author: Justice White Justice Brennan, Justice O’Connor,

text:
    CITY OF CANTON, OHIO v. HARRIS et al.
    No. 86-1088.
    Argued November 8, 1988
    Decided February 28, 1989

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, and Stevens, JJ., joined, and in Parts I, II, and III of which O’Connor, Scalia, and Kennedy, JJ., joined, except as to n. 11. Brennan, J., filed a concurring opinion, post, p. 393. O’Connor, J., filed an opinion concurring in part and dissenting in part, in which Scalia and Kennedy, JJ., joined, post, p. 393.

      Carter G. Phillips argued the cause for petitioner. With him on the briefs were Mark D. Hopson, W. Scott Givin, William J. Hamann, and John S. Coury.

      David Rudovsky argued the cause for respondent. With him on the brief were Emanuella Hams Groves and Dexter W. Clark

        Benna Ruth Solomon, Beate Bloch, and Richard K, Willard filed a brief for the International City Management Association et al. as amici curiae urging reversal.

        John A. Powell, Steven R. Shapiro, Howard A. Friedman, and Michael Aaron Avery filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Justice White

delivered the opinion of the Court.

In this case, we are asked to determine if a municipality can ever be liable under 42 U. S. C. § 1983 for constitutional violations resulting from its failure to train municipal employees. We hold that, under certain circumstances, such liability is permitted by the statute.

I

In April 1978, respondent Geraldine Harris was arrested by officers of the Canton Police Department. Mrs. Harris was brought to the police station in a patrol wagon.

When she arrived at the station, Mrs. Harris was found sitting on the floor of the wagon. She was asked if she needed medical attention, and responded with an incoherent remark. After she was brought inside the station for processing, Mrs. Harris slumped to the floor on two occasions. Eventually, the police officers left Mrs. Harris lying on the floor to prevent her from falling again. No medical attention was ever summoned for Mrs. Harris. After about an hour, Mrs. Harris was released from custody, and taken by an ambulance (provided by her family) to a nearby hospital. There, Mrs. Harris was diagnosed as suffering from several emotional ailments; she was hospitalized for one week and received subsequent outpatient treatment for an additional year.

Some time later, Mrs. Harris commenced this action alleging many state-law and constitutional claims against the city of Canton and its officials. ■ Among these claims was one seeking to hold the city liable under 42 U. S. C. § 1983 for its violation of Mrs. Harris’ right, under the Due Process Clause of the Fourteenth Amendment, to receive necessary medical attention while in police custody.

A jury trial was held on Mrs. Harris’ claims. Evidence was presented that indicated that, pursuant to a municipal regulation, shift commanders were authorized to determine, in their sole discretion, whether a detainee required medical care. Tr. 2-139 — 2-143. In addition, testimony also suggested that Canton shift commanders were not provided with any special training (beyond first-aid training) to make a determination as to when to summon medical care for an injured detainee. Ibid.; App. to Pet. for Cert. 4a.

At the close of the evidence, the District Court submitted the case to the jury, which rejected all of Mrs. Harris’ claims except one: her § 1983 claim against the city resulting from its failure to provide her with medical treatment while in custody. In rejecting the city’s subsequent motion for judgment notwithstanding the verdict, the District Court explained the theory of liability as follows:

“The evidence construed in a manner most favorable to Mrs. Harris could be found by a jury to demonstrate that the City of Canton had a custom or policy of vesting complete authority with the police supervisor of when medical treatment would be administered to prisoners. Further, the jury could find from the evidence that the vesting of such carte blanche authority with the police supervisor without adequate training to recognize when medical treatment is needed was grossly negligent or so reckless that future police misconduct was almost inevitable or substantially certain to result.” Id., at 16a.

On appeal, the Sixth Circuit affirmed this aspect of the District Court’s analysis, holding that “a municipality is liable for failure to train its police force, [where] the plaintiff . . . prove[s] that the municipality acted recklessly, intentionally, or with gross negligence.” Id., at 5a. The Court of Appeals also stated that an additional prerequisite of this theory of liability was that the plaintiff must prove “that the lack of training was so reckless or grossly negligent that deprivations of persons’ constitutional rights were substantially certain to result.” Ibid. Thus, the Court of Appeals found that there had been no error in submitting Mrs. Harris’ “failure to train” claim to the jury. However, the Court of Appeals reversed the judgment for respondent, and remanded this case for a new trial, because it found that certain aspects of the District Court’s jury instructions might have led the jury to believe that it could find against the city on a mere respondeat superior theory. Because the jury’s verdict did not state the basis on which it had ruled for Mrs. Harris on her § 1983 claim, a new trial was ordered.

The city petitioned for certiorari, arguing that the Sixth Circuit’s holding represented an impermissible broadening of municipal liability under § 1983. We granted the petition. 485 U. S. 933 (1988).

II

We first address respondent’s contention that the writ of certiorari should be dismissed as improvidently granted, because “petitioner failed to preserve for review the principal issues it now argues in this Court.” Brief for Respondent 5.

We think it clear enough that petitioner’s three “Questions Presented” in its petition for certiorari encompass the critical question before us in this case: Under what circumstances can inadequate training be found to be a “policy” that is actionable under § 1983? See Pet. for Cert. i. The petition itself addressed this issue directly, attacking the Sixth Circuit’s “failure to train” theory as inconsistent with this Court’s precedents. See id., at 8-12. It is also clear — as respondent conceded at argument, Tr. of Oral Arg. 34, 54— that her brief in opposition to our granting of certiorari did not raise the objection that petitioner had failed to press its claims on the courts below.

As to respondent’s contention that the claims made by petitioner here were not made in the same fashion below, that failure, if it occurred, does not affect our jurisdiction; and because respondent did not oppose our grant of review at that time based on her contention that these claims were not pressed below, we will not dismiss the writ as improvidently granted. “[T]he ‘decision to grant certiorari represents a commitment of scarce judicial resources with a view to deciding the merits ... of the questions presented in the petition.”’ St. Louis v. Praprotnik, 485 U. S. 112, 120 (1988) (quoting Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985)). As we have expressly admonished litigants in respondent’s position: “Nonjurisdictional defects of this sort should be brought to our attention no later than in respondent’s brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived.” Tuttle, supra, at 816.

It is true that petitioner’s litigation posture with respect to the questions presented here has not been consistent; most importantly, petitioner conceded below that “‘inadequate training’ [is] a means of establishing municipal liability under Section 1983.” Reply Brief for Petitioner 4, n. 3; see also Petition for Rehearing in No. 85-3314 (CA6), p. 1. However, at each stage in the proceedings below, petitioner contested any finding of liability on this ground, with objections of varying specificity. It opposed the District Court’s jury instructions on this issue, Tr. 4-369; claimed in its judgment notwithstanding verdict motion that there was “no evidence of a . . . policy or practice on the part of the City . . . [of] den[ying] medical treatment to prisoners,” Motion for Judgment Notwithstanding Verdict in No. C80-18-A (ND Ohio), p. 1; and argued to the Court of Appeals that there was no basis for finding a policy of denying medical treatment to prisoners in this case. See Brief for Appellant in No. 85-3314 (CA6), pp. 26-29. Indeed, petitioner specifically contended that the Sixth Circuit precedents that permitted inadequate training to be a basis for municipal liability on facts similar to these, see n. 3, supra, were in conflict with our decision in Tuttle. Brief for Appellant in No. 85-3314 (CA6), p. 29. These various presentations of the issues below might have been so inexact that we would have denied certiorari had this matter been brought to our attention at the appropriate stage in the proceedings. But they were at least adequate to yield a decision by the Sixth Circuit on the questions presented for our review now.

Here the Sixth Circuit held that where a plaintiff proves that a municipality, acting recklessly, intentionally, or with gross negligence, has failed to train its police force — resulting in a deprivation of constitutional rights that was “substantially certain to result”— § 1983 permits that municipality to be held liable for its actions. Petitioner’s petition for cer-tiorari challenged the soundness of that conclusion, and respondent did not inform us prior to the time that review was granted that petitioner had arguably conceded this point below. Consequently, we will not abstain from addressing the question before us.

Ill

In Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), we decided that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under §1983. Id., at 694-695. “It is only when the ‘execution of the government’s policy or custom . . . inflicts the injury’ that the municipality may be held liable under § 1983.” Springfield v. Kibbe, 480 U. S. 257, 267 (1987) (O’Connor, J., dissenting) (quoting Monell, supra, at 694).

Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. The inquiry is a difficult one; one that has left this Court deeply divided in a series of cases that have followed Monell; one that is the principal focus of our decision again today.

A

Based on the difficulty that this Court has had defining the contours of municipal liability in these circumstances, petitioner urges us to adopt the rule that a municipality can be found liable under § 1983 only where “the policy in question [is] itself unconstitutional.” Brief for Petitioner 15. Whether such a rule is a valid construction of § 1983 is a question the Court has left unresolved. See, e. g., St. Louis v. Praprotnik, supra, at 147 (Brennan, J., concurring in judgment); Oklahoma City v. Tuttle, supra, at 824, n. 7. Under such an approach, the outcome here would be rather clear: we would have to reverse and remand the case with instructions that judgment be entered for petitioner. There can be little doubt that on its face the city’s policy regarding medical treatment for detainees is constitutional. The policy states that the city jailer “shall . . . have [a person needing medical care] taken to a hospital for medical treatment, with permission of his supervisor . . . App. 33. It is difficult to see what constitutional guarantees are violated by such a policy.

Nor, without more, would a city automatically be liable under § 1983 if one of its employees happened to apply the policy in an unconstitutional manner, for liability would then rest on respondeat superior. The claim in this case, however, is that if a concededly valid policy is unconstitutionally applied by a municipal eihployee, the city is liable if the employee has not been adequately trained and the constitutional wrong has been caused by that failure to train. For reasons explained below, we conclude, as have all the Courts of Appeáls that have addressed this issue, that there are limited circumstances in which an allegation of a “failure to train” can be the basis for liability under § 1983. Thus, we reject petitioner’s contention that only unconstitutional policies are actionable under the statute.

B

Though we agree with the court below that a city can be liable under § 1983 for inadequate training of its employees, we cannot agree that the District Court’s jury instructions on this issue were proper, for we conclude that the Court of Appeals provided an overly broad rule for when a municipality can be held liable under the “failure to train” theory. Unlike the question whether a municipality’s failure to train employees can ever be a basis for § 1983 liability — on which the Courts of Appeals have all agreed, see n. 6, supra,— there is substantial division among the lower courts as to what degree of fault must be evidenced by the municipality’s inaction before liability will be permitted. We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. This rule is most consistent with our admonition in Monell, 436 U. S., at 694, and Polk County v. Dodson, 454 U. S. 312, 326 (1981), that a municipality can be liable under § 1983 only where its policies are the “moving force [behind] the constitutional violation.” Only where a municipality’s failure to train its employees in a relevant respect evidences a “deliberate indifference” to the rights of its inhabitants can such a shortcoming be properly thought of as a city “policy or custom” that is actionable under § 1983. As Justice Brennan’s opinion in Pembaur v. Cincinnati, 475 U. S. 469, 483-484 (1986) (plurality) put it: “[MJunicipal liability under §1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives” by city policymakers. See also Oklahoma City v. Tuttle, 471 U. S., at 823 (opinion of Rehn-QUIST, J.). Only where a failure to train reflects a “deliberate” or “conscious” choice by a municipality — a “policy” as defined by our prior cases — can a city be liable for such a failure under § 1983.

Monell’s rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible. That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent “city policy.” It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.

In resolving the issue of a city’s liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from factors other than a faulty training program. See Springfield v. Kibbe, 480 U. S., at 268 (O’Con-nor, J., dissenting); Oklahoma City v. Tuttle, supra, at 821 (opinion of Rehnquist, J.). It may be, for example, that an otherwise sound program has occasionally been negligently administered. Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable.

Moreover, for liability to attach in this circumstance the identified deficiency in a city’s training program must be closely related to the ultimate injury. Thus in the case at hand, respondent must still prove that the deficiency in training actually caused the police officers’ indifference to her medical needs. Would the injury have been avoided had the employee been trained under a program that was not deficient in the identified respect? Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the factfinder, particularly since matters of judgment may be involved, and since officers who are well trained are not free from error and perhaps might react very much like the untrained officer in similar circumstances. But judge and jury, doing their respective jobs, will be adequate to the task.

To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983. In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city “could have done” to prevent the unfortunate incident. See Oklahoma City v. Tuttle, 471 U. S., at 823 (opinion of Rehn-QUIST, J.). Thus, permitting cases against cities for their “failure to train” employees to go forward under § 1983 on a lesser standard of fault would result in de facto respondeat superior liability on municipalities —a result we rejected in Monell, 436 U. S., at 693-694. It would also engage the federal courts in an endless exercise of second-guessing municipal employee-training programs. This is an exercise we believe the federal courts are ill suited to undertake, as well as one that would implicate serious questions of federalism. Cf. Rizzo v. Goode, 423 U. S. 362, 378-380 (1976).

Consequently, while claims such as respondent’s — alleging that the city's failure to provide training to municipal employees resulted in the constitutional deprivation she suffered— are cognizable under § 1983, they can only yield liability against a municipality where that city’s failure to train reflects deliberate indifference to the constitutional rights of its inhabitants.

IV

The final question here is whether this case should be remanded for a new trial, or whether, as petitioner suggests, we should conclude that there are no possible grounds on which respondent can prevail. See Tr. of Oral Arg. 57-58. It is true that the evidence in the record now does not meet the standard of § 1983 liability we have set forth above. But, the standard of proof the District Court ultimately imposed on respondent (which was consistent with Sixth Circuit precedent) was a lesser one than the one we adopt today, see Tr. 4-389 — 4-390. Whether respondent should have an opportunity to prove her case under the “deliberate indifference” rule we have adopted is a matter for the Court of Appeals to deal with on remand.

V

Consequently, for the reasons given above, we vacate the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.

It is so ordered.

Justice Brennan,

concurring.

The Court’s opinion, which I join, makes clear that the Court of Appeals is free to remand this case for a new trial.

Justice O’Connor,

with whom Justice Scalia and Justice Kennedy join, concurring in part and dissenting in part.

I join Parts I and II and all of Part III of the Court’s opinion except footnote 11, see ante, at 390, n. 11. I thus agree that where municipal policymakers are confronted with an obvious need to train city personnel to avoid the violation of constitutional rights and they are deliberately indifferent to that need, the lack of necessary training may be appropriately considered a city “policy” subjecting the city itself to liability under our decision in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). As the Court observes, “[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality — a ‘policy’ as defined by our prior cases — can a city be liable for such a failure under [42 U. S. C.] § 1983.” Ante, at 389. I further agree that a § 1983 plaintiff pressing a “failure to train” claim must prove that the lack of training was the “cause” of the constitutional injury at issue and that this entails more than simply showing “but for” causation. Ante, at 392. Lesser requirements of fault and causation in this context would “open municipalities to unprecedented liability under § 1983,” ante, at 391, and would pose serious federalism concerns. Ante, at 392.

My single point of disagreement with the majority is thus a small one. Because I believe, as the majority strongly hints, see ibid., that respondent has not and could not satisfy the fault and causation requirements we adopt today, I think it unnecessary to remand this case to the Court of Appeals for further proceedings. This case comes to us after a full trial during which respondent vigorously pursued numerous theories of municipal liability including an allegation that the city had a “custom” of not providing medical care to detainees suffering from emotional illnesses. Respondent thus had every opportunity and incentive to adduce the type of proof necessary to satisfy the deliberate indifference standard we adopt today. Rather than remand in this context, I would apply the deliberate indifference standard to the facts of this case. After undertaking that analysis below, I conclude that there is no evidence in the record indicating that the city of Canton has been deliberately indifferent to the constitutional rights of pretrial detainees.

I

In Monell, the Court held that municipal liability can be imposed under § 1983 only where the municipality, as an entity, can be said to be “responsible” for a constitutional violation committed by one of its employees. “[T]he touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution.” 436 U. S., at 690. The Court found that the language of § 1983, and rejection of the “Sherman Amendment” by the 42d Congress, were both strong indicators that the framers of the Civil Rights Act of 1871 did not intend that municipal governments be held vicariously liable for the constitutional torts of their employees. Thus a § 1983 plaintiff seeking to attach liability to the city for the acts of one of its employees may not rest on the employment relationship alone; both fault and causation as to the acts or omissions of the city itself must be proved. The Court reaffirms these requirements today.

Where, as here, a claim of municipal liability is predicated upon a failure to act, the requisite degree of fault must be shown by proof of a background of events and circumstances which establish that the “policy of inaction” is the functional equivalent of a decision by the city itself to violate the Constitution. Without some form of notice to the city, and the opportunity to conform to constitutional dictates both what it does and what it chooses not to do, the failure to train theory of liability could completely engulf Monell, imposing liability without regard to fault. Moreover, absent a requirement that the lack of training at issue bear a very close causal connection to the violation of constitutional rights, the failure to train theory of municipal liability could impose “prophylactic” duties on municipal governments only remotely connected to underlying constitutional requirements themselves.

Such results would be directly contrary to the intent of the drafters of § 1983. The central vice of the Sherman Amendment, as noted by the Court’s opinion in Monell, was that it “impose[d] a species of vicarious liability on municipalities since it could be construed to impose liability even if the municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it.” 436 U. S., at 692, n. 57 (emphasis added). Moreover, as noted in Monell, the authors of § 1 of the Ku Klux Act did not intend to create any new rights or duties beyond those contained in the Constitution. Id., at 684-685. Thus, § 1 was referred to as “reenacting the Constitution.” Cong. Globe, 42d Cong., 1st Sess., 569 (1871) (Rep. Edmunds). Representative Bingham, the author of § 1 of the Fourteenth Amendment, saw the purpose of § 1983 as “the enforcement ... of the Constitution on behalf of every individual citizen of the Republic ... to the extent of the rights guaranteed to him by the Constitution.” Id., at App. 81. See also Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 617 (1979) (“[Section] 1 of the Civil Rights Act of 1871 did not provide for any substantive rights — equal or otherwise. As introduced and enacted, it served only to insure that an individual had a cause of action for violations of the Constitution”). Thus § 1983 is not a “federal good government act” for municipalities. Rather it creates a federal cause of action against persons, including municipalities, who deprive citizens of the United States of their constitutional rights.

Sensitive to these concerns, the Court’s opinion correctly requires a high degree of fault on the part of city officials before an omission that is not in itself unconstitutional can support liability as a municipal policy under Monell. As the Court indicates, “it may happen that . . . the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Ante, at 390. Where a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied. Only then can it be said that the municipality has made “ ‘a deliberate choice to follow a course of action . . . from among various alternatives.’” Ante, at 389, quoting Pembaur v. Cincinnati, 475 U. S. 469, 483-484 (1986).

In my view, it could be shown that the need for training was obvious in one of two ways. First, a municipality could fail to train its employees concerning a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face. As the majority notes, see ante, at 390, n. 10, the constitutional limitations established by this Court on the use of deadly force by police officers present one such situation. The constitutional duty of the individual officer is clear, and it is equally clear that failure to inform city personnel of that duty will create an extremely high risk that constitutional violations will ensue.

The claim in this ease — that police officers were inadequately trained in diagnosing the symptoms of emotional illness-falls far short of the kind of “obvious” need for training that would support a finding of deliberate indifference to constitutional rights on the part of the city. As the Court’s opinion observes, ante, at 388-389, n. 8, this Court has not yet addressed the precise nature of the obligations that the Due Process Clause places upon the police to seek medical care for pretrial detainees who have been physically injured while being apprehended by the police. See Revere v. Massachusetts General Hospital, 463 U. S. 239, 246 (1983) (Rehnquist, J., concurring); There are thus no clear constitutional guideposts for municipalities in this area, and the diagnosis of mental illness is not one of the “usual and recurring situations with which [the police] must deal.” Ante, at 391. The lack of training at issue here is not the kind of omission that can be characterized, in and of itself, as a “deliberate indifference” to constitutional rights.

Second, I think municipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion. In such cases, the need for training may not be obvious from the outset, but a pattern of constitutional violations could put the municipality on notice that its officers confront the particular situation on a regular basis, and that they often react in a manner contrary to constitutional requirements. The lower courts that have applied the “deliberate indifference” standard we adopt today have required a showing of a pattern of violations from which a kind of “tacit authorization” by city policymakers can be inferred. See, e. g., Fiacco v. Rensselaer, 783 F. 2d 319, 327 (CA2 1986) (multiple incidents required for finding of deliberate indifference); Patzner v. Burkett, 779 F. 2d 1363, 1367 (CA8 1985) (“[A] municipality may be liable if it had notice of prior misbehavior by its officers and failed to take remedial steps amounting to deliberate indifference to the offensive acts”); Languirand v. Hayden, 717 F. 2d 220, 227-228 (CA5 1983) (municipal liability for failure to train requires “evidence at least of a pattern of similar incidents in which citizens were injured or endangered”); Wellington v. Daniels, 717 F. 2d 932, 936 (CA4 1983) (“[A] failure to supervise gives rise to § 1983 liability, however, only in those situations where there is a history of widespread abuse. Only then may knowledge be imputed to the supervisory personnel”).

The Court’s opinion recognizes this requirement, see ante, at 390, and n. 10, but declines to evaluate the evidence presented in this case in light of the new legal standard. Ante, at 392. From the outset of this litigation, respondent has pressed a claim that the city of Canton had a custom of denying medical care to pretrial detainees with emotional disorders. See Amended Complaint ¶ 28, App. 27. Indeed, up to and including oral argument before this Court, counsel for respondent continued to assert that respondent was attempting to hinge municipal liability upon “both a custom of denying medical care to a certain class of prisoners, and a failure to train police that led to this particular violation.” Tr. of Oral Arg. 37-38. At the time respondent filed her complaint in 1980, it was clear that proof of the existence of a custom entailed a showing of “practices ... so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Adickes v. S. H. Kress & Co., 398 U. S. 144, 168 (1970); see also Garner v. Memphis Police Department, 600 F. 2d 52, 54-55, and n. 4 (CA6 1979) (discussing proof of custom in light of Monell).

Whatever the prevailing standard at the time concerning liability for failure to train, respondent thus had every incentive to adduce proof at trial of a pattern of violations to support her claim that the city had an unwritten custom of denying medical care to emotionally ill detainees. In fact, respondent presented no testimony from any witness indicating that there had been past incidents of “deliberate indifference” to the medical needs of emotionally disturbed detainees or that any other circumstance had put the city on actual or constructive notice of a need for additional training in this regard. At trial, David Maser, who was Chief of Police of the city of Canton from 1971 to 1980, testified without contradiction that during his tenure he received no complaints that detainees in the Canton jails were not being accorded proper medical treatment. Tr. 4-347 — 4-348. Former Officer Cherry, who had served as a jailer for the Canton Police Department, indicated that he had never had to seek medical treatment for persons who were emotionally upset at the prospect of arrest, because they usually calmed down when a member of the department spoke with them or one of their family members arrived. Id., at 4-83 — 4-84. There is quite simply nothing in this record to indicate that the city of Canton had any reason to suspect that failing to provide this kind of training would lead to injuries of any kind, let alone violations of the Due Process Clause. None of the Courts of Appeals that already apply the standard we adopt today would allow respondent to take her claim to a jury based on the facts she adduced at trial. See Patzner v. Burkett, supra, at 1367 (summary judgment proper under “deliberate indifference” standard where evidence of only single incident adduced); Languirand v. Hayden, supra, at 229 (reversing jury verdict rendered under failure to train theory where there was no evidence of prior incidents to support a finding that municipal policymakers were “consciously indifferent” to constitutional rights); Wellington v. Daniels, supra, at 937 (affirming judgment notwithstanding verdict for municipality under “deliberate indifference” standard where evidence of only a single incident was presented at trial); cf. Fiacco v. Rensselaer, supra, at 328-332 (finding evidence of “deliberate indifference” sufficient to support jury verdict where a pattern of similar violations was shown at trial).

Allowing an inadequate training claim such as this one to go to the jury based upon a single incident would only invite jury nullification of Monell. “To infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell.” Oklahoma City v. Tuttle, 471 U. S. 808, 831 (1985) (Brennan, J., concurring in part and concurring in judgment). As the authors of the Ku Klux Act themselves realized, the resources of local government are not inexhaustible. The grave step of shifting those resources to particular areas where constitutional violations are likely to result through the deterrent power of § 1983 should certainly not be taken on the basis of an isolated incident. If § 1983 and the Constitution require the city of Canton to provide detailed medical and psychological training to its police officers, or to station paramedics at its jails, other city services will necessarily suffer, including those with far more direct implications for the protection of constitutional rights. Because respondent’s evidence falls far short of establishing the high degree of fault on the part of the city required by our decision today, and because there is no indication that respondent could produce any new proof in this regard, I would reverse the judgment of the Court of Appeals and order entry of judgment for the city.

       Title 42 U. S. C. § 1983 provides, in relevant part, that:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...”

       The city regulation in question provides that a police officer assigned to act as “jailer” at the city police station
      “shall, when a prisoner is found to be unconscious or semi-unconscious, or when he or she is unable to explain his or her condition, or who complains of being ill, have such person taken to a hospital for medical treatment, with permission of his supervisor before admitting the person to City Jail.” App. 33.

       In upholding Mrs. Harris’ “failure to train” claim, the Sixth Circuit relied on two of its previous decisions which had approved such a theory of municipal liability under § 1983. See Rymer v. Davis, 754 F. 2d 198, vacated and remanded sicb nom. Shepherdsville v. Rhymer, 473 U. S. 901, reinstated, 775 F. 2d 756, 757 (1985); Hays v. Jefferson County, 668 F. 2d 869, 874 (1982).

       See, e. g., St. Louis v. Praprotnik, 485 U. S. 112 (1988); Springfield v. Kibbe, 480 U. S. 257 (1987); Los Angeles v. Heller, 475 U. S. 796 (1986); Oklahoma City v. Tuttle, 471 U. S. 808 (1985).

       In this Court, in addition to suggesting that the city’s failure to train its officers amounted to a “policy” that resulted in the denial of medical care to detainees, respondent also contended the city had a “custom” of denying medical care to those detainees suffering from emotional or mental ailments. See Brief for Respondent 31-32; Tr. of Oral Arg. 38-39. As respondent described it in her brief, and at argument, this claim of an unconstitutional “custom” appears to be little more than a restatement of her “failure-to-train as policy” claim. See ibid.

      However, to the extent that this claim poses a distinct basis for the city’s liability under § 1983, we decline to determine whether respondent’s contention that such a “custom” existed is an alternative ground for affirmance. The “custom” claim was not passed on by the Court of Appeals —nor does it appear to have been presented to that court as a distinct ground for its decision. See Brief of Appellee in No. 85-3314 (CA6), pp. 4-9, 11. Thus, we will not consider it here.

       In addition to the Sixth Circuit decisions discussed in n. 3, supra, most of the other Courts of Appeals have held that a failure to train can create liability under §1983. See, e. g., Spell v. McDaniel, 824 F. 2d 1380, 1389-1391 (CA4 1987); Haynesworth v. Miller, 261 U. S. App. D. C. 66, 80-83, 820 F. 2d 1245, 1259-1262 (1987); Warren v. Lincoln, 816 F. 2d 1254, 1262-1263 (CA8 1987); Bergquist v. County of Cochise, 806 F. 2d 1364, 1369-1370 (CA9 1986); Wierstak v. Heffernan, 789 F. 2d 968, 974 (CA1 1986); Fiacco v. Rensselaer, 783 F. 2d 319, 326-327 (CA2 1986); Gilmere v. Atlanta, 774 F. 2d 1495, 1503-1504 (CA11 1985) (en banc); Rock v. McCoy, 763 F. 2d 394, 397-398 (CA10 1985); Languirand v. Hayden, 717 F. 2d 220, 227-228 (CA5 1983). Two other Courts of Appeals have stopped short of expressly embracing this rule, and have instead only implicitly endorsed it. See, e. g., Colburn v. Upper Darby Township, 838 F. 2d 663, 672-673 (CA3 1988); Lenard v. Argento, 699 F. 2d 874, 885-887 (CA7 1983).
      In addition, six current Members of this Court have joined opinions in the past that have (at least implicitly) endorsed this theory of liability under § 1983. See Oklahoma City v. Tuttle, supra, at 829-831 (Brennan, J., joined by Marshall and Blackmun, JJ., concurring in part and concurring in judgment); Springfield v. Kibbe, supra, at 268-270 (O’Con-nor, J., joined by Rehnquist, C. J., and Powell and White, JJ., dissenting).

       Some courts have held that a showing of “gross negligence” in a city’s failure to train its employees is adequate to make out a claim under § 1983. See, e. g., Bergquist v. County of Cochise, supra, at 1370; Herrera v. Valentine, 653 F. 2d 1220, 1224 (CA8 1981). But the more common rule is that a city must exhibit “deliberate indifference” towards the constitutional rights of persons in its domain before a § 1983 action for “failure to train” is permissible. See, e. g., Fiacco v. Rensselaer, supra, at 326; Patzner v. Burkett, 779 F. 2d 1363, 1367 (CA8 1985); Wellington v. Daniels, 717 F. 2d 932, 936 (CA4 1983); Languirand v. Hayden, supra, at 227.

       The “deliberate indifference” standard we adopt for § 1983 “failure to train” claims does not turn upon the degree of fault (if any) that a plaintiff must show to make out an underlying claim of a constitutional violation. For example, this Court has never determined what degree of culpability must be shown before the particular constitutional deprivation asserted in this case — a denial of the due process right to medical care while in detention — is established. Indeed, in Revere v. Massachusetts General Hospital, 463 U. S. 239, 243-245 (1983), we reserved decision on the question whether something less than the Eighth Amendment’s “deliberate indifference” test may be applicable in claims by detainees asserting violations of their due process right to medical care while in custody.
      We need not resolve here the question left open in Revere for two reasons. First, petitioner has conceded that, as the case comes to us, we must assume that respondent’s constitutional right to receive medical care was denied by city employees — whatever the nature of that right might be. See Tr. of Oral Arg. 8-9. Second, the proper standard for determining when a municipality will be liable under § 1983 for constitutional wrongs does not turn on any underlying culpability test that determines when such wrongs have occurred. Cf. Brief for Respondent 27.

       The plurality opinion in Tuttle explained why this must be so:
      “Obviously, if one retreats far enough from a constitutional violation some municipal ‘policy’ can be identified behind almost any . . . harm inflicted by a municipal official; for example, [a police officer] would never have killed Tuttle if Oklahoma City did not have a ‘policy’ of establishing a police force. But Monell must be taken to require proof of a city policy different in kind from this latter example before a claim can be sent to a jury on the theory that a particular violation was ‘caused’ by the municipal ‘policy.’” 471 U. S., at 823. Cf. also id., at 833, n. 9 (opinion of Brennan, J.).

       For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner, 471 U. S. 1 (1985), can be said to be “so obvious,” that failure to do so could properly be characterized as “deliberate indifference” to constitutional rights.
      It could also be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are “deliberately indifferent” to the need.

       The record indicates that city did train its officers and that its training included first-aid instruction. See App. to Pet. for Cert. 4a. Petitioner argues that it could not have been obvious to the city that such training was insufficient to administer the written policy, which was itself constitutional. This is a question to be resolved on remand. See Part IV, infra.

       Respondent conceded as much at argument. See Tr. of Oral Arg. 50-51; cf. also Oklahoma City v. Tuttle, supra, at 831 (opinion of Brennan, J.).


source: Caselaw Access Project

author:
Justice White
      Justice Blackmun,

license: Public Domain

text:
    DUGGER, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al. v. ADAMS
    No. 87-121.
    Argued November 1, 1988
    Decided February 28, 1989

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan, Marshall, and Stevens, JJ., joined, post, p. 412.

      Margene A. Roper, Assistant Attorney General of Florida, argued the cause for petitioners. With her on the brief was Robert A. Butterwortk, Attorney General.

      Ronald J. Tabal: argued the cause for respondent. With him on the brief were Larry Helm Spalding and Mark Olive.

         Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.

        Michael Mello and Susan Apel filed a brief for the National Legal Aid and Defender Association et al. as amici curiae.

   Justice White

delivered the opinion of the Court.

In this case we decide whether our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985), provided cause for respondent’s failure to challenge the trial court’s instructions in accordance with state procedures.

Respondent Aubrey Dennis Adams, Jr., was charged with the first-degree murder of 8-year-old Trisa Gail Thornley, and the State sought to impose the death penalty. At the start of jury selection for respondent’s trial, the trial judge undertook to instruct the prospective jurors on their “advisory” role under Florida law. The judge informed the initial panel of prospective jurors:

“The Court is not bound by your recommendation. The ultimate responsibility for what this man gets is not on your shoulders. It’s on my shoulders. You are merely an advisory group to me in Phase Two. You can come back and say, Judge, we think you ought to give the man life. I can say, I disregard the recommendation of the Jury and I give him death. You can come back and say, Judge, we think he ought to be put to death. I can say, I disregard your recommendation and give him life. So that this conscience part of it as to whether or not you’re going to put the man to death or not, that is not your decision to make. That’s only my decision to make and it has to be on my conscience. It cannot be on yours.” App. 19-20.

The judge had intended to give this explanation to the entire venire before beginning the selection process but forgot to do so, and so he gave a similar explanation each time new prospective jurors were seated. As a result, each of the jurors ultimately selected heard the explanation at least once, and several heard it a number of times. In addition, the judge interrupted counsel’s voir dire on two occasions to repeat that the court, not the jury, was responsible for sentencing, and again instructed the jury to that effect before it began its deliberations. Defense counsel did not object at any point to these instructions.

On October 20, 1978, the jury found respondent guilty of first-degree murder. After a separate sentencing hearing, the jury recommended that he be sentenced to death, and the trial judge imposed a death sentence. The Florida Supreme Court affirmed respondent’s conviction and sentence on direct appeal, Adams v. State, 412 So. 2d 850 (1982), and this Court denied certiorari, 459 U. S. 882 (1982). Respondent did not allege as error, on either state or federal grounds, the trial judge’s instructions to the jurors on their responsibility for the sentence they would recommend.

In September 1984, the Florida Supreme Court affirmed the denial of respondent’s first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Adams v. State, 456 So. 2d 888. Again, respondent did not challenge the trial judge’s statements to the jurors on their responsibility for the death sentence. Respondent next filed his first federal habeas petition in District Court; once again he did not challenge the trial judge’s instructions. The District Court denied his habeas petition on September 18, 1984, Adams v. Wainwright, No. 84-170—Civ-Oc-16 (MD Fla.), the Eleventh Circuit affirmed, 764 F. 2d 1356 (1985), and this Court denied certiorari, 474 U. S. 1073 (1986).

On June 11, 1985, Caldwell v. Mississippi, 472 U. S. 320, was decided. The Court there held that remarks by the prosecutor in a capital case that misinformed the jury as to the role of appellate review violated the Eighth Amendment. Id., at 336 (plurality opinion); id., at 341-342 (O’Connor, J., concurring in part and concurring in judgment). Based on Caldwell, respondent filed a second motion for postconviction relief under Florida Rule 3.850, challenging for the first time the trial judge’s statements to the jurors that they were not responsible for the sentence they recommended and arguing that the judge’s instructions violated the Eighth Amendment by misinforming the jury of its role under Florida law. According to respondent, although the Florida death penalty statute provided that the jury’s recommendation was only advisory, the Florida Supreme Court had held that a trial judge could only override the jury’s verdict if the facts were “so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So. 2d 908, 910 (1975) (per curiam). Since the trial judge in this case told the jurors that the sentencing responsibility was solely his and failed to tell them that he could override their verdict only under limited circumstances, respondent argued, the judge misled the jury in violation of Caldwell. The Florida Supreme Court refused to address respondent’s argument on the merits, however, because respondent had failed to raise the argument on direct appeal. Adams v. State, 484 So. 2d 1216, 1217, cert. denied, 475 U. S. 1103 (1986).

The Caldwell claim was then raised in respondent’s second federal habeas petition. The District Court held that the claim was procedurally barred, and that, alternatively, respondent’s Caldwell claim was meritless. Adams v. Wainwright, No. 86-64—Civ-Oc-16 (MD Fla., Mar. 7, 1986), p. 9, App. to Pet. for Cert. A-43, A-56 — A-60. The Eleventh Circuit reversed. Adams v. Wainwright, 804 F. 2d 1526 (1986), modified on denial of rehearing, 816 F. 2d 1493 (1987). The Court of Appeals held that respondent’s Caldwell claim “was so novel at the time of [his] trial in October 1978 and his sentencing and appeal in early 1979 that its legal basis was not reasonably available at that time”; therefore, he had established cause for his procedural default. 816 F. 2d, at 1498. The court proceeded to address the merits of respondent’s Caldwell claim, concluding that the trial judge’s instructions violated the Eighth Amendment. 804 F. 2d, at 1532-1533.

We granted certiorari to review the Eleventh Circuit’s holding that Caldwell provides cause for respondent’s procedural default, 485 U. S. 933 (1988), and we now reverse.

In Wainwright v. Sykes, 433 U. S. 72, 87 (1977), this Court required that habeas petitioners show “cause” and “prejudice” before federal courts will review claims that the state courts have found procedurally defaulted. We have reaffirmed this requirement on several occasions. See Murray v. Carrier, 477 U. S. 478, 494-495 (1986); Engle v. Isaac, 456 U. S. 107, 129 (1982). We have, however, “left open ‘for resolution in future decisions the precise definition’ ” of cause .and prejudice. Amadeo v. Zant, 486 U. S. 214, 221 (1988) '(quoting Sykes, supra, at 87). See also Reed v. Ross, 468 U. S. 1, 13 (1984).

Reed v. Ross held that one way a petitioner can establish cause is by showing that “a constitutional claim is so novel that its legal basis is not reasonably available to counsel.” Id., at 16. The Eleventh Circuit, relying on Reed, held in this case that “Eighth Amendment jurisprudence at the time of [respondent’s] procedural default did not provide a reasonable basis” on which to raise a Caldwell claim. 816 F. 2d, at 1499. The Court of Appeals reviewed our prior cases and concluded that none of them indicated that statements such as the ones made by the trial judge here “implicated the Eighth Amendment prohibition against cruel and unusual punishment.” Ibid. The Court also noted that it could find no decisions by other courts suggesting that “this type of Eighth Amendment claim was being raised at that time.” Ibid.

We believe that the Eleventh Circuit failed to give sufficient weight to a critical fact that leads us to conclude, without passing on the Court of Appeals’ historical analysis, that Caldwell does not provide cause for respondent’s procedural default. As we have noted, the decision in “Caldwell is relevant only to certain types of comment — those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 477 U. S. 168, 184, n. 15 (1986). As respondent conceded at oral argument, if the challenged instructions accurately described the role of the jury under state law, there is no basis for a Caldwell claim. To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law. See, e. g., Tr. of Oral Arg. 29, 32, 33, and 36-37. Respondent therefore must be asserting in this case that the trial court’s remarks violated state law, and in finding a Caldwell violation in this case, the Court of Appeals must have concluded that the remarks in question were error under Florida law.

If respondent and the Court of Appeals are correct in this regard, respondent plainly had the basis for an objection and an argument on appeal that the instructions violated state law. See Pait v. State, 112 So. 2d 380, 383-384 (Fla. 1959) (holding that misinforming the jury of its role constitutes reversible error); Blackwell v. State, 79 So. 731, 735-736 (Fla. 1918) (same). Yet, despite the availability of this claim under state law, respondent did not object to the remarks at trial or challenge them on appeal. As a result, Florida law bars respondent from raising the issue in later state proceedings. See, e. g., Adams, 484 So. 2d, at 1217.

Respondent offers no excuse for his failure to challenge the remarks on state-law grounds, and we discern none that would amount to good cause in a federal habeas corpus proceeding. Had respondent objected at the time and asserted error under state law, and had the trial or appellate court sustained his objection, the error would have been corrected in the state system. Had his objection been overruled and that ruling sustained on appeal, we would very likely know that the instruction was an accurate reflection of state law. In either event, it is doubtful that the later decision in Caldwell would have provoked the filing of a second habeas corpus petition. In these circumstances, the fact that it turns out that the trial court’s remarks were objectionable on federal as well as state grounds is not good cause for his failure to follow Florida procedural rules.

Reed v. Ross is of no help to respondent. In that case, the -defendant failed to challenge on appeal an instruction that was plainly valid under the settled law of the State. Six years later, it was held in Mullaney v. Wilbur, 421 U. S. 684 (1975), that such an instruction violated the Due Process Clause of the Federal Constitution. We held that there was a good cause for the procedural default because a challenge to the instruction was “so novel that its legal basis [was] not reasonably available to counsel.” 468 U. S., at 16. Hence, there was no reason for suspecting that defense counsel was flouting state procedures for tactical or other reasons. But here respondent claims that the court’s remarks were invalid under state law at the time; yet those remarks were not objected to nor were they challenged on appeal. Unlike Reed, the legal basis for a challenge was plainly available, and it would not be safe to assume that the failure to object was not for tactical or other reasons that will not excuse the default in a habeas corpus proceeding. Indeed, at the time of respondent’s trial there was some suggestion that comments such as those by the trial judge would incline the jury toward leniency rather than toward recommending a death sentence. See Dobbert v. Florida, 432 U. S. 282, 294, and n. 7 (1977). Furthermore, because in Reed the legal basis for the claim at issue was so lacking, it could not be said that adjudicating the claim in federal court would infringe on the interest of the state courts in enforcing their procedural rules. But here, as we have said, the State has every interest in having the defendant challenge a faulty instruction in a timely manner so that it can correct the misstatement, and that interest does not disappear when it is later held that the instruction violates the Federal Constitution if it erroneously describes the role of the jury under state law.

We agree with respondent and the Court of Appeals that the availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution. See 816 F. 2d, at 1499, n. 6. It is clear that “mere errors of state law are not the concern of this Court unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution.” Barclay v. Florida, 463 U. S. 939, 957-958 (1983) (plurality opinion) (citation omitted). But the issue in this case is not whether respondent could have obtained federal habeas relief at the time of his trial for the trial judge’s instructions. Rather, the issue is whether we should exercise our equitable power to overlook respondent’s state procedural default. Reed, 468 U. S., at 9.

Neither do we hold that whenever a defendant has any basis for challenging particular conduct as improper, a failure to preserve that claim under state procedural law bars any subsequently available claim arising out of the same conduct. Indeed, respondent here could have challenged the improper remarks by the trial judge at the time of his trial as a violation of due process. See Donnelly v. DeChristoforo, 416 U. S. 637 (1974). Rather, what is determinative in this case is that the ground for challenging the trial judge’s instructions — that they were objectionable under state law — was a necessary element of the subsequently available Caldwell claim. In such a case, the subsequently available federal claim does not excuse the procedural default.

The judgment of the Court of Appeals is therefore reversed.

It is so ordered.

Justice Blackmun,

with whom Justice Brennan, Justice Marshall, and Justice Stevens join, dissenting.

Although this Court repeatedly has ruled that the Eighth Amendment prohibits the arbitrary or capricious imposition of the death penalty, the Court today itself arbitrarily imposes procedural obstacles to thwart the vindication of what apparently is a meritorious Eighth Amendment claim.

In this case, the Eleventh Circuit determined that respondent Aubrey Dennis Adams was sentenced to death in violation of the Eighth Amendment, as interpreted in Caldwell v. Mississippi, 472 U. S. 320 (1985). This Court now reverses that determination, not because it finds the death sentence valid, but because respondent was late in presenting his claim to the Florida courts. In other words, this Court is sending a man to a presumptively unlawful execution because he or his lawyers did not raise his objection at what is felt to be the appropriate time for doing so.

I would understand, and accept, the Court’s decision if the federal courts lacked authority to remedy the unconstitutional death sentence. But, manifestly, that is not the case. In reversing the judgment of the Court of Appeals, the majority relegates to a footnote its discussion of established doctrines that, upon full consideration, might entitle respondent to an affirmance, not a reversal, of that judgment. Thus, the majority not only capriciously casts aside precedent to reinstate an unconstitutionally “unreliable” death sentence purely for procedural reasons, but also compounds that capriciousness by issuing an opinion in which decisive issues receive only dismissive consideration. Given this treatment of the case, it is worth reflecting for a moment on the special inappropriateness and cruelty of the impending execution.

h — t

There is no need to dwell upon the history of the Court’s decisions on whether a criminal defendant’s failure to comply with a rule of state procedure precludes review of his conviction or sentence in a subsequent federal habeas corpus proceeding. By now it is settled that an adequate and independent state procedural ground, which would have precluded direct review in this Court, bars habeas review unless the habeas petitioner can demonstrate “cause” for the procedural default and “prejudice” resulting from the alleged constitutional violation. Wainwright v. Sykes, 433 U. S. 72, 84, 87, 90-91 (1977).

Since Sykes, the Court has refined the “cause” and “prejudice” standard, see, e. g., Reed v. Ross, 468 U. S. 1 (1984); Engle v. Isaac, 456 U. S. 107 (1982), and also has held that habeas review of a defaulted claim is available, even absent “cause” for the default, if the failure to consider the claim would result in a “fundamental miscarriage of justice.” Smith v. Murray, 477 U. S. 527, 537-538 (1986); Murray v. Carrier, 477 U. S. 478, 495-496 (1986). In Smith, this Court applied the “fundamental miscarriage of justice” principle to an alleged sentencing error in a capital case. In an effort to equate review of convictions and sentences under this principle, the Court apparently settled upon the following standard: the habeas petitioner must make a “substantial” showing “that the alleged error undermined the accuracy of the guilt or sentencing determination.” 477 U. S., at 539. Even this narrow standard makes clear that the “fundamental miscarriage of justice” principle is applicable to allegations of capital sentencing errors.

Thus, under our precedents, the Court of Appeals was correct to review respondent’s procedurally defaulted Caldwell claim if any one of three conditions is met: (1) the Florida Supreme Court’s finding of procedural default was not an adequate and independent ground for its decision; (2) respondent can show cause for and prejudice from his default; or (3) the failure to review respondent’s claim would result in a fundamental miscarriage of justice. Yet the Court devotes but a single footnote at the end of its opinion to the first and third of these principles. Ante, at 410-412, n. 6.

The Court acknowledges, as it must, that it granted certio-rari to consider whether respondent had established “cause” for his procedural default. Ante, at 406. But this interest in the “cause” inquiry does not permit the Court to consign to second-class status the rest of the analysis necessary for determining whether the Court of Appeals properly considered the merits of respondent’s Caldwell claim. Indeed, once the other two principles receive the attention they deserve, it becomes evident that each provides an alternative basis for affirming the Court of Appeals’ judgment.

y — < i — t

The majority recognizes that a state court s reliance on a procedural bar rule is inadequate if that rule “has not been ‘consistently or regularly applied.’” Ante, at 410, n. 6, quoting Johnson v. Mississippi, 486 U. S. 578, 589 (1988). The majority, however, asserts that in respondent’s case the Florida Supreme Court’s reliance on procedural bar grounds was adequate under this standard. I must disagree.

When respondent raised his Caldtvell claim for the first time in his second postconviction motion under Rule 3.850 of the Florida Rules of Criminal Procedure, the Florida Supreme Court held this claim, among others, procedurally barred because respondent did not raise the claim in his direct appeal. See Adams v. State, 484 So. 2d 1216, 1217, cert. denied, 475 U. S. 1103 (1986). The court further found that presenting the Caldtvell claim in a successive Rule 3.850 proceeding was an abuse of the Rule. 484 So. 2d, at 1217. This decision issued on March 3, 1986.

Prior to that date, however, the Florida Supreme Court, in two Rule 3.850 cases, did not foreclose review of Caldtvell claims, notwithstanding the existence of similar procedural defaults. First, in Darden v. State, 475 So. 2d 217 (1985), which also involved a second Rule 3.850 motion, the Florida Supreme Court considered the merits of the Caldwell claim even though the prisoner there, like respondent here, failed to argue either on direct appeal or in his first Rule 3.850 motion that the jury was misled about its role in the capital sentencing process. See Darden v. State, 329 So. 2d 287 (1976) (direct appeal), cert. dism’d, 430 U. S. 704 (1977); Darden v. State, 372 So. 2d 437 (1979) (first Rule 3.850 motion). Indeed, in “choos[ing] to address” the merits of the defaulted Caldwell claim in Darden, the Florida Supreme Court explicitly rebuffed the State’s efforts to have the court reject the claim on the ground that its presentation constituted an abuse of the Rule 3.850 process. See 475 So. 2d, at 218.

Second, in Mann v. State, 482 So. 2d 1360 (1986), the Florida Supreme Court considered the merits of a Caldwell claim (among others), even though the claim was not raised on direct appeal. As the Eleventh Circuit noted, the Florida Supreme Court in Mann simply “chose not to enforce its own procedural default rule.” Mann v. Dugger, 844 F. 2d 1446, 1448, n. 4 (1988) (en banc), cert. pending, No. 87-2073. Thus, by the time that it decided Adams, the Florida Supreme Court had failed to apply the State’s procedural bar rules to at least two defaulted Caldwell claims.

Furthermore, in no case prior to Adams did the Florida Supreme Court plainly hold a Caldwell claim procedurally barred. Petitioners cite Middleton v. State, 465 So. 2d 1218, 1226 (1985), but it surely is questionable whether the reference to a procedural default in that case would satisfy the “plain statement” standard of Harris v. Reed, ante, p. 255. In any event, even counting Middleton as a case in which the Florida Supreme Court invoked a procedural bar rule to preclude review of a Caldwell claim, it is impossible to say, in light of Darden and Mann, that the decision in Adams was an application of “strictly or regularly followed” state procedural requirements. Barr v. City of Columbia, 378 U. S. 146, 149 (1964). Consequently, the state-law ground in Adams would not have foreclosed this Court’s consideration of the Caldwell claim had we chosen to exercise our certiorari jurisdiction on direct review, and, a fortiori, it does not preclude review of the Caldwell claim in this habeas proceeding. See Wainwright v. Sykes, 433 U. S. 72 (1977).

The majority’s reasons for discounting Darden and Mann are not persuasive. As to Darden, the majority observes that the Florida Supreme Court did not discuss the prisoner’s failure to raise his Caldwell claim on direct appeal, but rather mentioned only the failure to raise the Caldwell claim in a prior Rule 3.850 proceeding. But this observation misses the point. The fact remains that Darden on direct appeal did not raise his claim that the jury was misled about its role in sentencing him. See 329 So. 2d, at 288-291. Accordingly, Darden is a case in which the Florida Supreme Court did not bar review of a Caldwell claim, even though the claim was raised neither on direct appeal nor in the first Rule 3.850 proceeding. The treatment of the Caldwell claim in Darden is thus starkly inconsistent with the treatment of the Caldwell claim in Adams, despite the identical procedural posture of the two cases. For this reason alone, Darden demonstrates the inadequacy of the procedural bar ruling in Adams.

As to Mann, the majority notes that the court did not specifically mention the prisoner’s Caldwell claim. But again, the majority misses the point. In respondent’s case, too, the Flordia Supreme Court did not expressly mention the Caldwell claim. See 484 So. 2d, at 1217-1218. The issue here, however, is not whether the Florida Supreme Court in each case identified the claim by name, but whether it held the claim procedurally barred. In Mann, it did not; in Adams, it did. Thus, the inconsistent treatment of the Caldwell claims in Mann and Adams supports a finding of inadequacy here.

In my view, then, the majority’s attempts to distinguish Darden and Mann are clearly unavailing, and these two cases suffice to show that respondent’s procedural default does not constitute an adequate state ground barring review of his Caldwell claim. Moreover, decisions of the Florida Supreme Court handed down after Adams reinforce the conclusion that that court has been inconsistent in applying its procedural bar rules to Caldwell claims. In Combs v. State, 525 So. 2d 853 (1988), the court did not invoke procedural default as a basis for decision, notwithstanding the prisoner’s failure to present his Caldwell claim on direct appeal. See Combs v. State, 403 So. 2d 418, 420-421 (1981), cert. denied, 456 U. S. 984 (1982). Rather, the court affirmatively chose to address the merits of the Caldwell claim, largely because it wanted to announce its view that Caldwell is inapplicable to Florida capital cases.

The Florida Supreme Court also did not rely on procedural bar grounds in Daugherty v. State, 533 So. 2d 287, cert. denied, 488 U. S. 959 (1988), even though that case involved a second Rule 3.850 motion and the convict there, like respondent here, did not raise his Caldwell claim either on direct review or in his first Rule 3.850 motion. See Daugherty v. State, 419 So. 2d 1067 (1982) (direct appeal), cert. denied, 459 U. S. 1228 (1983); Daugherty v. State, 505 So. 2d 1323 (first Rule 3.850 motion), cert. denied, 484 U. S. 891 (1987). Rather, in Daugherty, the court rested its rejection of the Caldwell claim solely on the ground that in Combs the court had “determined that Caldwell is inapplicable in Florida.” 533 So. 2d, at 288.

Most recently, in Glock v. Dugger, 537 So. 2d 99 (1989), the Florida Supreme Court did not hold a Caldwell claim procedurally barred, even though the claim was not raised on direct appeal. Puiatti v. State, 495 So. 2d 128, 132 (Fla. 1986). In sum, Combs, Daugherty, and Glock convincingly demonstrate that the Florida Supreme Court still does not strictly apply its procedural bar rules to Caldwell claims. Contrasting all five cases (Darden, Mann, Combs, Daugherty, and Glock) with Adams, one cannot seriously contend that the Florida Court has applied its procedural bar rules “evenhandedly to all similar claims.” Hathorn v. Lovorn, 457 U. S. 255, 263 (1982). Thus, once the adequacy issue is fully considered, there is no escaping the conclusion that the Florida Supreme Court’s rejection of respondent’s Caldwell claim did not rest on an adequate state ground. Yet, in unseemly haste to reverse the Court of Appeals on the issue of “cause,” the majority treats the adequacy issue as an afterthought, although it is an analytically antecedent issue.

III

Even if, somehow, I could be convinced that the Florida Supreme Court’s reliance on respondent’s procedural default was “adequate,” within the meaning of this Court’s precedents, I would still conclude that the Court of Appeals properly reached the merits of respondent’s Caldwell claim. I have no quarrel with the majority’s determination that respondent cannot show “cause” for his procedural default. “That determination, however, does not end our inquiry.” Smith v. Murray, 477 U. S., at 537.

Rather, as the majority apparently recognizes, we must consider whether the failure to examine the merits of the Caldwell claim in this habeas action would result in a fundamental miscarriage of justice. The majority believes that no such injustice would occur. Again, I disagree.

Respondent’s Caldwell claim, see generally Brief for Respondent 25-49, rests on the following premises: Under Florida law, the judge at his trial was permitted to overturn the jury’s judgment on whether he should receive a life or a death sentence only upon a clear and convincing showing that the jury’s choice was erroneous. Notwithstanding this rule of Florida law, the trial judge repeatedly and insistently told the jurors that their sentencing vote was “strictly a recommendation and nothing more,” that he was “not bound to follow that recommendation,” and that he was “the sole determiner on whether or not [respondent] receives life or is put into the electric chair.” App. 28, 69, 78, 79. Furthermore, the judge drummed this misinformation into the jurors’ heads by repeatedly telling them that “the most important thing ... to remember” was the nonbinding nature of their recommendation and that the capital sentencing decision was not on their “conscience” but on his. Id., at 69-70, 77-78.

If (as the Court of Appeals held and we must assume) these repeated and insistent comments mischaracterized the jury’s role under state law, then the sentencing process in respondent’s case was so distorted as to render the sentence inherently suspect. The alleged error in this case was severe: the incorrect instructions may well have caused the jury to vote for a death sentence that it would not have returned had it been accurately instructed. See Caldwell v. Mississippi, 472 U. S., at 331-333. Jurors who erroneously believe that responsibility for the defendant’s death lies on someone else’s conscience may be more willing to vote for death “to ‘send a message’ of extreme disapproval for the defendant’s acts.” Id., at 331. Thus, it is plain that respondent has presented a “substantial claim that the alleged error undermined the accuracy of the . . . sentencing determination” at his trial. Smith v. Murray, 477 U. S., at 539. Indeed, the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined.

In this respect, the alleged sentencing error here is entirely unlike the one at issue in Smith itself. There, admission of particular testimony allegedly violated the Fifth and Eighth Amendments, and the question was whether its admission “pervert[ed] the jury’s deliberations” on issues relevant to its capital sentencing determination. 477 U. S., at 538. This case, in contrast, does not concern the inclusion or exclusion of particular evidence, but does concern a detailed and repeated explanation of the jury’s responsibility, or lack of it, in the sentencing process. The alleged error thus is global in scope: it necessarily pervades the entire sentencing process. Indeed, the alleged error in this case, if true, could not help but pervert the sentencing decision. Consequently, respondent’s Caldwell claim must fall within the scope of the “fundamental miscarriage of justice” exception to the Sykes “cause” and “prejudice” test, unless the Court today means to repudiate sub silentio its opinion in Smith.

In other words, respondent’s Caldwell claim is precisely the kind of claim that remains reviewable in a federal habeas action even though respondent cannot establish cause for his procedural default. See Smith, 477 U. S., at 537-539. In holding otherwise, the Court sends respondent to an execution that not only is presumptively unlawful, but is presumptively inaccurate as well. See Caldwell, 472 U. S., at 331. Nothing in the habeas corpus precedents of this Court calls for this consummately capricious result.

<1

Contrary to the result reached by the majority today, our precedents amply support the- Court of Appeals’ decision to consider whether respondent’s death sentence was unconstitutionally unreliable despite respondent’s failure to raise this constitutional issue in accordance with state procedures. It is not surprising, I suppose; that the Court misses the force of these precedents, since it confines two-thirds of the relevant inquiry to a single footnote at the end of its opinion.

If the Court can reach the question of “cause,” on which certiorari was granted, only by making a mockery of the requirement that state procedural bar rules be “applied] evenhandedly to all similar claims,” Hathorn v. Lovorn, 457 U. S., at 263, then the Court should dismiss the writ of certiorari as improvidently granted. Similarly, if the Court does not wish to undertake the task of applying the “fundamental miscarriage of justice” inquiry, then it should remand the case to the Court of Appeals for that purpose. But inasmuch as the Court has chosen to decide these issues, the conclusory treatment they receive does not suffice to discharge the Court’s responsibilities to respondent, for whom these issues are a matter of life or death. Indeed, I would have expected that when this Court reinstates a death sentence vacated by the judgment below (and does so purely for procedural reasons), it would be particularly careful to consider fully all issues necessary to its disposition of the case. To judge by footnote 6 of the Court’s opinion, this expectation was naive.

I dissent.

       Florida Stat. §921.141 (1985) provides in relevant part as follows:
      “(2) ADVISORY SENTENCE BY THE JURY.-After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters:
      “(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (5);
      “(b) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and
      “(c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.
      “(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH.-Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:
      “(a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and
      “(b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.”

       As aggravating circumstances, the trial judge found that the murder was committed while respondent was engaged in or attempting kidnaping and rape, was committed to avoid arrest, and was especially heinous, atrocious, or cruel. As mitigating circumstances, the trial judge found that respondent had no significant history of prior criminal activity, was under the influence of extreme emotional or mental disturbance at the time of the murder because he and his wife were getting a divorce, and was only 20 years of age.

       Shortly after the Eleventh Circuit’s decision in this case, the Tenth Circuit also held that Caldivell was sufficiently novel to provide cause for a procedural default. Dutton v. Brown, 812 F. 2d 593, 596 (en banc) (finding cause for procedural default because “[t]he law petitioner relies on did not become established until the Caldwell decision in 1985”), cert. denied, 484 U. S. 836 (1987). Previously, however, the Fifth Circuit had held in Moore v. Blackburn, 774 F. 2d 97 (1985) (alternative holding), cert. denied, 476 U. S. 1176 (1986), that the failure to raise a Caldwell claim in a prior habeas petition was an abuse of the writ, see 28 U. S. C. § 2254 Rule 9(b). According to the Court of Appeals, “[t]hat a competent attorney should have been aware of this claim is apparent from the Supreme Court’s Caldwell opinion.” 774 F. 2d, at 98.
      Although petitioners allege in their brief that respondent’s failure to raise a Caldwell claim in his first federal habeas petition constitutes an abuse of the writ, we need not address this contention given our resolution of the ease on procedural bar grounds.

       We do not decide whether in fact the jury as instructed in this case was misinformed of its role under Florida law. The petition for certiorari did not raise this issue, and the merit of respondent’s Caldwell claim is irrelevant to our disposition of the case.

       Both of these cases were cited in Caldwell v. Mississippi, 472 U. S. 320, 334, n. 5 (1985), as support for the decision in that case.

       Respondent asserts, as an alternative basis for upholding the judgment of the Court of Appeals, that the procedural bar on which the Florida Supreme Court relied is not “adequate” — that is, it has not been “consistently or regularly applied." Johnson v. Mississippi, 486 U. S. 578, 589 (1988). The Eleventh Circuit stated that “[i]t is doubtful. . . that an adequate and independent state-law ground is present in this case,” 816 F. 2d 1493, 1497 (1987), but went on to find that respondent had established cause and prejudice for his default.
      First, respondent argues that under Florida law, claims based on major changes in constitutional law that occur after a defendant’s direct appeal are cognizable in a Rule 3.850 proceeding. Respondent contends that, in the words of the Eleventh Circuit, his “Caldwell claim is the very type of claim for which Florida created the Rule 3.850 procedure.” Ibid. But, given our conclusion that Caldwell does not excuse respondent’s procedural default, we can hardly fault the Florida Supreme Court for reaching a similar conclusion under its own procedural rules.
      Second, respondent asserts, and the dissent agrees, that the Florida Supreme Court has failed to apply its procedural rule consistently and regularly because it has addressed the merits in several cases raising Caldwell claims on postconviction review. In the vast majority of cases, however, the Florida Supreme Court has faithfully applied its rule that claims not raised on direct appeal cannot be raised on postconviction review. See Bertolotti v. State, 534 So. 2d 386, 387, n. 2 (1988); Clark v. State, 533 So. 2d 1144, 1145 (1988); Jones v. Dagger, 533 So. 2d 290, 292 (1988); Woods v. State, 531 So. 2d 79, 83 (1988); Cave v. State, 529 So. 2d 293, 296 (1988); Preston v. State, 528 So. 2d 896, 899 (1988); Doyle v. State, 526 So. 2d 909, 911 (1988); Ford v. State, 522 So. 2d 345, 346 (1988), cert. pending No. 88-5582; Henderson v. Dugger, 522 So. 2d 835, 836, n. (1988); Tafero v. Dugger, 520 So. 2d 287, 289 (1988); Foster v. State, 518 So. 2d 901, 901-902 (1987), cert. denied, 487 U. S. 1240 (1988); Phillips v. Dugger, 515 So. 2d 227, 227-228 (1987); Copeland v. Wainwright, 505 So. 2d 425, 427-428, vacated on other grounds, 484 U. S. 807 (1987); Aldridge v. State, 503 So. 2d 1257, 1259 (1987); State v. Sireci, 502 So. 2d 1221, 1223-1224 (1987); Adams v. State, 484 So. 2d 1216, 1217, cert. denied, 475 U. S. 1103 (1986); Middleton v. State, 465 So. 2d 1218, 1226 (1985).
      Moreover, the few cases that respondent and the dissent cite as ignoring procedural defaults do not convince us that the Florida Supreme Court fails to apply its procedural rule regularly and consistently. In Darden v. State, 475 So. 2d 217, 218 (1985), the only alleged default discussed by the court involved the failure to raise the Caldwell claim in a prior Rule 3.850 proceeding. In Mann v. State, 482 So. 2d 1360, 1362 (1986) (as construed in Mann v. Dugger, 844 F. 2d 1446, 1448, n. 4 (CA11 1988), cert. pending, No. 87-2073), the court did not even expressly mention the defendant’s Caldwell claim. In Combs v. State, 525 So. 2d 853, 856 (1988), the Florida court noted that “[i]n Caldwell, unlike the instant case, the defendant had objected to the Mississippi prosecutor’s comment,” while in Daugherty v. State, 533 So. 2d 287, 288, cert. denied, 488 U. S. 959 (1988), the court merely relied on Combs. Finally, in Glock v. Dugger, 537 So. 2d 99, 102 (1989), the court merely stated that “the trial court was justified in summarily denying relief” on the petitioner’s 16 claims; it is not clear from the opinion whether the trial court held that the Caldivell claim was or was not procedurally barred. Regardless of whether any of these cases might be subject to federal habeas review because of the lack of a plain statement that the decision was based on state-law grounds, an issue we considered in Harris v. Reed, ante, p. 255, we do not believe that they are sufficient to undercut the adequacy of the Florida procedural rule.
      Respondent also argues that we should overlook his procedural default because failing to do so would result in a “fundamental miscarriage of justice.” We disagree. In Murray v. Carrier, 477 U. S. 478, 496 (1986), this Court stated that “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” We made clear, however, that such a ease would be an “extraordinary" one, idl'd., and have since recognized the difficulty of translating the concept of “actual” innocence from the guilt phase to the sentencing phase of a capital trial, Smith v. Murray, 477 U. S. 527, 537 (1986). We do not undertake here to define what it means to be “actually innocent” of a death sentence. But it is clear to us that the fact that the trial judge in this case found an equal number of aggravating and mitigating circumstances is not sufficient to show that an alleged error in instructing the jury on sentencing resulted in a fundamental miscarriage of justice.
      The dissent “assume[s], arguendo," that a fundamental miscarriage of justice results whenever “there is a substantial claim that the constitutional violation undermined the accuracy of the sentencing decision.” Post, at 415, n. 4. According to the dissent, since “the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined," post, at 423, the standard for showing a fundamental miscarriage of justice necessarily is satisfied. We reject this overbroad view. Demonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is “actually innocent” of the sentence he or she received. The approach taken by the dissent would turn the case in which an error results in a fundamental miscarriage of justice, the “extraordinary case,” Carrier, supra, at 496, into an all too ordinary one.

         E. g., Johnson v. Mississippi, 486 U. S. 578, 585-587 (1988); Maynard v. Cartwright, 486 U. S. 356, 362-363 (1988); Booth v. Maryland, 482 U. S. 496, 509 (1987); California v. Ramos, 463 U. S. 992, 999 (1983); Zant v. Stephens, 462 U. S. 862, 874 (1983).

       In Caldwell, this Court ruled that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere." 472 U. S., at 328-329.

       See Adams v. Wainwright, 804 F. 2d 1526, 1533 (CA11 1986); 816 F. 2d 1493, 1501 (CA11 1987) (case below). The Eleventh Circuit, in a subsequent case heard en banc, had occasion to express unanimous approval of the panel decision here that respondent’s Caldwell claim is meritorious — even as the en banc Eleventh Circuit divided sharply over the validity of Caldwell claims brought by other prisoners on weaker factual records. See Harich v. Dugger, 844 F. 2d 1464, 1473 (1988), cert. pending, No. 88-5216. Moreover, in the instant case, petitioners did not even seek review of the Court of Appeals’ determination, under Caldwell, that respondent’s death sentence violated the Eighth Amendment. See ante, at 408, n. 4.

       One may well be uncertain as to what meaning Smith gave to the term “fundamental miscarriage of justice.” The opinion cites Murray v. Carrier, which states that “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” 477 U. S., at 496. The Smith majority acknowledged, however, that the “concept of ‘actual’. . . innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial-on a capital offense.” Id., at 537. Nonetheless, as is said in the text here, Smith appears to have rendered this translation: the refusal to review the constitutionality of a death sentence does not result in a fundamental miscarriage of justice unless there is a substantial claim that the constitutional violation undermined the accuracy of the sentencing deci7 sion. In any event, in evaluating whether respondent’s procedural default precluded the Court of Appeals’ consideration of his Caldwell claim, I assume, arguendo, that this is the governing standard after Smith.

       The Court of Appeals found, 816 F. 2d, at 1497, n. 3, and respondent argues, that the Florida Supreme Court did not hold the Caldivell claim an abuse of the Rule 3.850 procedure. This reading of the Florida court’s opinion, however, appears to be contrary to its plain language:
      5 Having carefully reviewed [respondent’s remaining claims], we find that each one either was or should have been raised on direct appeal. We therefore find that the review sought by [respondent] is barred both by Rule 3.850 as ‘an abuse of the procedure governed by these rules,’ and by the caselaw which has firmly established the necessity of raising all available issues upon direct appeal.” 484 So. 2d, at 1217 (emphasis added). It makes no difference for present purposes, however, whether respondent’s claim was held barred on one ground or two; for reasons set forth in the text, neither procedural bar holding constitutes an adequate state ground for the Florida Supreme Court’s judgment.

       On direct appeal, Darden challenged certain statements of the prosecutor as unconstitutionally prejudicial. These statements, however, did not concern the jury’s role in the sentencing process and Darden did not suggest that the jury was misled about its role. See 329 So. 2d, at 289-291. In his second Rule 3.850 proceeding, in contrast, he “also attempt[ed] to show that as in Caldwell, the jury was misled as to its role in the sentencing process.” 475 So. 2d, at 221.

       The majority attempts to dismiss Combs by saying that the court there noted the defendant’s failure to raise the Caldivell claim at trial. But it is clear that the Combs decision did not rely on any procedural default as a basis for rejecting the Caldwell claim in that case. Rather, the Combs opinion is emphatic in expressing its desire to address the Caldivell claim on the merits. See 525 So. 2d, at 854-855. Consequently, Combs is further proof of the inconsistent treatment of Caldivell claims in Florida postconviction proceedings.

       The majority’s efforts to discount Daugherty and Glock reveal a fundamental misunderstanding of the consistency inquiry under Johnson v. Mississippi, 486 U. S. 578 (1986). This inquiry requires considering whether: (1) the prisoner asserted a Caldivell claim in his Rule 3.850 motion; (2) the Caldwell claim was not raised on direct appeal (or in a prior Rule 3.850 motion); and (3) the Florida Supreme Court did not hold the Caldwell claim procedurally barred. Daugherty and Glock satisfy all these criteria. Thus, they are cases in which the Florida Supreme Court failed to apply its procedural bar rules to Caldwell claims, thereby undercutting the consistency of the court’s application of those rules to similarly situated claims.
      That Daugherty relied on Combs does not negate this fact. On the contrary, Daugherty’s, exclusive reliance on Combs as the basis for deciding the Caldwell issue proves conclusively that Daugherty was not an application of a procedural bar rule. Similarly, regarding Glock, it is irrelevant “whether the trial court held that the Caldwell claim was or was not procedurally barred.” Ante, at 411-412, n. 6. Either way, it remains true that the Florida Supreme Court did not hold the Caldwell claim procedurally barred, which is the relevant point for the consistency issue.

       To be sure, in 1987 and 1988, the Florida Supreme Court most of the time held Caldivell claims to be procedurally barred, but this fact does not undermine the conclusion that, at the very least, when the Florida Supreme Court decided Adams, it did not “consistently or regularly” apply its procedural bar rule to a Caldwell claim. Johnson v. Mississippi, 486 U. S., at 587. Nor does it negate the fact that that court persists in failing to treat Caldwell claims in an evenhanded manner.

       In addition, this Court historically has expressed particular reluctance to give force to a state court’s discretionary refusal to consider a capital defendant’s meritorious federal constitutional claim for reasons of procedural default. See Williams v. Georgia, 349 U. S. 375 (1955); Patterson v. Alabama, 294 U. S. 600 (1935). In holding the state procedural bar adequate here, the majority ignores these longstanding precedents.

       I nonetheless digress to note one disturbing aspect of the majority’s analysis of the “cause” issue.
      The majority broadly asserts: “To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.” Ante, at 407. More pointedly, the majority continues: “Respondent therefore must be asserting in this case that the trial court’s remarks violated state law.” Ante, at 407-408. But contrary to the majority’s description of Caldwell's holding, it may be possible to establish a Caldwell violation by showing that jury instructions, although accurate under state law, nonetheless minimize the jury’s sense of responsibility in the sentencing process. See Steffen v. Ohio, 485 U. S. 916 (1988) (Brennan, J., dissenting from denial of certio-rari). The Court need not address this issue here, however, because respondent is asserting what the majority contends he “must be asserting”: his particular Caldwell claim rests on the premise that his jury was given inaccurate information about its role under state law'. Brief for Respondent 25-49. Thus, it would suffice to say that respondent lacks “cause” for his procedural default because under his own theory of his Caldivell claim the objectionable instructions were erroneous under state law.

        See Harich v. Dugger, 844 F. 2d, at 1473; see also Mann v. Dugger, 844 F. 2d 1446, 1450-1455 (CA11 1988) (en banc), cert. pending, No. 87-2073.

       The testimony at issue in Smith was that of the defendant’s court-appointed psychiatrist: during the psychiatric evaluation, the defendant discussed a prior incident of deviant sexual conduct on his part. At the sentencing phase of the trial, the prosecution called the psychiatrist to the stand and elicited a description of what the defendant had said.

       As even the majority appears to recognize, ante, at 410-412, n. 6, the trial judge’s finding of an equal number of aggravating and mitigating circumstances lends further support to respondent’s contention that review of his Caldwell claim is necessary to avoid a fundamental miscarriage of justice. The equal number of aggravating and mitigating circumstances suggests that the sentencing decision was a close call — as does the fact that two justices of the Florida Supreme Court dissented on respondent’s direct appeal. See Adams v. State, 412 So. 2d 850, 857 (1982). Under these circumstances, it is all the more likely that egregiously misinforming the jury of its role in the process affected the result.

       The majority “do[es] not undertake here to define what it means to be ‘actually innocent’ of a death sentence,” ante, at 412, n. 6, yet apparently concludes that respondent cannot show that he “probably is ‘actually innocent’ of the sentence he . . . received.” Ibid. This incoherence in the Court’s decisionmaking would be disturbing in any case, but is especially shocking in a capital case. Moreover, the majority “recognizefs] the difficulty” of applying the concept of “ ‘actual’ innocence” to sentencing determinations, ibid., yet persists in using that problematic term without any clarification of its meaning in the sentencing context. Ibid.

      What is worse, the Court in Smith v. Murray did articulate a standard, and yet the Court today ignores it. I was not in the majority in Smith, but here I have attempted faithfully to apply the standard articulated by the Smith majority, as best as I can discern it: whether the prisoner has demonstrated a “substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination.” 477 U. S., at 539; see also Harris v. Reed, ante, at 268 (O’Connor, J., concurring) (quoting the relevant language from Smith). The majority today refuses to apply this standard because it is evident that respondent must prevail under it. The “alleged error” here — telling the jurors that the death sentence was not on their consciences, when under Florida law their sentencing determination was binding unless clearly erroneous —is such that respondent undoubtedly has presented a “substantial claim” that this error “undermined the accuracy” of his sentence, especially given the equal number of aggravating and mitigating circumstances in his case. See n. 13, siipra.

      By refusing to apply this standard, the Court today effectively discards its own opinion in Smith. Yet, in also refusing to define “actual innocence” in the sentencing context, the Court offers nothing in its place. In this way, the Court both leaves the law in a shambles and reinstates respondent’s death sentence without ever bothering to determine what legal principle actually governs his case.