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O'CONNOR, J.,
Opinion of the Court
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 O'CONNOR
delivered the opinion of the Court, except as to Part IV-C.
In this case, we must decide whether
petitioner, Johnny Paul Penry, was sentenced to death in violation of
the Eighth Amendment because the jury was not instructed that it
could consider and give effect to his mitigating evidence in imposing
its sentence. We must also decide whether the Eighth Amendment
categorically prohibits Penry's execution because he is mentally
retarded.
I
On the morning of
October 25, 1979, Pamela Carpenter was brutally raped, beaten, and
stabbed with a pair of scissors in her home in Livingston, Texas. She
died a few hours later in the course of emergency treatment. Before she
died, she described her assailant. Her description led two local
sheriff's deputies to suspect Penry, who had recently been released on
parole after conviction on another rape charge. Penry subsequently gave
two statements confessing to the crime, and was charged with capital
murder.
At a competency hearing held before
trial, a clinical psychologist, Dr. Jerome Brown, testified that Penry
was mentally retarded. As a child, Penry was diagnosed as having organic
brain damage, which was probably caused by trauma to the brain at birth.
App. 34-35. Penry was tested over the years as having an IQ between 50
and 63, which indicates [p308] mild to
moderate retardation.
[n1] Id. at 36-38, 55. Dr. Brown's own testing
before the trial indicated that Penry had an IQ of 54. Dr. Brown's
evaluation also revealed that Penry, who was 22 years old at the time of
the crime, had the mental age of a 6 1/2-year-old, which means that "he
has the ability to learn and the learning or the knowledge of the
average 6 1/2-year-old kid." Id. at 41. Penry's social maturity,
or ability to function in the world, was that of a 9- or 10-year-old.
Dr. Brown testified that "there's a point at which anyone with [Penry's]
IQ is always incompetent, but, you know, this man is more in the
borderline range." Id. at 47.
The jury found Penry competent to
stand trial. Id. at 20-24. The guilt-innocence phase of the trial
began on March 24, 1980. The trial court determined that Penry's
confessions were voluntary, and they were introduced into evidence. At
trial, Penry raised an insanity defense and presented the testimony of a
psychiatrist, Dr. Jose Garcia. Dr. Garcia testified that Penry suffered
from organic brain damage and moderate retardation, which resulted in
poor impulse control and an inability to learn from experience. Id.
at 18, 19, 87-90. Dr. Garcia indicated that Penry's brain damage was
probably caused at birth, id. at 106, but may have been caused by
beatings and multiple injuries to the [p309]
brain at an early age. Id. at 18, 90. In Dr. Garcia's judgment,
Penry was suffering from an organic brain disorder at the time of the
offense which made it impossible for him to appreciate the wrongfulness
of his conduct or to conform his conduct to the law. Id. at
86-87.
Penry's mother testified at trial
that Penry was unable to learn in school, and never finished the first
grade. Penry's sister testified that their mother had frequently beaten
him over the head with a belt when he was a child. Penry was also
routinely locked in his room without access to a toilet for long periods
of time. Id. at 124, 126, 127. As a youngster, Penry was in and
out of a number of state schools and hospitals, until his father removed
him from state schools altogether when he was 12. Id. at 120.
Penry's aunt subsequently struggled for over a year to teach Penry how
to print his name. Id. at 133.
The State introduced the testimony
of two psychiatrists to rebut the testimony of Dr. Garcia. Dr. Kenneth
Vogtsberger testified that, although Penry was a person of limited
mental ability, he was not suffering from any mental illness or defect
at the time of the crime, and that he knew the difference between right
and wrong and had the potential to honor the law. Id. at 144-145.
In his view, Penry had characteristics consistent with an antisocial
personality, including an inability to learn from experience and a
tendency to be impulsive and to violate society's norms. Id. at
149-150. He testified further that Penry's low IQ scores underestimated
his alertness and understanding of what went on around him. Id.
at 146.
Dr. Felix Peebles also testified for
the State that Penry was legally sane at the time of the offense, and
had a "full-blown anti-social personality." Id. at 171. In
addition, Dr. Peebles testified that he personally diagnosed Penry as
being mentally retarded in 1973 and again in 1977, and that Penry "had a
very bad life generally, bringing up." Id. at 168-169. In Dr.
Peebles' view, Penry "had been socially and [p310]
emotionally deprived, and he had not learned to read and write
adequately." Id. at 169. Although they disagreed with the defense
psychiatrist over the extent and cause of Penry's mental limitations,
both psychiatrists for the State acknowledged that Penry was a person of
extremely limited mental ability, and that he seemed unable to learn
from his mistakes. Id. at 149, 172-173.
The jury rejected Penry's insanity
defense, and found him guilty of capital murder. Tex.Penal Code Ann.
§19.03 (1974 and Supp. 1989). The following day, at the close of the
penalty hearing, the jury decided the sentence to be imposed on Penry by
answering three "special issues":
(1) whether the conduct of the
defendant that caused the death of the deceased was committed
deliberately and with the reasonable expectation that the death of the
deceased or another would result;
(2) whether there is a
probability that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society; and
(3) if raised by the evidence,
whether the conduct of the defendant in killing the deceased was
unreasonable in response to the provocation, if any, by the deceased.
Tex.Code Crim.Proc.Ann., Art.
37.071(b) (Vernon 1981 and Supp. 1989). If the jury unanimously answers
"yes" to each issue submitted, the trial court must sentence the
defendant to death. Art. 37.071(c)-(e). Otherwise, the defendant is
sentenced to life imprisonment. Ibid.
Defense counsel raised a number of
objections to the proposed charge to the jury. With respect to the first
special issue, he objected that the charge failed to define the term "deliberately."
App. 210. With respect to the second special issue, he objected that the
charge failed to define the terms "probability," "criminal acts of
violence," and "continuing threat to society." Id. at 210-211.
Defense counsel [p311] also objected to the
charge because it failed to "authorize a discretionary grant of mercy
based upon the existence of mitigating circumstances" and because it
fail[ed] to require as a
condition to the assessment of the death penalty that the State show
beyond a reasonable doubt that any aggravating circumstances found to
exist outweigh any mitigating circumstances.
Id. at 211. In addition, the
charge failed to instruct the jury that it may take into consideration
all of the evidence whether aggravating or mitigating in nature which
was submitted in the full trial of the case. Id. at 212. Defense
counsel also objected that, in light of Penry's mental retardation,
permitting the jury to assess the death penalty in this case amounted to
cruel and unusual punishment prohibited by the Eighth Amendment. Id.
at 211.
These objections were overruled by
the trial court. The jury was then instructed that the State bore the
burden of proof on the special issues, and that, before any issue could
be answered "yes," all twelve jurors must be convinced by the evidence
beyond a reasonable doubt that the answer to that issue should be "yes."
Id. at 25. The jurors were further instructed that, in answering
the three special issues, they could consider all the evidence submitted
in both the guilt-innocence phase and the penalty phase of the trial.
Id. at 26. The jury charge then listed the three questions, with the
names of the defendant and the deceased inserted.
The jury answered "yes" to all three
special issues, and Penry was sentenced to death. The Texas Court of
Criminal Appeals affirmed his conviction and sentence on direct appeal.
Penry v. State, 691 S. W. 2d 636 (Tex. Crim.App. 1985). That
court held that terms such as "deliberately," "probability," and "continuing
threat to society" used in the special issues need not be defined in the
jury charge, because the jury would know their common meaning. Id.
at 653-654. The court concluded that Penry was allowed to present all
relevant mitigating evidence at the punishment hearing, and that there
was no constitutional infirmity in failing to [p312]
require the jury to find that aggravating circumstances outweighed
mitigating ones or in failing to authorize a discretionary grant of
mercy based upon the existence of mitigating circumstances. Id.
at 654. The court also held that imposition of the death penalty was not
prohibited by virtue of Penry's mental retardation. Id. at
654-655. This Court denied certiorari on direct review. Sub nom.
Penry v. Texas, 474 U.S. 1073 (1986).
Penry then filed this federal habeas
corpus petition challenging his death sentence. Among other claims,
Penry argued that he was sentenced in violation of the Eighth Amendment
because the trial court failed to instruct the jury on how to weigh
mitigating factors in answering the special issues, and failed to define
the term "deliberately." Penry also argued that it was cruel and unusual
punishment to execute a mentally retarded person. The District Court
denied relief, App. 234-273, and Penry appealed to the Court of Appeals
for the Fifth Circuit.
The Court of Appeals affirmed the
District Court's judgment. 832 F. 2d 915 (1987). The court stressed,
however, that it found considerable merit in Penry's claim that the jury
was not allowed to consider and apply all of his personal mitigating
circumstances in answering the Texas special issues. Although the jury
was presented with evidence that might mitigate Penry's personal
culpability for the crime, such as his mental retardation, arrested
emotional development, and abused background, the jury could not give
effect to that evidence by mitigating Penry's sentence to life
imprisonment. "Having said that it was a deliberate murder and that
Penry will be a continuing threat, the jury can say no more." Id.
at 920. In short, the court did not see how Penry's mitigating evidence,
under the instructions given, could be fully acted upon by the jury,
because "[t]here is no place for the jury to say ‘no' to the death
penalty" based on the mitigating force of those circumstances. Id.
at 925. Although the court questioned whether Penry was given the
individualized [p313] sentencing that the
Constitution requires, it ultimately concluded that prior Circuit
decisions required it to reject Penry's claims. Id. at 926. The
court also rejected Penry's contention that it was cruel and unusual
punishment to execute a mentally retarded person such as himself. Id.
at 918 (citing Brogdon v. Butler, 824 F. 2d 338, 341 (CA5 1987)).
We granted certiorari to resolve two
questions. 487 U.S. 1233 (1988). First, was Penry sentenced to death in
violation of the Eighth Amendment because the jury was not adequately
instructed to take into consideration all of his mitigating evidence and
because the terms in the Texas special issues were not defined in such a
way that the jury could consider and give effect to his mitigating
evidence in answering them? Second, is it cruel and unusual punishment
under the Eighth Amendment to execute a mentally retarded person with
Penry's reasoning ability?
II
A
Penry is currently
before the Court on his petition in federal court for a writ of habeas
corpus. Because Penry is before us on collateral review, we must
determine, as a threshold matter, whether granting him the relief he
seeks would create a "new rule." Teague v. Lane, 489 U.S. 288,
301 (1989). Under Teague, new rules will not be applied or
announced in cases on collateral review unless they fall into one of two
exceptions. Id. at 311-313.
Teague was not a capital
case, and the plurality opinion expressed no views regarding how the
retroactivity approach adopted in Teague would be applied in the
capital sentencing context. Id. at 314, n. 2. The plurality noted,
however, that a criminal judgment necessarily includes the sentence
imposed, and that collateral challenges to sentences
delay the enforcement of the
judgment at issue and decrease the possibility that "there will at
some point be the certainty that comes with an end to litigation."
Ibid. (quoting Sanders v.
[p314] United States, 373 U.S. 1, 25
(1963) (Harlan, J., dissenting)). See also Mackey v. United States,
401 U.S. 667, 690-695 (1971) (Harlan, J., concurring in judgments in
part and dissenting in part). In our view, the finality concerns
underlying Justice Harlan's approach to retroactivity are applicable in
the capital sentencing context, as are the two exceptions to his general
rule of nonretroactivity. See Teague, supra, at 311-313.
B
As we indicated in
Teague,
[i]n general . . . a case
announces a new rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government.
489 U.S. at 301. Or,
[t]o put it differently, a case
announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction became
final.
Ibid. (emphasis in original).
Teague noted that "[i]t is admittedly often difficult to
determine when a case announces a new rule." Ibid. Justice Harlan
recognized
the inevitable difficulties that
will arise in attempting "to determine whether a particular decision
has really announced a ‘new' rule at all, or whether it has simply
applied a well-established constitutional principle to govern a case
which is closely analogous to those which have been previously
considered in the prior case law."
Mackey, supra,
at 695 (opinion concurring in judgments in part and dissenting in part)
(quoting Desist v. United States, 394 U.S. 244, 263 (1969) (Harlan,
J., dissenting)). See generally Yates v. Aiken, 484 U.S. 211,
216-217 (1988) (concluding that Francis v. Franklin, 471 U.S. 307
(1985), did not announce a new rule, but was "merely an application of
the principle that governed our decision in Sandstrom v. Montana,
[442 U.S. 510 (1979),] which had been decided before petitioner's trial
took place").
Penry's conviction became final on
January 13, 1986, when this Court denied his petition for certiorari on
direct review of his conviction and sentence. Sub nom. Penry v.
Texas, supra. This Court's decisions in Lockett v. Ohio, 438
U.S. [p315] 586 (1978), and Eddings v.
Oklahoma, 455 U.S. 104 (1982), were rendered before his conviction
became final. Under the retroactivity principles adopted in Griffith
v. Kentucky, 479 U.S. 314 (1987), Penry is entitled to the benefit
of those decisions. Citing Lockett and Eddings, Penry
argues that he was sentenced to death in violation of the Eighth
Amendment because, in light of the jury instructions given, the jury was
unable to fully consider and give effect to the mitigating evidence of
his mental retardation and abused background, which he offered as the
basis for a sentence less than death. Penry thus seeks a rule that, when
such mitigating evidence is presented, Texas juries must, upon request,
be given jury instructions that make it possible for them to give effect
to that mitigating evidence in determining whether a defendant should be
sentenced to death. We conclude, for the reasons discussed below, that
the rule Penry seeks is not a "new rule" under Teague.
Penry does not
challenge the facial validity of the Texas death penalty statute, which
was upheld against an Eighth Amendment challenge in Jurek v. Texas,
428 U.S. 262 (1976). Nor does he dispute that some types of
mitigating evidence can be fully considered by the sentencer in the
absence of special jury instructions. See Franklin v. Lynaugh,
487 U.S. 164, 175 (1988) (plurality opinion); id. at 185-186 (O'CONNOR,
J., concurring in judgment). Instead, Penry argues that, on the facts of
this case, the jury was unable to fully consider and give effect to the
mitigating evidence of his mental retardation and abused background in
answering the three special issues. In our view, the relief Penry seeks
does not "impos[e] a new obligation" on the State of Texas. Teague,
supra, at 301. Rather, Penry simply asks the State to fulfill the
assurance upon which Jurek was based: namely, that the special
issues would be interpreted broadly enough to permit the sentencer to
consider all of the relevant mitigating evidence a defendant might
present in imposing sentence. [p316]
In Jurek, the joint opinion
of Justices Stewart, Powell, and STEVENS noted that the Texas statute
narrowed the circumstances in which the death penalty could be imposed
to five categories of murders. 428 U.S. at 268. Thus, although Texas had
not adopted a list of statutory aggravating factors that the jury must
find before imposing the death penalty, "its action in narrowing the
categories of murders for which a death sentence may ever be imposed
serves much the same purpose," id. at 270, and effectively "requires
the sentencing authority to focus on the particularized nature of the
crime." Id. at 271. To provide the individualized sentencing
determination required by the Eighth Amendment, however, the sentencer
must be allowed to consider mitigating evidence. Ibid. Indeed, as
Woodson v. North Carolina, 428 U.S. 280(1976), made clear,
in capital cases,
the fundamental respect for humanity underlying the Eighth Amendment .
. . requires consideration of the character and record of the
individual offender and the circumstances of the particular offense as
a constitutionally indispensable part of the process of inflicting the
penalty of death.
Id.
at 304 (plurality opinion).
Because the Texas death penalty
statute does not explicitly mention mitigating circumstances, but rather
directs the jury to answer three questions, Jurek reasoned that
the statute's constitutionality "turns on whether the enumerated
questions allow consideration of particularized mitigating factors." 428
U.S. at 272. Although the various terms in the special questions had yet
to be defined, the joint opinion concluded that the sentencing scheme
satisfied the Eighth Amendment on the assurance that the Texas Court of
Criminal Appeals would interpret the question concerning future
dangerousness so as to allow the jury to consider whatever mitigating
circumstances a defendant may be able to show, including a defendant's
prior criminal record, age, and mental or emotional state. Id. at
272-273. [p317]
Our decisions subsequent to Jurek
have reaffirmed that the Eighth Amendment mandates an individualized
assessment of the appropriateness of the death penalty. In Lockett v.
Ohio, 438 U.S. 586 (1978), a plurality of this Court held that the
Eighth and Fourteenth Amendments require that the sentencer
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 that the defendant proffers as a basis for a sentence less
than death.
Id.
at 604 (emphasis in original). Thus, the Court held unconstitutional the
Ohio death penalty statute which mandated capital punishment upon a
finding of one aggravating circumstance unless one of three statutory
mitigating factors was present.
Lockett underscored
Jurek's recognition that the constitutionality of the Texas scheme "turns
on whether the enumerated questions allow consideration of
particularized mitigating factors." Jurek, 428 U.S. at 272. The
plurality opinion in Lockett indicated that the Texas death
penalty statute had
survived the
petitioner's Eighth and Fourteenth Amendment attack [in Jurek]
because three Justices concluded that the Texas Court of Criminal
Appeals had broadly interpreted the second question -- despite its
facial narrowness -- so as to permit the sentencer to consider "whatever
mitigating circumstances" the defendant might be able to show.
438 U.S. at 607. Thus,
the Lockett plurality noted that neither the Texas statute upheld
in 1976 nor the statutes that had survived facial challenges in Gregg
v. Georgia, 428 U.S. 153 (1976), and Proffitt v. Florida, 428
U.S. 242 (1976),
clearly operated
at that time to prevent the sentencer from considering any aspect of
the defendant's character and record or any circumstances of his
offense as an independently mitigating factor.
Lockett, supra,
at 607. Cf. Hitchcock v. Dugger, 481 U.S. 393 (1987) (sustaining
"as applied" challenge to Florida death penalty statute); Godfrey
[p318] v. Georgia, 446 U.S. 420
(1980) (sustaining "as applied" challenge to Georgia death penalty
statute).
In Eddings v. Oklahoma, 455
U.S. 104 (1982), a majority of the Court reaffirmed that a sentencer may
not be precluded from considering, and may not refuse to consider, any
relevant mitigating evidence offered by the defendant as the basis for a
sentence less than death. In Eddings, the Oklahoma death penalty
statute permitted the defendant to introduce evidence of any mitigating
circumstance, but the sentencing judge concluded, as a matter of law,
that he was unable to consider mitigating evidence of the youthful
defendant's troubled family history, beatings by a harsh father, and
emotional disturbance. Applying Lockett, we held that
[j]ust as the
State may not by statute preclude the sentencer from considering any
mitigating factor, neither may the sentencer refuse to consider, as
a matter of law, any relevant mitigating evidence.
455 U.S. at 113-114 (emphasis
in original). In that case, "it was as if the trial judge had instructed
a jury to disregard the mitigating evidence [the defendant] proffered on
his behalf." Id. at 114.
Thus, at the time Penry's conviction
became final, it was clear from Lockett and Eddings that a
State could not, consistent with the Eighth and Fourteenth Amendments,
prevent the sentencer from considering and giving effect to evidence
relevant to the defendant's background or character or to the
circumstances of the offense that mitigate against imposing the death
penalty. Moreover, the facial validity of the Texas death penalty
statute had been upheld in Jurek on the basis of assurances that
the special issues would be interpreted broadly enough to enable
sentencing juries to consider all of the relevant mitigating evidence a
defendant might present. Penry argues that those assurances were not
fulfilled in his particular case because, without appropriate
instructions, the jury could not fully consider and give effect to the
mitigating evidence of his mental retardation and abused childhood in
rendering its sentencing decision. The rule [p319]
Penry seeks -- that when such mitigating evidence is presented, Texas
juries must, upon request, be given jury instructions that make it
possible for them to give effect to that mitigating evidence in
determining whether the death penalty should be imposed -- is not a "new
rule" under Teague, because it is dictated by Eddings and
Lockett. Moreover, in light of the assurances upon which Jurek
was based, we conclude that the relief Penry seeks does not "impos[e] a
new obligation" on the State of Texas. Teague, 489 U.S. at 301.
Underlying Lockett and
Eddings is the principle that punishment should be directly related
to the personal culpability of the criminal defendant. If the sentencer
is to make an individualized assessment of the appropriateness of the
death penalty,
evidence about
the defendant's background and character is relevant because of the
belief, long held by this society, that defendants who commit criminal
acts that are attributable to a disadvantaged background, or to
emotional and mental problems, may be less culpable than defendants
who have no such excuse.
California v.
Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J.,
concurring). Moreover, Eddings makes clear that it is not enough
simply to allow the defendant to present mitigating evidence to the
sentencer. The sentencer must also be able to consider and give effect
to that evidence in imposing sentence. Hitchcock v. Dugger, 481
U.S. 393 (1987). Only then can we be sure that the sentencer has treated
the defendant as a "uniquely individual human bein[g]," and has made a
reliable determination that death is the appropriate sentence. Woodson,
428 U.S. at 304, 305.
Thus, the
sentence imposed at the penalty stage should reflect a reasoned
moral response to the defendant's background, character, and crime.
California v.
Brown, supra, at 545 (O'CONNOR, J., concurring)
(emphasis in original). [p320]
Although Penry offered mitigating
evidence of his mental retardation and abused childhood as the basis for
a sentence of life imprisonment rather than death, the jury that
sentenced him was only able to express its views on the appropriate
sentence by answering three questions: Did Penry act deliberately when
he murdered Pamela Carpenter? Is there a probability that he will be
dangerous in the future? Did he act unreasonably in response to
provocation? The jury was never instructed that it could consider the
evidence offered by Penry as mitigating evidence, and that it
could give mitigating effect to that evidence in imposing sentence.
Like the petitioner in Franklin
v. Lynaugh,, Penry contends that, in the absence of his requested
jury instructions, the Texas death penalty statute was applied in an
unconstitutional manner by precluding the jury from acting upon the
particular mitigating evidence he introduced. Franklin was the
first case considered by this Court since Jurek to address a
claim concerning the treatment of mitigating evidence under the Texas
special issues. Like Jurek itself, Franklin did not
produce a majority opinion for the Court. The Franklin plurality,
and the two concurring Justices, concluded that Franklin was not
sentenced to death in violation of the Eighth Amendment because the jury
was free to give effect to his mitigating evidence of good behavior in
prison by answering "no" to the question on future dangerousness. 487
U.S. at 177 (plurality opinion); id. at 185 (O'CONNOR, J.,
concurring in judgment). Moreover, a majority agreed that "residual
doub[t]" as to Franklin's guilt was not a constitutionally mandated
mitigating factor. Id. at 173, and n. 6 (plurality opinion);
id. at 187-188 (O'CONNOR, J., concurring in judgment).
In Franklin,
however, the five concurring and dissenting Justices did not share the
plurality's categorical reading of Jurek. In the plurality's view,
Jurek had expressly and unconditionally upheld the manner in
which mitigating evidence is considered under the special issues. Id.
at 179-180, and [p321] n. 10. In contrast,
five Members of the Court read Jurek as not precluding a claim
that, in a particular case, the jury was unable to fully consider the
mitigating evidence introduced by a defendant in answering the special
issues. Id. at 183 (O'CONNOR, J., concurring in judgment); id.
at 199-200 (STEVENS, J., dissenting). Indeed, both the concurrence and
the dissent understood Jurek as resting fundamentally on the
express assurance that the special issues would permit the jury to fully
consider all the mitigating evidence a defendant introduced that was
relevant to the defendant's background and character and to the
circumstances of the offense. Moreover, both the concurrence and the
dissent stressed that
the right to have
the sentencer consider and weigh relevant mitigating evidence would be
meaningless unless the sentencer was also permitted to give effect to
its consideration
in imposing sentence.
Id. at 185 (O'CONNOR, J., concurring in judgment); id. at
199 (STEVENS, J., dissenting).
The concurrence in Franklin
concluded that there was no Eighth Amendment violation in that case
because Franklin's evidence of his good prison behavior had no clear
relevance to his character other than to demonstrate his ability to live
in a highly structured prison environment without endangering others.
Thus, the jury was able to give effect to the mitigating force of this
evidence in answering the second special issue. The concurrence noted,
however:
If . . .
petitioner had introduced mitigating evidence about his background or
character or the circumstances of the crime that was not relevant to
the special verdict questions, or that had relevance to the
defendant's moral culpability beyond the scope of the special verdict
questions, the jury instructions would have provided the jury with no
vehicle for expressing its "reasoned moral response" to that evidence.
If this were such a case, then we would have to decide whether the
jury's inability to give effect to that evidence amounted to an Eighth
Amendment violation.
Id.
at 185. [p322]
Penry argues that his mitigating
evidence of mental retardation and childhood abuse has relevance to his
moral culpability beyond the scope of the special issues, and that the
jury was unable to express its "reasoned moral response" to that
evidence in determining whether death was the appropriate punishment. We
agree. Thus, we reject the State's contrary argument that the jury was
able to consider and give effect to all of Penry's mitigating evidence
in answering the special issues without any jury instructions on
mitigating evidence.
The first special issue asks whether
the defendant acted "deliberately and with the reasonable expectation
that the death of the deceased . . . would result." Neither the Texas
Legislature nor the Texas Court of Criminal Appeals have defined the
term "deliberately," and the jury was not instructed on the term, so we
do not know precisely what meaning the jury gave to it. Assuming,
however, that the jurors in this case understood "deliberately" to mean
something more than that Penry was guilty of "intentionally" committing
murder, those jurors may still have been unable to give effect to
Penry's mitigating evidence in answering the first special issue.
Penry's mental retardation was
relevant to the question whether he was capable of acting "deliberately,"
but it also "had relevance to [his] moral culpability beyond the scope
of the special verdict questio[n]." Franklin, 487 U.S. at 185.
Personal culpability is not solely a function of a defendant's capacity
to act "deliberately." A rational juror at the penalty phase of the
trial could have concluded, in light of Penry's confession, that he
deliberately killed Pamela Carpenter to escape detection. Because Penry
was mentally retarded, however, and thus less able than a normal adult
to control his impulses or to evaluate the consequences of his conduct,
and because of his history of childhood abuse, that same juror could
also conclude that Penry was less morally "culpable than defendants who
have no such excuse," but [p323] who acted "deliberately"
as that term is commonly understood. California v. Brown, 479
U.S. at 545 (O'CONNOR, J., concurring). See also Skipper v. South
Carolina, 476 U.S. 1, 13-14 (1986) (Powell, J., concurring in
judgment) (evidence concerning a defendant's "emotional history . . .
bear[s] directly on the fundamental justice of imposing capital
punishment").
In the absence of
jury instructions defining "deliberately" in a way that would clearly
direct the jury to consider fully Penry's mitigating evidence as it
bears on his personal culpability, we cannot be sure that the jury was
able to give effect to the mitigating evidence of Penry's mental
retardation and history of abuse in answering the first special issue.
Without such a special instruction, a juror who believed that Penry's
retardation and background diminished his moral culpability and made
imposition of the death penalty unwarranted would be unable to give
effect to that conclusion if the juror also believed that Penry
committed the crime "deliberately." Thus, we cannot be sure that the
jury's answer to the first special issue reflected a "reasoned moral
response" to Penry's mitigating evidence.
The second special issue asks
whether there is a probability
that the defendant would commit criminal acts of violence that would
constitute a continuing threat to society.
The mitigating
evidence concerning Penry's mental retardation indicated that one effect
of his retardation is his inability to learn from his mistakes. Although
this evidence is relevant to the second issue, it is relevant only as an
aggravating factor, because it suggests a "yes" answer to the
question of future dangerousness. The prosecutor argued at the penalty
hearing that there was
a very strong
probability, based on the history of this defendant, his previous
criminal record, and the psychiatric testimony that we've had in this
case, that the defendant will continue to commit acts of this nature.
App. 214. Even in a
prison setting, the prosecutor [p324] argued,
Penry could hurt doctors, nurses, librarians, or teachers who worked in
the prison.
Penry's mental retardation and
history of abuse is thus a two-edged sword: it may diminish his
blameworthiness for his crime even as it indicates that there is a
probability that he will be dangerous in the future. As Judge Reavley
wrote for the Court of Appeals below:
What was the jury
to do if it decided that Penry, because of retardation, arrested
emotional development and a troubled youth, should not be executed? If
anything, the evidence made it more likely, not less likely, that the
jury would answer the second question yes. It did not allow the jury
to consider a major thrust of Penry's evidence as mitigating
evidence.
832 F. 2d at 925 (footnote
omitted) (emphasis in original). The second special issue, therefore,
did not provide a vehicle for the jury to give mitigating effect to
Penry's evidence of mental retardation and childhood abuse.
The third special issue asks
whether the
conduct of the defendant in killing the deceased was unreasonable in
response to the provocation, if any, by the deceased.
On this issue, the
State argued that Penry stabbed Pamela Carpenter with a pair of scissors
not in response to provocation, but "for the purpose of avoiding
detection." App. 215. Penry's own confession indicated that he did not
stab the victim after she wounded him superficially with a scissors
during a struggle, but rather killed her after her struggle had ended
and she was lying helpless. Even if a juror concluded that Penry's
mental retardation and arrested emotional development rendered him less
culpable for his crime than a normal adult, that would not necessarily
diminish the "unreasonableness" of his conduct in response to "the
provocation, if any, by the deceased." Thus, a juror who believed Penry
lacked the moral culpability to be sentenced to death could not express
that view in answering the third special issue if she also concluded
[p325] that Penry's action was not a
reasonable response to provocation.
The State contends, notwithstanding
the three interrogatories, that Penry was free to introduce and argue
the significance of his mitigating circumstances to the jury. In fact,
defense counsel did argue that, if a juror believed that Penry, because
of the mitigating evidence of his mental retardation and abused
background, did not deserve to be put to death, the juror should vote
"no" on one of the special issues even if it believed the State had
proved that the answer should be "yes." Thus, Penry's counsel stressed
the evidence of Penry's mental retardation and abused background, and
asked the jurors, "can you be proud to be a party to putting a man to
death with that affliction?" App. 222. He urged the jury to answer the
first special issue "no" because "it would be the just answer, and I
think it would be a proper answer." Id. at 223. As for the
prediction of the prosecution psychiatrist that Penry was likely to
continue to get into trouble, the defense argued:
That may be true.
But, a boy with this mentality, with this mental affliction, even
though you have found that issue against us as to insanity, I don't
think that there is any question in a single one of you juror's [sic]
minds that there is something definitely wrong, basically, with this
boy. And I think there is not a single one of you that doesn't believe
that this boy had brain damage. . . .
Id.
at 223-224. In effect, defense counsel urged the jury to
[t]hink about
each of those special issues and see if you don't find that we're
inquiring into the mental state of the defendant in each and every one
of them.
Id.
at 221.
In rebuttal, the prosecution
countered by stressing that the jurors had taken an oath to follow the
law, and that they must follow the instructions they were given in
answering the special issues:
You've all taken
an oath to follow the law, and you know what the law is. . . . In
answering these questions based on the evidence and following the law,
and that's all that [p326] I asked you to
do, is to go out and look at the evidence. The burden of proof is on
the State, as it has been from the beginning, and we accept that
burden. And I honestly believe that we have more than met that burden,
and that's the reason that you didn't hear Mr. Newman [defense
attorney] argue. He didn't pick out these issues and point out to you
where the State had failed to meet this burden. He didn't point out
the weaknesses in the State's case because, ladies and gentlemen, I
submit to you we've met our burden. . . . [Y]our job as jurors and
your duty as jurors is not to act on your emotions, but to act on the
law as the Judge has given it to you, and on the evidence that you
have heard in this courtroom, then answer those questions accordingly.
Id.
at 225-226. In light of the prosecutor's argument, and in the absence of
appropriate jury instructions, a reasonable juror could well have
believed that there was no vehicle for expressing the view that Penry
did not deserve to be sentenced to death based upon his mitigating
evidence.
The State conceded at oral argument
in this Court that, if a juror concluded that Penry acted deliberately
and was likely to be dangerous in the future, but also concluded that,
because of his mental retardation, he was not sufficiently culpable to
deserve the death penalty, that juror would be unable to give effect to
that mitigating evidence under the instructions given in this case. Tr.
of Oral Arg. 38. The State contends, however, that to instruct the jury
that it could render a discretionary grant of mercy, or say "no" to the
death penalty, based on Penry's mitigating evidence, would be to return
to the sort of unbridled discretion that led to Furman v. Georgia,
408 U.S. 238 (1972). We disagree.
To be sure, Furman held that,
in order to
minimize the risk that the death penalty would be imposed on a
capriciously selected group of offenders, the decision to impose it
had to be guided by standards so that the sentencing authority
[p327] would focus on the particularized
circumstances of the crime and the defendant.
Gregg v. Georgia,
428 U.S. 153, 199 (1976) (joint opinion of Stewart, Powell, and STEVENS,
JJ.). But as we made clear in Gregg, so long as the class of
murderers subject to capital punishment is narrowed, there is no
constitutional infirmity in a procedure that allows a jury to recommend
mercy based on the mitigating evidence introduced by a defendant. Id.
at 197-199, 203. As JUSTICE WHITE wrote in Gregg:
The Georgia
legislature has plainly made an effort to guide the jury in the
exercise of its discretion, while at the same time permitting the jury
to dispense mercy on the basis of factors too intangible to write into
a statute, and I cannot accept the naked assertion that the effort is
bound to fail. As the types of murders for which the death penalty may
be imposed become more narrowly defined and are limited to those which
are particularly serious or for which the death penalty is
particularly appropriate, as they are in Georgia by reason of the
aggravating-circumstance requirement, it becomes reasonable to expect
that juries -- even given discretion not to impose the death penalty
-- will impose the death penalty in a substantial portion of the cases
so defined. If they do, it can no longer be said that the penalty is
being imposed wantonly and freakishly or so infrequently that it loses
its usefulness as a sentencing device.
Id.
at 222 (opinion concurring in judgment).
In contrast to
the carefully defined standards that must narrow a sentencer's
discretion to impose the death sentence, the Constitution
limits a State's ability to narrow a sentencer's discretion to
consider relevant evidence that might cause it to decline to impose
the death sentence.
McCleskey v. Kemp,
481 U.S. 279, 304 (1987) (emphasis in original). Indeed, it is precisely
because the punishment should be directly related to the personal
culpability of the defendant that the jury must be allowed to consider
and give [p328] effect to mitigating
evidence relevant to a defendant's character or record or the
circumstances of the offense. Rather than creating the risk of an
unguided emotional response, full consideration of evidence that
mitigates against the death penalty is essential if the jury is to give
a "‘reasoned moral response to the defendant's background, character,
and crime.'" Franklin, 487 U.S. at 184 (O'CONNOR, J., concurring
in judgment) (quoting California v. Brown, 479 U.S. at 545 (O'CONNOR,
J., concurring)). In order to ensure "reliability in the determination
that death is the appropriate punishment in a specific case," Woodson,
428 U.S. at 305, the jury must be able to consider and give effect to
any mitigating evidence relevant to a defendant's background and
character or the circumstances of the crime.
In this case, in the absence of
instructions informing the jury that it could consider and give effect
to the mitigating evidence of Penry's mental retardation and abused
background by declining to impose the death penalty, we conclude that
the jury was not provided with a vehicle for expressing its "reasoned
moral response" to that evidence in rendering its sentencing decision.
Our reasoning in Lockett and Eddings thus compels a remand
for resentencing, so that we do not "risk that the death penalty will be
imposed in spite of factors which may call for a less severe penalty."
Lockett, 438 U.S. at 605; Eddings, 455 U.S. at 119 (O'CONNOR,
J., concurring).
When the choice
is between life and death, that risk is unacceptable and incompatible
with the commands of the Eighth and Fourteenth Amendments.
Lockett,
438 U.S. at 605.
IV
Penry's second claim
is that it would be cruel and unusual punishment, prohibited by the
Eighth Amendment, to execute a mentally retarded person like himself
with the reasoning capacity of a 7-year-old. He argues that, because of
their mental disabilities, mentally retarded people do not possess the
level of moral culpability to justify imposing the death
[p329] sentence. He also argues that there
is an emerging national consensus against executing the retarded, and
that existing procedural safeguards adequately protect the interests of
mentally retarded persons such as Penry.
A
Under Teague,
we address the retroactivity issue as a threshold matter because Penry
is before us on collateral review. 489 U.S. at 310. If we were to hold
that the Eighth Amendment prohibits the execution of mentally retarded
persons such as Penry, we would be announcing a "new rule." Id.
at 301. Such a rule is not dictated by precedent existing at the time
Penry's conviction became final. Moreover, such a rule would "brea[k]
new ground," and would impose a new obligation on the States and the
Federal Government. Ibid. (citing Ford v. Wainwight, 477
U.S. 399 (1986), which held that the Eighth Amendment prohibits the
execution of insane persons, as a case announcing a new rule).
In Teague, we concluded that
a new rule will not be applied retroactively to defendants on collateral
review unless it falls within one of two exceptions. Under the first
exception articulated by Justice Harlan, a new rule will be retroactive
if it places "‘certain kinds of primary, private individual conduct
beyond the power of the criminal lawmaking authority to proscribe.'"
Teague, 489 U.S. at 307 (quoting Mackey, 401 U.S. at 692 (Harlan,
J., concurring in judgments in part and dissenting in part)). Although
Teague reads this exception as focusing solely on new rules
according constitutional protection to an actor's primary conduct,
Justice Harlan did speak in terms of substantive categorical guarantees
accorded by the Constitution, regardless of the procedures followed.
This Court subsequently held that the Eighth Amendment, as a substantive
matter, prohibits imposing the death penalty on a certain class of
defendants because of their [p330] status,
Ford v. Wainwright, supra, at 410 (insanity), or because of the
nature of their offense, Coker v. Georgia, 433 U.S. 584 (1977)
(rape) (plurality opinion). In our view, a new rule placing a certain
class of individuals beyond the State's power to punish by death is
analogous to a new rule placing certain conduct beyond the State's power
to punish at all. In both cases, the Constitution itself deprives the
State of the power to impose a certain penalty, and the finality and
comity concerns underlying Justice Harlan's view of retroactivity have
little force. As Justice Harlan wrote: "There is little societal
interest in permitting the criminal process to rest at a point where it
ought properly never to repose." Mackey, 401 U.S. at 693.
Therefore, the first exception set forth in Teague should be
understood to cover not only rules forbidding criminal punishment of
certain primary conduct, but also rules prohibiting a certain category
of punishment for a class of defendants because of their status or
offense. Thus, if we held, as a substantive matter, that the Eighth
Amendment prohibits the execution of mentally retarded persons such as
Penry regardless of the procedures followed, such a rule would fall
under the first exception to the general rule of nonretroactivity and
would be applicable to defendants on collateral review. Accordingly, we
address the merits of Penry's claim.
B
The Eighth Amendment
categorically prohibits the infliction of cruel and unusual punishments.
At a minimum, the Eighth Amendment prohibits punishment considered cruel
and unusual at the time the Bill of Rights was adopted. Ford v.
Wainwright, supra, at 405; Solem v. Helm, 463 U.S. 277,
285-286 (1983). The prohibitions of the Eighth Amendment are not limited,
however, to those practices condemned by the common law in 1789. Ford,
supra, at 406; Gregg v. Georgia, 428 U.S. at 171. The
prohibition against cruel and unusual punishments also recognizes the "evolving
standards [p331] of decency that mark the
progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101
(1958) (plurality opinion); Ford, supra, at 406. In discerning
those "evolving standards," we have looked to objective evidence of how
our society views a particular punishment today. See Coker v.
Georgia, 433 U.S. at 593-597; Enmund v. Florida, 458 U.S.
782, 788-796 (1982). The clearest and most reliable objective evidence
of contemporary values is the legislation enacted by the country's
legislatures. We have also looked to data concerning the actions of
sentencing juries. Enmund, supra, at 794-796; Thompson v.
Oklahoma, 487 U.S. 815, 831 (1988) (plurality opinion).
It was well settled at common law
that "idiots," together with "lunatics," were not subject to punishment
for criminal acts committed under those incapacities. As Blackstone
wrote:
The second case
of a deficiency in will, which excuses from the guilt of crimes,
arises also from a defective or vitiated understanding, viz. in an
idiot or a lunatic. . . . [I]diots and lunatics are not
chargeable for their own acts, if committed when under these
incapacities: no, not even for treason itself. . . . [A] total idiocy,
or absolute insanity, excuses from the guilt, and of course from the
punishment, of any criminal action committed under such deprivation of
the senses. . . .
4 W. Blackstone,
Commentaries *24-*25 (emphasis in original). See also 1 W.
Hawkins, Pleas of the Crown 1-2 (7th ed. 1795) ("[T]hose who are under a
natural disability of distinguishing between good and evil, as . . .
ideots, and lunaticks are not punishable by any criminal prosecution
whatsoever"). Idiocy was understood as "a defect of understanding from
the moment of birth," in contrast to lunacy, which was "a partial
derangement of the intellectual faculties, the senses returning at
uncertain intervals." Id. at 2, n. 2.
There was no one definition of
idiocy at common law, but the term "idiot" was generally used to
describe persons who [p332] had a total lack
of reason or understanding, or an inability to distinguish between good
and evil. Hale wrote that a person who is deaf and mute from birth
is in presumption
of law an ideot . . . because he hath no possibility to understand
what is forbidden by law to be done, or under what penalties: but if
it can appear, that he hath the use of understanding, . . . then he
may be tried, and suffer judgment and execution.
M. Hale, Pleas of the
Crown 34 (1736) (footnote omitted). See also id. at 29 (citing A.
Fitzherbert, 2 Natura Brevium 233 (9th ed. 1794)); Trial of Edward
Arnold, 16 How.St.Tr. 695, 765 (Eng.1724) ("[A] man that is totally
deprived of his understanding and memory, and doth not know what he is
doing, no more than an infant, than a brute, or a wild beast, such a one
is never the object of punishment"); S. Glueck, Mental Disorder and the
Criminal Law 128-144 (1925).
The common law prohibition against
punishing "idiots" and "lunatics" for criminal acts was the precursor of
the insanity defense, which today generally includes "mental defect" as
well as "mental disease" as part of the legal definition of insanity.
See, e.g., American Law Institute, Model Penal Code §4.01, p. 61
(1985) ("A person is not responsible for criminal conduct if at the time
of such conduct as a result of mental disease or defect he lacks
substantial capacity either to appreciate the criminality [wrongfulness]
of his conduct or to conform his conduct to the requirements of law");
18 U.S. C. §17 (1982 ed., Supp. V) (it is an affirmative defense to
federal prosecution if "the defendant, as a result of a severe mental
disease or defect, was unable to appreciate the nature and quality or
the wrongfulness of his acts" at the time the offense was committed).
See generally Ellis & Luckasson, Mentally Retarded Criminal
Defendants, 53 Geo.Wash.L.Rev. 414, 432-444 (1985).
In its emphasis on a
permanent, congenital mental deficiency, the old common law notion of "idiocy"
bears some similarity to the modern definition of mental retardation.
Ellis & Luckasson, supra, at 417. The common law prohibition
[p333] against punishing "idiots" generally
applied, however, to persons of such severe disability that they lacked
the reasoning capacity to form criminal intent or to understand the
difference between good and evil. In the 19th and early 20th centuries,
the term "idiot" was used to describe the most retarded of persons,
corresponding to what is called "profound" and "severe" retardation
today. See AAMR, Classification in Mental Retardation 179 (H.
Grossman ed. 1983); id. at 9 ("idiots" generally had IQ of 25 or
below).
The common law prohibition against
punishing "idiots" for their crimes suggests that it may indeed be
"cruel and unusual" punishment to execute persons who are profoundly or
severely retarded and wholly lacking the capacity to appreciate the
wrongfulness of their actions. Because of the protections afforded by
the insanity defense today, such a person is not likely to be convicted
or face the prospect of punishment. See ABA Standards for
Criminal Justice 7-9.1, commentary, p. 460 (2d ed. 1980) (most retarded
people who reach the point of sentencing are mildly retarded). Moreover,
under Ford v. Wainwright, 477 U.S. 399 (1986), someone who is "unaware
of the punishment they are about to suffer and why they are to suffer it"
cannot be executed. Id. at 422 (Powell, J., concurring in part
and concurring in judgment).
Such a case is not
before us today. Penry was found competent to stand trial. In other
words, he was found to have the ability to consult with his lawyer with
a reasonable degree of rational understanding, and was found to have a
rational as well as factual understanding of the proceedings against him.
Dusky v. United States, 362 U.S. 402 (1960); App. 20-24. In
addition, the jury rejected his insanity defense, which reflected their
conclusion that Penry knew that his conduct was wrong, and was capable
of conforming his conduct to the requirements of the law. Tex.Penal Code
Ann. §8.01(a) (1974 and Supp. 1989).
Penry argues, however, that there is
objective evidence today of an emerging national consensus against
execution of [p334] the mentally retarded,
reflecting the "evolving standards of decency that mark the progress of
a maturing society." Trop v. Dulles, 356 U.S. at 101. Brief for
Petitioner 37-39. The federal Anti-Drug Abuse Act of 1988, Pub.L.
100-690, § 7001(1), 102 Stat. 4390, 21 U.S.C. §848(1) (1988 ed.),
prohibits execution of a person who is mentally retarded. Only one State,
however, currently bans execution of retarded persons who have been
found guilty of a capital offense. Ga.Code Ann. §17-7-131(j) (Supp.1988).
Maryland has enacted a similar statute which will take effect on July 1,
1989. Md.Ann.Code, Art. 27, §412(f)(1) (1989).
In contrast, in Ford v.
Wainwright, which held that the Eighth Amendment prohibits execution
of the insane, considerably more evidence of a national consensus was
available. No State permitted the execution of the insane, and 26 States
had statutes explicitly requiring suspension of the execution of a
capital defendant who became insane. Ford, 477 U.S. at 408, n. 2.
Other States had adopted the common law prohibition against executing
the insane. Ibid. Moreover, in examining the objective evidence
of contemporary standards of decency in Thompson v. Oklahoma, the
plurality noted that 18 States expressly established a minimum age in
their death penalty statutes, and all of them required that the
defendant have attained at least the age of 16 at the time of the
offense. 487 U.S. at 829, and n. 30. In our view, the two state statutes
prohibiting execution of the mentally retarded, even when added to the
14 States that have rejected capital punishment completely, do not
provide sufficient evidence at present of a national consensus.
Penry does not offer
any evidence of the general behavior of juries with respect to
sentencing mentally retarded defendants, nor of decisions of prosecutors.
He points instead to several public opinion surveys that indicate strong
public opposition to execution of the retarded. For example, a poll
taken in Texas found that 86% of those polled supported the death
penalty, but 73% opposed its application to the mentally
[p335] retarded. Reply Brief for Petitioner
6-7; Austin American Statesman, November 15, 1988, p. B3. A Florida poll
found 71% of those surveyed were opposed to the execution of mentally
retarded capital defendants, while only 12% were in favor. Brief for
Petitioner 38; App. 279. A Georgia poll found 66% of those polled
opposed to the death penalty for the retarded, 17% in favor, with 16%
responding that it depends how retarded the person is. Brief for
Petitioner 38; App. 283. In addition, the AAMR, the country's oldest and
largest organization of professionals working with the mentally retarded,
opposes the execution of persons who are mentally retarded. AAMR,
Resolution on Mental Retardation and the Death Penalty, January 1988,
App. to Brief for American Association on Mental Retardation et al.
as Amici Curiae la-2a (hereafter Amici Brief for AAMR
et al.). The public sentiment expressed in these and other polls and
resolutions may ultimately find expression in legislation, which is an
objective indicator of contemporary values upon which we can rely. But
at present, there is insufficient evidence of a national consensus
against executing mentally retarded people convicted of capital offenses
for us to conclude that it is categorically prohibited by the Eighth
Amendment.
C
Relying largely on
objective evidence such as the judgments of legislatures and juries, we
have also considered whether application of the death penalty to
particular categories of crimes or classes of offenders violates the
Eighth Amendment because 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 because it is "grossly
out of proportion to the severity of the crime." Coker v. Georgia,
433 U.S. at 592 (plurality opinion); Thompson v. Oklahoma, 487
U.S. at 833 (plurality opinion); Tison v. Arizona, 481 U.S. 137
(1987); Enmund v. Florida, 458 U.S. at 798-801. Gregg
noted [p336] that
[t]he death
penalty is said to serve two principal social purposes: retribution
and deterrence of capital crimes by prospective offenders.
Gregg v. Georgia,
428 U.S. at 183 (joint opinion of Stewart, Powell, and STEVENS, JJ.).
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,
supra, at 149. See also Enmund, supra,
at 825 (O'CONNOR, J., dissenting) (the Eighth Amendment concept of "proportionality
requires a nexus between the punishment imposed and the defendant's
blameworthiness").
Penry argues that execution of a
mentally retarded person like himself with a reasoning capacity of
approximately a 7-year-old would be cruel and unusual because it is
disproportionate to his degree of personal culpability. Brief for
Petitioner 49-50. Just as the plurality in Thompson reasoned that
a juvenile is less culpable than an adult for the same crime, 487 U.S.
at 835, Penry argues that mentally retarded people do not have the
judgment, perspective, and self-control of a person of normal
intelligence. In essence, Penry argues that, because of his diminished
ability to control his impulses, to think in long-range terms, and to
learn from his mistakes, he "is not capable of acting with the degree of
culpability that can justify the ultimate penalty," id. at 823.
The AAMR and other groups working
with the mentally retarded agree with Penry. They argue as amici
that all mentally retarded people, regardless of their degree of
retardation, have substantial cognitive and behavioral disabilities that
reduce their level of blameworthiness for a capital offense. Amici
Brief for AAMR et al. 5-9, 13-15. Amici do not argue that
people with mental retardation cannot be held responsible or punished
for criminal acts they commit. Rather, they contend that, because of
disability in the
areas of cognitive impairment, moral reasoning, control of impulsivity,
and the ability to understand basic relationships between cause and
effect,
mentally retarded
people cannot act [p337] with the level of
moral culpability that would justify imposition of the death sentence.
Id. at 4. Thus, in their view, execution of mentally retarded
people convicted of capital offenses serves no valid retributive purpose.
Id. at 19.
It is clear that mental retardation
has long been regarded as a factor that may diminish an individual's
culpability for a criminal act. See supra, at 331-333; ABA
Standards for Criminal Justice 7-9.3, commentary, at 463; State v.
Hall, 176 Neb. 295, 310, 125 N. W. 2d 918, 927 (1964). See
generally Ellis & Luckasson, 53 Geo.Wash.L.Rev. at 414. In its most
severe forms, mental retardation may result in complete exculpation from
criminal responsibility. Moreover, virtually all of the States with
death penalty statutes that list statutory mitigating factors include as
a mitigating circumstance evidence that
[t]he capacity of
the defendant to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was substantially
impaired.
[n2]
A number of States
explicitly mention "mental defect" in connection with such a mitigating
circumstance.
[n3] Indeed, as the Court holds in Part III of this
opinion, the sentencing body must be allowed to consider mental
retardation [p338] as a mitigating
circumstance in making the individualized determination whether death is
the appropriate punishment in a particular case.
On the record before the Court today,
however, I cannot conclude that all mentally retarded people of Penry's
ability -- by virtue of their mental retardation alone, and apart from
any individualized consideration of their personal responsibility --
inevitably lack the cognitive, volitional, and moral capacity to act
with the degree of culpability associated with the death penalty.
Mentally retarded persons are individuals whose abilities and
experiences can vary greatly. As the AAMR's standard work,
Classification in Mental Retardation, points out:
The term
mental retardation, as commonly used today, embraces a
heterogeneous population, ranging from totally dependent to nearly
independent people. Although all individuals so designated share the
common attributes of low intelligence and inadequacies in adaptive
behavior, there are marked variations in the degree of deficit
manifested and the presence or absence of associated physical
handicaps, stigmata, and psychologically disordered states.
Classification in
Mental Retardation, at 12. In addition to the varying degrees of mental
retardation, the consequences of a retarded person's mental impairment,
including the deficits in his or her adaptive behavior, "may be
ameliorated through education and habilitation." Ellis & Luckasson,
supra, at 424, n. 54. Although retarded persons generally have
difficulty learning from experience, Amici Brief for AAMR et
al. 7, some are fully "capable of learning, working, and living in
their communities." Id. at 6. See American Association on
Mental Deficiency, Monograph 6, Lives in Process: Mildly Retarded Adults
in a Large City (R. Edgerton ed. 1984). In light of the diverse
capacities and life experiences of mentally retarded persons, it cannot
be said on the record before us today that all mentally retarded
[p339] people, by definition, can never act
with the level of culpability associated with the death penalty.
Penry urges us to rely on the
concept of "mental age," and to hold that execution of any person with a
mental age of seven or below would constitute cruel and unusual
punishment. Tr. of Oral Arg. 22-25. Mental age is "calculated as the
chronological age of nonretarded children whose average IQ test
performance is equivalent to that of the individual with mental
retardation." Amici Brief for AAMR et al. 14, n. 6. See
D. Wechsler, The Measurement and Appraisal of Adult Intelligence 24-25
(4th ed. 1958). Such a rule should not be adopted today. First, there
was no finding below by the judge or jury concerning Penry's "mental age."
One of Penry's expert witnesses, Dr. Brown, testified that he estimated
Penry's "mental age" to be 6 1/2. App. 41. That same expert estimated
that Penry's "social maturity" was that of a 9- or 10-year-old. Ibid.
As a more general matter, the "mental age" concept, irrespective of its
intuitive appeal, is problematic in several respects. As the AAMR
acknowledges, "[t]he equivalence between nonretarded children and
retarded adults is, of course, imprecise." Amici Brief for AAMR
et al. 14, n. 6. The "mental age" concept may underestimate the
life experiences of retarded adults, while it may overestimate the
ability of retarded adults to use logic and foresight to solve problems.
Ibid. The mental age concept has other limitations as well.
Beyond the chronological age of 15 or 16, the mean scores on most
intelligence tests cease to increase significantly with age. Wechsler,
supra, at 26. As a result, "[t]he average mental age of the
average 20-year-old is not 20, but 15 years." Id. at 27. See
also In re Ramon M., 22 Cal. 3d 419, 429, 584 P. 2d 524, 531 (1978)
("[T]he ‘mental age' of the average adult under present norms is
approximately 16 years and 8 months").
Not surprisingly,
courts have long been reluctant to rely on the concept of mental age as
a basis for exculpating a defendant from criminal responsibility. See,
e.g., In re [p340] Ramon M., supra,
at 531; State v. Schilling, 95 N.J.L. 145, 148, 112 A. 400, 402
(1920); People v. Marquis, 344 Ill. 261, 267, 176 N. E. 314, 316
(1931); Chriswell v. State, 171 Ark. 255, 259, 283 S.W. 981, 983
(1926). Cf. Pickett v. State, 71 So. 2d 102, 107 (Ala.1954).
See generally Ellis & Luckasson, 53 Geo.Wash.L.Rev., at 435.
Moreover, reliance on mental age to measure the capabilities of a
retarded person for purposes of the Eighth Amendment could have a
disempowering effect if applied in other areas of the law. Thus, on that
premise, a mildly mentally retarded person could be denied the
opportunity to enter into contracts or to marry by virtue of the fact
that he had a "mental age" of a young child. In light of the inherent
problems with the mental age concept, and in the absence of better
evidence of a national consensus against execution of the retarded,
mental age should not be adopted as a line-drawing principle in our
Eighth Amendment jurisprudence.
In sum, mental retardation is a
factor that may well lessen a defendant's culpability for a capital
offense. But we cannot conclude today that the Eighth Amendment
precludes the execution of any mentally retarded person of Penry's
ability convicted of a capital offense simply by virtue of his or her
mental retardation alone. So long as sentencers can consider and give
effect to mitigating evidence of mental retardation in imposing sentence,
an individualized determination whether "death is the appropriate
punishment" can be made in each particular case. While a national
consensus against execution of the mentally retarded may someday emerge
reflecting the "evolving standards of decency that mark the progress of
a maturing society," there is insufficient evidence of such a consensus
today.
Accordingly, the judgment below is
affirmed in part and reversed in part, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
[p341]
significantly
subaverage general intellectual functioning existing concurrently with
deficits in adaptive behavior and manifested during the developmental
period.
American Association
on Mental Deficiency (now Retardation) (AAMR), Classification in Mental
Retardation 1 (H. Grossman ed. 1983). To be classified as mentally
retarded, a person generally must have an IQ of 70 or below. Id.
at 11. Under the AAMR classification system, individuals with IQ scores
between 50-55 and 70 have "mild" retardation. Individuals with scores
between 35-40 and 50-55 have "moderate" retardation. "Severely" retarded
people have IQ scores between 20-25 and 35-40, and "profoundly" retarded
people have scores below 20 or 25. Id. at 13. Approximately 89%
of retarded persons are "mildly" retarded. Ellis & Luckasson, Mentally
Retarded Criminal Defendants, 53 Geo.Wash.L.Rev. 414, 423 (1985).
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