The Oregon court?s third statement raises a practical
problem. How can we know whether a jury, in taking
account of harm caused others under the rubric of reprehensibility,
also seeks to punish the defendant for having
caused injury to others? Our answer is that state courts
cannot authorize procedures that create an unreasonable
and unnecessary risk of any such confusion occurring. In
particular, we believe that where the risk of that misun-
derstanding is a significant one? — because, for instance, of
the sort of evidence that was introduced at trial or the
kinds of argument the plaintiff made to the jury — ?a court,
upon request, must protect against that risk. Although
the States have some flexibility to determine what kind of
procedures they will implement, federal constitutional law
obligates them to provide some form of protection in appropriate
cases.

(pp. 9-10).