ROBERT JAMES TENNARD, PETITIONER v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2004]
Chief Justice Rehnquist,
dissenting.
A certificate of appealability may
only issue if the applicant has “made a substantial
showing of the denial of a constitutional right,” 28 U.S.C. §
2253(c)(2). “Where a district court has rejected the
constitutional claims on the merits, the showing required to
satisfy §2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Because I believe that reasonable jurists would not
find the District Court’s assessment of the constitutional
claims debatable or wrong, I dissent.
The District Court conducted the
proper inquiry by examining whether Tennard’s evidence of
low intelligence was “‘within the effective reach’” of the jury. App. 128 (quoting
Johnson v. Texas,509 U.S. 350, 375
(1993)). And the District Court came to the correct result;
that is, the special issues allowed the jury to give some
mitigating effect to Tennard’s evidence of low
intelligence. Id., at 369; Graham v.
Collins, 506
U.S. 461, 475 (1993).
In Jurek v. Texas,428 U.S. 262 (1976),
this Court held that the Texas special issues system, as a
general matter, is constitutional. The special issues system
guides the jury’s consideration of mitigating evidence at
sentencing. We have stated:
“Although [Lockett v.
Ohio,438 U.S.
586 (1978),] and [Eddings v. Oklahoma,455 U.S. 104 (1982),]
prevent a State from placing relevant mitigating evidence
‘beyond the effective reach of the sentencer,’
Graham, supra, at 475, those cases and others in
that decisional line do not bar a State from guiding the
sentencer’s consideration of mitigating evidence. Indeed,
we have held that ‘there is no … constitutional
requirement of unfettered sentencing discretion in the jury,
and States are free to structure and shape consideration of
mitigating evidence “in an effort to achieve a more
rational and equitable administration of the death
penalty.”’ Boyde
v. California,494 U.S. 370, 377
(1990) (quoting Franklin v. Lynaugh,487 U.S. 164, 181
(1988) (plurality opinion)).” Johnson,
supra, at 362.
In Penry v. Lynaugh,492 U.S. 302 (1989)
(Penry I), the Court concluded that the Texas special
issues were too limited to give effect to Penry’s
mitigating evidence of his mental retardation and severe
childhood abuse. But we have noted that Penry I did not
“effec[t] a sea change in this Court’s view of the
constitutionality of the former Texas death penalty
statute,” Graham, supra, at 474.
Tennard’s evidence of low intelligence simply does not
present the same difficulty that Penry’s evidence did.
There is no dispute that
Tennard’s low intelligence is a relevant mitigating
circumstance, and that the sentencing jury must be allowed to
consider that mitigating evidence. See, e.g., Eddings
v. Oklahoma, 455 U.S. 104, 110
(1982) (“‘[T]he
sentencer … [may] not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character
or record and any of the circumstances of the offense’”(emphasis deleted) (quoting
Lockett v. Ohio, 438 U.S. 586, 604
(1978))). But the Constitution does not require that “a
jury be able to give effect to mitigating evidence in every
conceivable manner in which the evidence may be relevant.”
Johnson, supra, at 372. The only question in
this case is whether reasonable jurists would find the District
Court’s assessment that Tennard’s evidence of low
intelligence was within the effective reach of the jury via the
Texas special issues debatable or wrong.
The Court concludes that “[t]he
relationship between the special issues and Tennard’s low
IQ evidence has the same essential features as the relationship
between the special issues and Penry’s mental retardation
evidence.” Ante, at 14. I disagree. The first
special issue asked whether Tennard had caused the death of the
victim “‘deliberately
and with the reasonable expectation that the death of the
deceased or another would result.’” Ante, at 2. As the Court of Criminal
Appeals of Texas noted and the District Court agreed, the
mitigating evidence of Tennard’s low intelligence could be
given effect by the jury through this deliberateness special
issue. It does not follow from the Court’s conclusion in
Penry I that mental retardation had relevance to
Penry’s moral culpability beyond the scope of the
deliberateness special issue that evidence of low intelligence
has the same relevance. And, after Johnson and
Graham, it is clear that the question is simply whether
the jury could give someeffect to the mitigating
evidence through the special issues. Johnson,
supra, at 369 (rejecting the petitioner’s claim
that a special instruction was necessary because his evidence
of youth had relevance outside the special issue framework);
Graham, supra, at 476—477 (“[R]eading
Penry[I] as petitioner urges–and thereby
holding that a defendant is entitled to special instructions
whenever he can offer mitigating evidence that has some
arguable relevance beyond the special issues–would be
to require in all cases that a fourth ‘special issue’
be put to the jury: ‘“Does any mitigating evidence before you, whether
or not relevant to the [other special issues], lead you to
believe that the death penalty should not be imposed?’” The [Franklin v.
Lynaugh,487
U.S. 164 (1988)], plurality rejected precisely this
contention, finding it irreconcilable with the Court’s
holding in Jurek, [487 U.S., at 180, n. 10], and we
affirm that conclusion today.”)
The second special issue asked
“‘[i]s there a
probability that the defendant … would commit criminal
acts of violence that would constitute a continuing threat to
society?’” Ante,
at 2. Here, too, this case is very different from Penry
I, where there was expert medical testimony that
Penry’s condition prevented him from learning from
experience. 492 U.S., at 308—309. Here, no such evidence
was presented. Given the evidence, the jury could have
concluded that low intelligence meant that Tennard is a slow
learner, but with the proper instruction, he could conform his
behavior to social norms. It also could have concluded, as the
Court of Criminal Appeals of Texas noted, that Tennard was a
“‘follower’” rather than a “‘leader,’” App. 91, and that he again
could conform his behavior in the proper environment. In
either case– contrary to Penry I–the
evidence could be given mitigating effect in the second special
issue. In short, low intelligence is not the same as mental
retardation and does not necessarily create the Penry I
“two-edged sword.” 492 U.S., at 324. The two
should not be summarily bracketed together.
Because I do not think that
reasonable jurists would disagree with the District
Court’s conclusion that the jury in this case had the
ability to give mitigating effect to Tennard’s evidence of
low intelligence through the first and second special issues, I
dissent.