Brewer v. Quarterman; Abdul-Kabir, fka Cole v. Quarterman
Issues
1. Could the jury give constitutionally sufficient consideration to mitigating evidence of childhood abuse and mental illness through deliberations on the deliberateness of the defendant’s action or on his future dangerousness?
2. Even if it is theoretically possible that jurors could sufficiently consider such evidence, is it reasonably likely that the prosecution’s reminders to answer the questions narrowly prevented the jurors from actually considering such mitigating evidence?
3. Has the Fifth Circuit drawn and unconstitutional line by distinguishing chronic, untreatable mental illness from other mental illnesses?
Brent Ray Brewer and Jalil Abdul-Kabir, the petitioners in these cases, are two inmates on death row in Texas. They are seeking writs of habeas corpus from the federal courts to overturn their death sentences. During the sentencing phase of their trials, the jury was asked to determine whether the defendant killed “deliberately,” and whether he would constitute a “continuing threat to society.” The juries in both cases returned two “yes” answers, which dictated a sentence of death under state law. The inmates argue that these questions did not give the jury a meaningful basis on which to consider mitigating evidence of childhood abuse and mental illness. The United States District Court for the Northern District of Texas denied the habeas corpus petition for Abdul-Kabir but granted it for Brewer. The Fifth Circuit, in ruling for the state on both petitions on appeal, held that the jury instruction enabled the jury to consider mitigating evidence in their deliberations on the future dangerousness question. Therefore, it held that the state court did not misapply federal law, and the writ of habeas corpus could not be granted. The inmates disagree with this conclusion and are now making an as-applied challenge to the Texas statute before the U.S. Supreme Court. These cases could have a significant impact on the ongoing national debate about the appropriateness of applying the death penalty on the mentally ill.
Questions as Framed for the Court by the Parties
1. Do the former Texas “special issue” capital sentencing jury instructions—which permit jurors to register only a “yes” or “no” answer to two questions, inquiring whether the defendant killed “deliberately” and probably would constitute a “continuing threat to society”—permit constitutionally adequate consideration of mitigating evidence about a defendant’s mental impairment and childhood mistreatment and deprivation, in light of this Court’s emphatic statement in Smith v. Texas, 543 U.S. 37, 48 (2004), that those same two questions “had little, if anything, to do with” Smith’s evidence of mental impairment and childhood mistreatment)?
2. Do this Court’s recent opinions in Penry v. Johnson, 532 U.S. 782 (2001) (“Penry II”) and Smith, both of which require instructions that permit jurors to give “full consideration and full effect” to a defendant’s mitigating evidence in choosing the appropriate sentence, preclude the Fifth Circuit from adhering to its prior decisions—antedating Penry II and Smith—that reject Penry error whenever the former special issues might have afforded some indirect consideration of the defendant’s mitigating evidence?
3. Has the Fifth Circuit, in insisting that a defendant show as a predicate to relief under Penry that he suffers from a mental disorder that is severe, permanent or untreatable, simply resurrected the threshold test for “constitutional relevance” that this Court emphatically rejected in Tennard v. Dretke, 542 U.S. 274 (2004)?
4. Where the prosecution, as it did here, repeatedly implores jurors to “follow the law” and “do their duty” by answering the former Texas special issues on their own terms and abjuring any attempt to use their answers to effect an appropriate sentence, is it reasonably likely that jurors applied their instructions in a way that prevented them from fully considering and giving effect to the defendant’s mitigating evidence?
Brent Ray Brewer was convicted and sentenced to death in Texas for the murder of Robert Laminack. Petition for Writ of Certiorari at 2, Brewer v. Dretke, No. 05-11287 (May 30, 2006) (“Brewer Petition for Cert.”). At trial, counsel for Brewer introduced mitigating evidence indicating that Brewer suffered mental illness and an abusive childhood. Id. at 3.
Additional Resources
- Cornell Death Penalty Project
- Law about... Death Penalty
- The Death Penalty Information Center
- Names and Last Statements of Texas’ Executed Offenders
- National Alliance on Mental Illness
- ACLU: Mental Illness and the Death Penalty in the United States
- Pro-Death Penalty .com
- Texas Dept. of Criminal Justice, Death Row Information