Penry v. Lynaugh

492 U.S. 302 (1989)
http://laws.findlaw.com/US/492/302.html
Oral arguments can be found at: http://www.oyez.org
Vote: 5 (Kennedy, O’Connor, Rehnquist, Scalia, White)
          4 (Blackmun, Brennan, Marshall, Stevens)
Opinion of the Court: O’Connor
Opinion Concurring in Part and Dissenting in Part: Brennan, Scalia, Stevens

Pamela Carpenter was brutally raped, beaten, and stabbed with a pair of scissors by an intruder in her Livingston, Texas, home. Although she died while receiving emergency medical treatment, Carpenter was able to provide a description of her assailant. Local sheriff’s deputies suspected Johnny Penry, a 22-year-old man who had recently been released from prison where he was serving a sentence for rape. Penry was soon arrested and gave two incriminating statements. Authorities charged him with capital murder.

Although Penry was found competent to stand trial, a clinical psychologist testified that he was mildly mentally retarded, a condition likely caused by brain trauma at birth. His estimated IQ was 54. Penry had the intellectual level of a 6½-year-old child and the social maturity of a 10-year-old. There was also evidence that he had been physically abused as a child. Additional mental health experts found him able to distinguish right from wrong, but identified him as having an anti-social personality and problems with impulse control. Rejecting his attorney’s claim of insanity, a jury found Penry guilty.

At the sentencing phase of the trial, the jurors were instructed to focus on three “special issues” (or, aggravating factors) specified by state law: (1) were Penry’s actions deliberate and committed with the reasonable expectation that they would result in death? (2) did Penry pose a continuing threat to society? (3) were Penry’s actions an unreasonable response to any provocation by the victim? Penry’s attorneys objected to the judge’s instructions on several grounds, including the failure to instruct the jurors regarding their consideration of mitigating factors, including Penry’s mental retardation. The judge rejected these objections. The jury found the presence of all three factors, and Penry was sentenced to death. His subsequent appeals and habeas corpus petitions were unsuccessful.

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. . . .

Underlying Lockett [v. Ohio (1978)] and Eddings [v. Oklahoma (1982)] 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 (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. 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 [v. North Carolina (1976)]. "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 (O'CONNOR, J., concurring).

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.

. . . 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. . . .

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. . . .

. . . [I]n 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. . . .

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. "When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments." Lockett.

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 sentence. He also argues that there is an emerging national consensus against executing the mentally retarded. The State responds that there is insufficient evidence of a national consensus against executing the retarded, and that existing procedural safeguards adequately protect the interests of mentally retarded persons such as Penry.

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 [1986]; Solem v. Helm (1983). The prohibitions of the Eighth Amendment are not limited, however, to those practices condemned by the common law in 1789. The prohibition against cruel and unusual punishments also recognizes the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles (1958). In discerning those "evolving standards," we have looked to objective evidence of how our society views a particular punishment today. 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 [v. Florida (1982)], Thompson v. Oklahoma (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. . . .

There was no one definition of idiocy at common law, but the term "idiot" was generally used to describe persons who had a total lack of reason or understanding, or an inability to distinguish between good and evil. . . .

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.

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. . . .

. . . 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. 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.

Penry argues, however, that there is objective evidence today of an emerging national consensus against execution of the mentally retarded, reflecting the "evolving standards of decency that mark the progress of a maturing society." The federal Anti-Drug Abuse Act of 1988 prohibits execution of a person who is mentally retarded. Only one State [Georgia], however, currently bans execution of retarded persons who have been found guilty of a capital offense. Maryland has enacted a similar statute which will take effect on July 1, 1989.

In contrast, in Ford v. Wainwright [1986], 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. Other States had adopted the common law prohibition against executing the insane. Moreover, in examining the objective evidence of contemporary standards of decency in Thompson v. Oklahoma [1988], 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. 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. . . . 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. 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.

It is clear that mental retardation has long been regarded as a factor that may diminish an individual's culpability for a criminal act. 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." A number of States explicitly mention "mental defect" in connection with such a mitigating circumstance. Indeed, as the Court holds in Part III of this opinion, the sentencing body must be allowed to consider mental retardation 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. . . .

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." Although retarded persons generally have difficulty learning from experience, some are fully "capable of learning, working, and living in their communities." 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 people, by definition, can never act with the level of culpability associated with the death penalty. . . .

. . . [M]ental 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.

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. . . .

In light of [the] clinical definition of mental retardation, I cannot agree that the undeniable fact that mentally retarded persons have "diverse capacities and life experiences," 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." This is true even of the "highest functioning individuals in the `mild' retardation category," and of course of those like Penry who cognitive and behavioral disabilities place them on the borderline between mild and moderate retardation. 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." Though individuals, particularly those who are mildly retarded, may be quite capable of overcoming these limitations to the extent of being able to "maintain themselves independently or semi-independently in the community," nevertheless, the mentally retarded by definition "have a reduced ability to cope with and function in the everyday world." 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. . . .

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 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.

There is 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. . . .

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.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY join, concurring in part and dissenting in part.

. . . [O]ur law regarding capital sentencing has sought to strike a balance between complete discretion, which produces "wholly arbitrary and capricious action," Gregg, and no discretion at all, which prevents the individuating characteristics of the defendant and of the crime to be taken into account. That is why, in Jurek [v. Texas (1976)], we did not regard the Texas Special Issues as inherently bad, but to the contrary thought them a desirable means of "focus[ing] the jury's objective consideration of the particularized circumstances.". . . In providing for juries to consider all mitigating circumstances insofar as they bear upon (1) deliberateness, (2) future dangerousness, and (3) provocation, it seems to me Texas had adopted a rational scheme that meets the two concerns of our Eighth Amendment jurisprudence. The Court today demands that it be replaced, however, with a scheme that simply dumps before the jury all sympathetic factors bearing upon the defendant's background and character, and the circumstances of the offense, so that the jury may decide without further guidance whether he "lacked the moral culpability to be sentenced to death," "did not deserve to be sentenced to death," or "was not sufficiently culpable to deserve the death penalty." The Court seeks to dignify this by calling it a process that calls for a "reasoned moral response," -- but reason has nothing to do with it, the Court having eliminated the structure that required reason. It is an unguided, emotional "moral response" that the Court demands be allowed -- an outpouring of personal reaction to all the circumstances of a defendant's life and personality, an unfocused sympathy. Not only have we never before said the Constitution requires this, but the line of cases following Gregg sought to eliminate precisely the unpredictability it produces.

The Court cannot seriously believe that rationality and predictability can be achieved, and capriciousness avoided, by "`narrow[ing] a sentencer's discretion to impose the death sentence,'" but expanding his discretion "`to decline to impose the death sentence.'" The decision whether to impose the death penalty is a unitary one; unguided discretion not to impose is unguided discretion to impose as well. In holding that the jury had to be free to deem Penry's mental retardation and sad childhood relevant for whatever purpose it wished, the Court has come full circle, not only permitting but requiring what Furman once condemned. "Freakishly" and "wantonly" [Furman] have been rebaptized "reasoned moral response." I do not think the Constitution forbids what the Court imposes here, but I am certain it does not require it.

I respectfully dissent.