539 (1997) (holding new the rule of Espinosa v. Florida, 505 U. S.
1079 (1992) (per curiam), that a Florida jury’s consideration of a vague
aggravating factor taints a judge’s later death sentence); see also Stringer
v. Black, 503 U. S. 222, 243–247 (1992) (Souter, J., dissenting) (arguing
that the rule of Maynard v. Cartwright, 486 U. S. 356 (1988), that sen-
tencer’s weighing among others of a vague aggravating factor taints a
death sentence, was new).