|Penry v. Lynaugh
832 F. 2d 915, affirmed in part, reversed in part, and remanded.
[ O'Connor ]
[ Brennan ]
[ Stevens ]
[ Scalia ]
Penry v. Lynaugh
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part.
I agree that the jury instructions given at sentencing in this case deprived petitioner of his constitutional right to have a jury consider all mitigating evidence that he presented before sentencing him to die. I would also hold, however, that the Eighth Amendment prohibits the execution of offenders who are mentally retarded, and who thus lack the full degree of responsibility for their crimes that is a predicate for the constitutional imposition of the death penalty.
I dissented in Teague v. Lane, 489 U.S. 288, 326 (1989), and I continue to believe that the plurality's unprecedented curtailment of the reach of the Great Writ in that case was without foundation. The Teague plurality adopted for no adequate reason a novel threshold test for federal review of state criminal convictions that, subject to narrow exceptions, precludes federal courts from considering a vast array of important federal questions on collateral review, and thereby both prevents the vindication of personal constitutional rights and deprives our society of a significant safeguard against future violations. In this case, the Court compounds its error by extending Teague's notion that new rules will not generally be announced on collateral review to cases in which a habeas petitioner challenges the constitutionality of a capital sentencing procedure. This extension means that a person may be killed although he or she has a sound constitutional claim that would have barred his or her execution had this Court only announced the constitutional rule before his or her conviction and sentence became final. It is intolerable that the difference between life and death should turn on such a fortuity of timing, and beyond my comprehension that a majority of this Court will so blithely allow a State to take a human life though the method by which sentence was determined violates our Constitution. [p342]
I say the Court takes this step "blithely" advisedly. The Court extends Teague without the benefit of briefing or oral argument. Teague, indeed, was decided only after we had heard argument in this case. Rather than postponing decision on the important issue whether Teague should be extended to capital cases until it is presented in a case in which it may be briefed and argued, the Court rushes to decide Teague's applicability in such circumstances here. It does so in two sentences, ante at 313-314, saying merely that not to apply Teague would result in delay in killing the prisoner and in a lack of finality. There is not the least hint that the Court has even considered whether different rules might be called for in capital cases, let alone any sign of reasoning justifying the extension. Such peremptory treatment of the issue is facilitated, of course, by the Court's decision to reach the Teague question without allowing counsel to set out the opposing arguments.
Though I believe Teague was wrongly decided, and the Court's precipitous decision to extend Teague to capital cases an error, nevertheless, if these mistakes are to be made law, I agree that the Court's discussion of the question whether the jury had an opportunity to consider Penry's mitigating evidence in answering Texas' three "special issues" does not establish a "new rule." I thus join Part II-B of the Court's opinion, and all of Parts I and III. I also agree that there is an exception to Teague so that new rules "prohibiting a certain category of punishment for a class of defendants because of their status or offense" may be announced in, and applied to, cases on collateral review. Ante at 330. I thus join Part IV-A of the Court's opinion.
A majority of the Court today reaffirms, in this case and in Stanford v. Kentucky, post at 382 (O'CONNOR, J., concurring in part and concurring in judgment); post at 393 (BRENNAN, J., dissenting), the well-established principle that [p343]
application of the death penalty to particular categories of crimes or classes of offenders violates the Eighth Amendment [if] it
makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering
or [if] it is "grossly out of proportion to the severity of the crime.
Ante at 335 (opinion of O'CONNOR, J.), quoting Coker v. Georgia, 433 U.S. 584, 592 (1977). The contours of these these two inquiries are clear. We gauge whether a punishment is disproportionate by comparing "the gravity of the offense," understood to include not only the injury caused, but also the defendant's moral culpability, with "the harshness of the penalty." Solem v. Helm, 463 U.S. 277, 292 (1983). See ante at 336; Stanford, post at 382 (O'CONNOR, J., concurring in part and concurring in judgment); post at 393-394 (BRENNAN, J., dissenting); Thompson v. Oklahoma, 487 U.S. 815, 834 (1988) (plurality opinion); id. at 853 (opinion of O'CONNOR, J.); Coker, supra, at 598; Enmund v. Florida, 458 U.S. 782, 798 (1982) (opinion of the Court); id. at 815 (O'CONNOR, J., dissenting). And we require that a punishment further the penal goals of deterrence or retribution. Ante at 335-336; Stanford, post at 403 (BRENNAN, J., dissenting); Thompson, supra, at 836 (plurality opinion); Enmund, supra, at 798; Coker, supra, at 592; Gregg v. Georgia, 428 U.S. 153, 183 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). In my view, execution of the mentally retarded is unconstitutional under both these strands of Eighth Amendment analysis.
I agree with JUSTICE O'CONNOR that one question to be asked in determining whether the execution of mentally retarded offenders is always unconstitutional because disproportionate is whether the mentally retarded, as a class,
by virtue of their mental retardation alone, . . . inevitably lack the cognitive, volitional, and moral capacity to act with the [p344] degree of culpability associated with the death penalty.
Ante at 338. JUSTICE O'CONNOR answers that question in the negative, "[i]n light of the diverse capacities and life experiences of mentally retarded persons." Ibid. It seems to me that the evidence compels a different conclusion.
For many purposes, legal and otherwise, to treat the mentally retarded as a homogeneous group is inappropriate, bringing the risk of false stereotyping and unwarranted discrimination. See Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo.Wash.L.Rev. 414, 427 (1985). Nevertheless, there are characteristics as to which there is no danger of spurious generalization because they are a part of the clinical definition of mental retardation. "Mental retardation" is defined by the American Association on Mental Retardation (AAMR) as
significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.
AAMR, Classification in Mental Retardation 11 (H. Grossman ed. 1983) (hereafter AAMR Classification). To fall within this definition, an individual must be among the approximately two percent of the population with an IQ below 70 on standardized measures of intelligence, see id. at 31, and in addition must be subject to
significant limitations in [his or her] effectiveness in meeting the standards of maturation, learning, personal independence, and/or social responsibility that are expected for his or her age level and cultural group,
id. at 11; see also id. at 76 (noting "the imperfect correlation of intelligence and adaptive behavior, especially at the upper ends of the intellectual range of retardation"). Thus, while as between the mildly, moderately, severely, and profoundly mentally retarded, with IQs ranging from 70 to below 20, there are indeed "marked variations in the degree of deficit manifested," it is also true that
all individuals [designated as mentally retarded] share the common attributes of [p345] low intelligence and inadequacies in adaptive behavior.
Id. at 12 (emphasis added). [n1]
In light of this clinical definition of mental retardation, I cannot agree that the undeniable fact that mentally retarded persons have "diverse capacities and life experiences," ante at 338, is of significance to the Eighth Amendment proportionality analysis we must conduct in this case. "Every individual who has mental retardation" -- irrespective of his or her precise capacities or experiences -- has "a substantial disability in cognitive ability and adaptive behavior." Brief for the AAMR et al. as Amici Curiae 5 (hereafter AAMR Brief). This is true even of the "highest functioning individuals in the ‘mild' retardation category," id. at 14, and of course of those like Penry whose cognitive and behavioral disabilities place them on the borderline between mild and moderate retardation. See ante at 307-308, and n. 1. Among the mentally retarded,
reduced ability is found in every dimension of the individual's functioning, including his language, communication, memory, attention, ability to control impulsivity, moral development, self-concept, self-perception, suggestibility, knowledge of basic information, and general motivation.
AAMR Brief 6. Though individuals, particularly those who are mildly retarded, may be quite capable of overcoming these limitations to the extent of being able to "maintain [p346] themselves independently or semi-independently in the community," AAMR Classification 184; see id. at 207-208, nevertheless, the mentally retarded by definition "have a reduced ability to cope with and function in the everyday world." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442 (1985). The impairment of a mentally retarded offender's reasoning abilities, control over impulsive behavior, and moral development, in my view, limits his or her culpability so that, whatever other punishment might be appropriate, the ultimate penalty of death is always and necessarily disproportionate to his or her blameworthiness, and hence is unconstitutional. [n2]
Even if mental retardation alone were not invariably associated with a lack of the degree of culpability upon which death as a proportionate punishment is predicated, I would still hold the execution of the mentally retarded to be unconstitutional. If there are among the mentally retarded exceptional individuals as responsible for their actions as persons who suffer no such disability, the individualized consideration afforded at sentencing fails to ensure that they are the only mentally retarded offenders who will be picked out to receive a death sentence. The consideration of mental retardation as a mitigating factor is inadequate to guarantee, as the Constitution [p347] requires, that an individual who is not fully blameworthy for his or her crime because of a mental disability does not receive the death penalty.
That "sentencers can consider and give effect to mitigating evidence of mental retardation in imposing sentence" provides no assurance that an adequate individualized determination of whether the death penalty is a proportionate punishment will be made at the conclusion of each capital trial. Ante at 340. At sentencing, the judge or jury considers an offender's level of blameworthiness only along with a host of other factors that the sentencer may decide outweigh any want of responsibility. The sentencer is free to weigh a mentally retarded offender's relative lack of culpability against the heinousness of the crime and other aggravating factors, and to decide that even the most retarded and irresponsible of offenders should die. Indeed, a sentencer will entirely discount an offender's retardation as a factor mitigating against imposition of a death sentence if it adopts this line of reasoning:
It appears to us that there is all the more reason to execute a killer if he is also . . . retarded. Killers often kill again; [a] retarded killer is more to be feared than a . . . normal killer. There is also far less possibility of his ever becoming a useful citizen.
Upholding Law and Order, Hartsville Messenger, June 24, 1987, p. 5B, col. 1 (approving death sentence imposed on mentally retarded murderer by a South Carolina court). Lack of culpability as a result of mental retardation is simply not isolated at the sentencing stage as a factor that determinatively bars a death sentence; for individualized consideration at sentencing is not designed to ensure that mentally retarded offenders are not sentenced to death if they are not culpable to the degree necessary to render execution a proportionate response to their crimes. When Johnny Penry is resentenced, absent a change in Texas law, there will be nothing to prevent the jury, acting lawfully, from [p348] sentencing him to death once again -- even though it finds his culpability significantly reduced by reason of mental retardation. I fail to see how that result is constitutional, in the face of the acknowledged Eighth Amendment requirement of proportionality.
There is a second ground upon which I would conclude that the execution of mentally retarded offenders violates the Eighth Amendment: killing mentally retarded offenders does not measurably further the penal goals of either retribution or deterrence.
The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.
Tison v. Arizona, 481 U.S. 137, 149 (1987); see also Enmund, 458 U.S. at 800. Since mentally retarded offenders as a class lack the culpability that is a prerequisite to the proportionate imposition of the death penalty, it follows that execution can never be the "just deserts" of a retarded offender, id. at 801, and that the punishment does not serve the retributive goal, see Stanford, post at 404 (BRENNAN, J., dissenting) ("A punishment that fails the Eighth Amendment test of proportionality because disproportionate to the offender's blameworthiness by definition is not justly deserved").
Furthermore, killing mentally retarded offenders does not measurably contribute to the goal of deterrence. It is highly unlikely that the exclusion of the mentally retarded from the class of those eligible to be sentenced to death will lessen any deterrent effect the death penalty may have for nonretarded potential offenders, for they, of course, will under present law remain at risk of execution. And the very factors that make it disproportionate and unjust to execute the mentally retarded also make the death penalty of the most minimal deterrent effect so far as retarded potential offenders are concerned. "[I]ntellectual impairments . . . in logical reasoning, strategic thinking, and foresight," the lack of the intellectual and developmental predicates of an "ability to [p349] anticipate consequences," and "impairment in the ability to control impulsivity," AAMR Brief 6-7, mean that the possibility of receiving the death penalty will not in the case of a mentally retarded person figure in some careful assessment of different courses of action. See also id. at 7 ("[A] person who has mental retardation often cannot independently generate in his mind a sufficient range of behaviors from which to select an action appropriate to the situation he faces (particularly a stressful situation)"). In these circumstances, the execution of mentally retarded individuals is "nothing more than the purposeless and needless imposition of pain and suffering," Coker, 433 U.S. at 592, and is unconstitutional under the Eighth Amendment.
Because I believe that the Eighth Amendment to the United States Constitution stands in the way of a State killing a mentally retarded person for a crime for which, as a result of his or her disability, he or she is not fully culpable, I would reverse the judgment of the Court of Appeals in its entirety.
1. It is of course possible to classify those with developmental disabilities in different ways. Indeed, the question on which certiorari was granted in this case -- whether it violates the Eighth Amendment "to execute an individual with the reasoning capacity of a seven-year-old" -- concerned classification according to mental age. Petitioner conflates mental age and the AAMR's mental retardation classifications in his brief, and the Court addresses both proposals for Eighth Amendment line-drawing. JUSTICE O'CONNOR's opinion does not, however, preclude the possibility that an Eighth Amendment line might be drawn using a classification that encompasses only a more substantially disabled group than all those within the AAMR's clinical definition of the mentally retarded, and that lacks the problems JUSTICE O'CONNOR associates with the concept of mental age, ante at 338-340.
2. Because a person's "mental age" is a factor only of his or her IQ and of the average IQs of nonretarded children, see ante at 339, it is a less sophisticated and reliable guide to an individual's abilities than the accepted standards for diagnosing mental retardation, and must be supplemented with estimates of a person's "social maturity" measured in comparison to that of nonretarded children. In the present case, for example, there was testimony that petitioner had a mental age of 6 1/2 and a social maturity equivalent to that of a 9- or 10-year-old. This evidence surely gives some insight into just what it is that Texas has proposed to do in killing Penry. However, "[t]he equivalence between nonretarded children and retarded adults is . . . imprecise," AAMR Brief 14, n. 6, and it seems, on the basis of the information before us, to be more appropriate to conduct proportionality analysis by reference to the accepted clinical classification of mental retardation than on the basis of age comparisons.