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. The evidence included specific instances of physical violence committed by Brewer’s father against Brewer and his mother. See id. Brewer was often forced to break up fights between his parents, defend himself, and confront his father on behalf of his mother. See id. at 3–4. Brewer also introduced evidence of severe depression requiring involuntary commitment to a psychiatric hospital three months before he committed the murder. Id. at 4. During closing arguments, the prosecution suggested that these incidents tended to show future dangerousness. See id. Brewer’s counsel submitted to the court seven proposed jury instructions which would address the mitigation evidence presented. Id. Each instruction was denied. Id.
Jalil Abdul-Kabir was also convicted in a Texas court of capital murder for of Raymond C. Richardson. Petition for Writ of Certiorari, Jalil Abdul-Kabir v. Dretke, No. 05-11284 (May 30, 2006) (“Abdul-Kabir Petition for Cert.”). At the sentencing phase, Abdul-Kabir presented evidence of the neglect, abandonment and mistreatment he suffered as a child. See id. at 3–4. He was abandoned by his father at a young age, raised by an alcoholic mother and grandparents, and kept from other children until he was put in a children’s home. See id. at 4. Expert witnesses also testified that Abdul-Kabir suffered from chronic depression and possessed diminished impulse control and impaired judgment as a result of his traumatic childhood. See id. at 5–6. Like in Brewer’s case, the jury was not given any special issue questions directed toward the mitigating evidence presented. Id. at 8.
In both cases, only two special issue questions were presented to the jury: (1) whether the murder was committed deliberately, and (2) whether the defendant posed a threat of future dangerousness. See Abdul-Kabir Petition for Cert. at 7; Brewer Petition for Cert. at 4. A positive answer to each question would lead to a death sentence. Counsel for Abdul-Kabir urged the jury to consider Abdul-Kabir’s life history in making a decision on the appropriate punishment. See Abdul-Kabir Petition for Cert. at 6–7. Counsel for Brewer urged the jury to answer “no” to one of the questions in response to the mitigating evidence presented. See Brewer Petition for Cert. at 4. The prosecution in both cases reminded the jury that they were not there to make a moral judgment, but rather to answer the questions accurately. See Abdul-Kabir Petition for Cert. at 7; Brewer Petition for Cert. at 4.
In both cases, the jury returned an answer of “yes” to each question, and both Brewer and Abdul-Kabir were sentenced to death. Abdul-Kabir Petition for Cert. at 2; Brewer Petition for Cert. at 2. Brewer’s conviction was affirmed on appeal and relief was denied by the Supreme Court. See Brewer Petition for Cert. at 2. Brewer then filed a habeas petition in Federal District Court for the Northern District of Texas. Id. That court granted relief as to the sentence, which was later reversed by the Fifth Circuit. Id. Abdul-Kabir’s conviction and sentence were also affirmed on appeal, but his habeas petition was denied by the District Court for the Northern District of Texas. Abdul-Kabir Petition for Cert. at 2. Both Brewer and Abdul-Kabir argued on appeal that the mitigating evidence presented in his case was not afforded full consideration by the special issue questions given to the jury. See Brewer v. Dretke, 442 F.3d 273, 276–77 (5th Cir. 2006) (“Brewer 5th Cir.”); Cole v. Dretke, 418 F.3d 494, 497 (5th Cir. 2005) (“Cole 5th Cir.”). Abdul-Kabir’s appeal was also denied by the Fifth Circuit. Abdul-Kabir Petition for Cert. at 2. Both Brewer and Abdul-Kabir appealed to the U.S. Supreme Court.
In Johnson v. Texas, 509 U.S. 305 (1993), the Supreme Court held that, in capital cases, jury instructions must allow jurors to consider the mitigating evidence presented by the defense. See Johnson, 509 U.S. at 369. This concept was reaffirmed in Penry v. Lynaugh, 492 U.S. 302 (1989), where the court stressed the importance of individualized sentences in capital cases and discussed the relatedness of mitigating evidence to achieving result. See Penry at 319. Penry went on to rule that the deliberateness and future dangerous questions did not afford a chance for the jury to consider the mitigating evidence presented in that case, which included evidence of mental retardation, brain damage, and severe child abuse. See Penry at 328. The core of both Brewer and Abdul-Kabir’s arguments is a similar one—that the same two special issue questions to the jury left jurors unable to fully consider the mitigating evidence and moral culpability of Brewer and Abdul-Kabir. See Brief for Abdul-Kabir at 10; Brief for Brewer at 6.
As an initial matter, Brewer and Abdul-Kabir each argue that the evidence of past mental illness and child abuse were mitigating evidence as defined by precedents of the Supreme Court. See Brief for Abdul-Kabir at 13; Brief for Brewer at 9. They go on to argue that the deliberateness question did not call for any inquiry into the moral blameworthiness of either Brewer or Abdul-Kabir and thus did not allow the jury to fully consider the mitigating effects of the evidence presented. See Brief for Abdul-Kabir at 14–15; Brief for Brewer at 10. A jury, each party argues, may be able to answer “yes” to a question regarding deliberateness and yet still believe that past abuse reduces the moral culpability of the crime and thus makes a death sentence inappropriate. See Brief for Abdul-Kabir at 16; Brief for Brewer at 11. However, by merely asking whether the jurors believe the crime was committed deliberately, jurors have no opportunity to express this conflicting belief. See Brief for Abdul-Kabir at 16; Brief for Brewer at 11, FN6.
Even more problematic for Brewer and Abdul-Kabir is the future dangerousness question, which asks jurors whether the defendant posed a threat of future dangerousness. Brewer and Abdul-Kabir argue that not only is mitigating evidence not given proper consideration under this inquiry, but may actually be used against the offering party by explaining, rather than rebutting, a finding of future dangerousness. See Brief for Abdul-Kabir at 17; Brief for Brewer at 12. They argue that evidence of abuse and mental illness might lead a jury to believe that the defendant will be dangerous in the future because of his tortured past, but, for the same reasons, that the defendant does not have the moral culpability to make a death sentence appropriate. See Brief for Abdul-Kabir at 18; Brief for Brewer at 14. By asking a future dangerousness question and only allowing a yes or no answer, jurors can only give effect to the former conclusion drawn, and not the latter.
Quarterman argues, however, that there is no constitutional violation when there is a mere possibility that mitigating evidence was not considered under the special issue questions. Brief in Opposition for Writ of Certiorari at 15, Jalil Abdul-Kabir v. Dretke, No. 05-11284 (July 17, 2006) (“Abdul-Kabir Brief in Opposition”); Brief in Opposition to Petition for Writ of Certiorari at 10, Brewer v. Dretke, No. 05-11287 (July 14, 2006) (“Brewer Brief in Opposition”). For there to be such an error, there must be a “reasonable likelihood” that jurors were unable to give mitigating evidence sufficient consideration. Abdul-Kabir Brief in Opposition at 17–18; Brewer Brief in Opposition at 10. For instance, if mitigating evidence could only be considered as an aggravating factor in answering the special issue questions, then their application would be improper. The cases in which aggravation is the only relevant conclusion to be drawn from mitigating evidence, Quarterman points out, however, are rare. Brewer Brief in Opposition at 12. Further, Quarterman argues that courts have found that jurors are able to give effect to the type of mitigating evidence introduced by both Brewer and Abdul-Kabil in a way that does not merely contribute to a finding of future dangerousness or deliberateness. See Abdul-Kabir Brief in Opposition at 13–14; Brewer Brief in Opposition at 17–20. Thus, there is a reasonable likelihood that jurors could have considered the mitigating effects of the evidence presented in these two cases.
While Brewer and Abdul-Kabir insist that the special issue questions themselves left mitigating evidence without any force, they also argue that the prosecutor in each case curtailed any effect the evidence may have had by reminding the jury that they had no discretion in answering the jury questions. See Brief for Abdul-Kabir at 19–20; Brief for Brewer at 19. Prosecutors in both cases emphasized that their answers should be formed by considering only the evidence presented and not by a subjective determination of what the sentence should be. See Brief for Abdul-Kabir at 37–38; Brief for Brewer at 19. Brewer and Abdul-Kabir argue that this emphasis restrained the jury from giving any meaningful consideration to the mitigating evidence. Brief for Abdul-Kabir at 19–20; Brief for Brewer at 19.
Quarterman contends that Brewer and Abdul-Kabir are merely speculating that the jury, in response to the prosecutions’ arguments, did not give the mitigating evidence full effect. See Abdul-Kabir Brief in Opposition at 18. He argues that in applying jury instructions, jurors employ a significant amount of common sense and are unlikely to apply the kind of technical analysis it would take to exclude all consideration of the mitigating effects of the evidence. Id. The prosecution in these cases did not call for a misapplication of the law or ask jurors to ignore any evidence. See id. at 20. Because the arguments were not improper and because of jurors’ alleged natural inclination to deliberate over the case as a whole, Quarterman argues that the prosecutions’ arguments did not contribute to any constitutional violations. See id. at 18–19.
Finally, Brewer and Abdul-Kabir argue that the courts below applied an improper standard when evaluating the mitigating evidence at the outset. In particular, they argue that the courts examined the severity of the mitigating evidence and the “nexus” between that evidence and the crime at hand to determine the “constitutional relevance” of the mitigating evidence. Brief for Brewer at 38. Under this screening process, only evidence with “constitutional relevance” was considered to be outside the scope of the special issue questions. Id. Applying this test, courts categorize the mitigating evidence, and the evidence that is less severe is considered to be within the scope of the two special issue questions. Brewer and Abdul-Kabil object to an analysis that concludes that mental retardation, a more severe circumstance, is outside of the reach of the special issue questions while mental illness—less severe—can be adequately taken into consideration. Both parties argue that the use of this type of categorical distinction was foreclosed in Tennard v. Dretke, 542 U.S. 274 (2004). See Brief for Abdul-Kabir at 27; Brief for Brewer at 28. They argue that mitigating evidence must be considered in the context of the case and examined in the context of whether or not it can be given effect by the special issue questions posed. See Brief for Abdul-Kabir at 27; Brief for Brewer at 31. Categorical guidelines do not afford this consideration and are not relevant to determining the effect of the evidence is given. See Brief for Abdul-Kabir at 28; Brief for Brewer at 46.
Quarterman agrees that Tennard forbids the use of such categorical rules. See Brewer Brief in Opposition at 12. He argues, however, that Tennard allowed courts to examine evidence that is relevant by general evidentiary standards, rather than relevant as defined by its severity and nexus. See id. at 13. When mitigating evidence is generally relevant, meaning that it has any tendency to make the existence of a fact more or less probable, it must be considered by the jury in capital sentencing. Id. Quarterman then argues, however, that relevant evidence does not have to given “full consideration” under the special issue questions. See Brewer Brief in Opposition at 14. In other words, it is possible that mitigating evidence might have some relevance outside of the consideration given to it under the special issues. Id. This alone, however, is not an Eight Amendment error, so long as consideration of the mitigating factors was not completely foreclosed. Id. at 15. Quarterman cites numerous cases to show that the type of evidence presented here—childhood abuse and mental illness—can be given effect under the deliberateness and future dangerousness questions. Id. at 17–20. For example, in Hernandez v. Johnson, 248 F.3d 344 (5th Cir. 2001), Robison v. Johnson, 151 F.3d 256 (5th Cir. 1998), and Lucas v. Johnson, 132 F.3d 1069 (5th Cir. 1998), the courts found that treatable mental illnesses can be given mitigating effect when considering future dangerousness. See Brewer Brief in Opposition at 19. Therefore, the argument goes, there is no constitutional error in treating only the future dangerousness and deliberateness questions as special issues. See Brewer Brief in Opposition at 16.
The Supreme Court has many precedent cases to look to in answering the questions presented by this case. The scope of these decisions, however, will have to be assessed in examining the proper approach to sentencing in light of the mitigating evidence. Finally, the language of the Court’s decision will be pivotal in guiding its impact. The choice to discuss this case in terms of mitigating evidence generally or to examine the specific type presented here will be relevant to courts attempting to achieving proper sentencing procedures in future capital cases.
In 2002, Andrea Yates was convicted in Texas of the murders of her five children. She had pled not guilty by reason of insanity, and both the prosecution and defense agreed that she was mentally ill. Her high profile case fueled a national debate about the appropriateness of imposing the death penalty on defendants who are mentally ill. See Yates Attorneys Won’t Seek Release, Jan. 7, 2005, www.cnn.com. These two cases now before the Supreme Court will shed some light on the consideration that must be given to evidence of mental illness in the sentencing phase of a capital case.
At the time Brewer and Abdul-Kabir were convicted, the sentencing phase of capital trials in Texas was structured around “special issues.” Juries were generally asked to answer two questions: (1) whether the defendant’s acts were deliberate; and (2) whether the defendant posed a future danger to society. An additional special issue question regarding mitigating circumstances was only posed to the jury if the court found that the jury could not effectively consider the mitigating evidence from answering the two questions. Brewer 5th Cir. at 277–78.
Brewer and Abdul-Kabir assert that they suffer from mental illnesses and were abused as children, both of which are mitigating factors that must be considered by the jury. The Fifth Circuit agreed with the state that the jury could sufficiently consider this evidence in their deliberations on the “future dangerousness” question. It reasoned that the jury could hear the evidence but still conclude that the defendants would not be a danger to society in the future in part because some testimony suggested that violent tendencies would diminish over time. Brewer 5th Cir. at 279–80; Cole 5th Cir. at 505–06. The inmates point out that whether a person is likely to be a future danger is a separate issue from the person’s moral culpability for the crime committed. They also argue that the jury will interpret evidence of mental illness as aggravating as opposed to mitigating evidence. Indeed, evidence of mental illness may show both that a person is likely to be a continued threat and that the person is less blameworthy for their actions. Brief for Brewer at 13–14, Brief for Abdul-Kabir at 17–18. The Fifth Circuit, however, pointed out that the Supreme Court jurisprudence on which the defendants relied involved mental retardation, which it deemed categorically different from mental illness. Brewer 5th Cir. at 280.
The Fifth Circuit’s sharp distinction between mental retardation and mental illness is highly controversial both internationally and within the United States. The U.S. has long been criticized by the international community and by domestic human rights organizations for its death penalty policies, particularly for imposing the death sentence on juveniles and the mentally impaired. In recent cases, however, the Supreme Court has held that some of these policies are no longer acceptable due to “evolving standards of decency.” In Atkins v. Virginia, 543 U.S. 551 (2005), for instance, the Court ruled the execution of the mentally retarded to be unconstitutional. In Roper v. Simmons, 543 U.S. 551 (2005), the Court held the execution of juveniles to be unconstitutional. Atkins does not address mental illness other than retardation, however. These cases now before the Supreme Court will therefore shed light on what effect mental illness has on the constitutionality of a death sentence.
Brewer entered evidence of a single instance of hospitalization in support of his mental illness and chose not to present psychological or psychiatric evidence. Brewer 5th Cir. at 276. Because this evidence is relatively weak, a finding for the petitioners potentially could require a special instruction on mitigating circumstances any time evidence of mental illness is presented in a Texas case. On the other hand, a finding in favor of the state means that Texas can continue to allow a mitigation instruction to the jury only in very limited circumstances. This means that a large number of defendants will only have their mitigating evidence considered indirectly at their sentencing hearings. The petitioners contend that such a result would allow the Fifth Circuit to continue to flout the Supreme Court’s rulings that mitigating evidence should be given its full effect. Brewer Petition for Cert. at 11–12. Depending on the Court’s reasons for its holding, however, a ruling for the state may only permit the lower courts to distinguish between chronic mental illnesses, such as chronic paranoid schizophrenia, and “lesser” cases of mental illnesses such as a single bout of depression.
The Texas statute at issue was in these cases was one of the first death penalty statutes to be upheld as facially constitutional in Jurek v. Texas, 428 U.S. 262 (1976). Subsequent cases have acknowledged its continuing validity. Brewer 5th Cir. at 277–78. Consequently, it is unlikely, though possible, that the Court will go beyond the questions presented and rule the entire statute unconstitutional. But if the Court agrees with Brewer and Abdul-Kabir that the Fifth Circuit’s implementation of the special issue structure of death sentencing statute has flaunted constitutional limits, the Court could require a mitigation instruction in every death penalty case under the scheme. Such a holding would give strong support to advocates across the country who are pushing for states to give more weight to mitigating factors.
Since Texas has executed nearly four times as many prisoners as any other state, any changes to its death penalty implementation will have a huge impact on the nation’s capital punishment policy in general. See Facts About the Death Penalty, Death Penalty Information Center. As well, the Court’s reasoning for its holding will significantly impact a national debate by shedding light on the constitutional significance of mental illness in capital sentencing.
- 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