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BRENNAN, J.,
Concurring in Part, Dissenting in Part
SUPREME COURT OF THE UNITED STATES
492 U.S. 302
Penry v. Lynaugh
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT
No. 87-6177
Argued: January 11, 1989 --- Decided:
June 26, 1989
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
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.
II
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.
A
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.
B
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.
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