Jury Must Be Able to Give Full Effect to All Mitigating Evidence in Death Penalty Sentencing
Abdul-Kabir v. Quarterman
Cole and his stepbrother robbed and killed a relative in 1987. After trial, the jury was asked to decide whether Cole’s conduct was deliberate, and whether there was a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The trail judge did not instruct the jury to consider mitigating evidence, including evidence of childhood neglect and abandonment and neurological impairment reducing his capacity for self control. To support Cole’s continuing threat to society his prior convictions for murder and sexual assault as well as his diary which, according to an expert, revealed a compulsive attraction to young boys and an obsession with criminal activity. The lower court denied Cole’s assignment of error that mitigating evidence was not able to be evaluated, but agreed that his appellate counsel had been ineffective for failing to challenge the absence of an instruction that the jury could consider mitigating evidence, and denied the argument that failure to so instruct the jury was error.
Under Pendry I when the defendant presents mitigating evidence the court must instruct the jury that it may give effect to that evidence in deciding whether to impose the death penalty. The fifth circuit interpreted that case to require that the evidence show (1) a uniquely severe permanent handicap with which the defendant is burdened, by no fault of his own, and (2) that the criminal act was attributable to this severe permanent condition. This interpretation was overturned in Dretke. On remand the Texas court decided that the questions presented to the jury allowed it to give full consideration and effect to the mitigating evidence. Under the AEDPA the question is whether this decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.”
In Woodson v. North Carolina a blanket imposition of the death penalty for all first degree murders was overturned for its failure to allow particularized consideration of the character and record of each defendant. In Proffit v. Florida, and Jurek v. Texas, death penalty statutes were upheld on the assumption that they allowed unrestricted admissibility of mitigating evidence. Then in Lockett v. Ohio the Court held that the Constitution requires that in all but the rarest kind of capital case the jury must be allowed to consider, as a mitigating factor, any aspect of the defendant’s character, record, or circumstances of the offense, when determining whether to impose the death penalty. This rule was later reaffirmed in Hitchcock v. Dugger, finding that restriction of mitigating evidence to statutorily defined types was unconstitutional. The result of these cases is that the imposition of the death penalty must be a moral judgment, and that a jury must not only be allowed to hear mitigating evidence, but must have the opportunity to give it effect.
“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.” To that end, special questions must invite the jury to consider all mitigating evidence in its answer. Neither the question of deliberateness nor of future dangerousness necessarily does so. The judge in this case decided that the issue of “whether the mitigating evidence can be sufficiently considered” was one that “must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given.” The Texas courts misunderstood the weight of precedents when they arrived at a different standard.
The lower court ruling violated Penry itself because first, even though the mitigating evidence was not persuasive on the special question issues, it was relevant to moral culpability. Second, the assumption that it would be appropriate to look to other testimony to determine whether the jury could give mitigating effect to the mitigating evidence is not supported by that decision. Third, that the jury could clearly weigh some mitigating evidence is not sufficient to satisfy the rule that it be able to give effect to all mitigating evidence. For example, in Johnson v. Texas, youth was a factor that is universally understood as applicable, and was specifically applicable in the special questions presented. Prosecutors’ arguments to the jury that they must put mitigating evidence out of their mind and go ‘just by the facts’ contravenes these cases and the rules they stand for.
The Upshot: The majority asserts that it does not endorse what Graham foreclosed, but only requires a special instruction, where mitigating evidence that does not fall within one of the special questions, that all mitigating evidence may be considered.
The Chief Justice, for the dissent, argues first that Penry I does not create “clearly established Federal law,” in the light of its surrounding and somewhat conflicting cases. Jurek, for example, upheld as facially constitutional Texas’ use of special questions, leaving open the possibility that some mitigating evidence would not be relevant to those issues. Franklin explained that this foreclosed the rule that the jury must be able to give independent effect to mitigating evidence, outside the special questions. The majority relies on Justice O’Connor’s observation that all mitigating evidence in that case fell within those questions. Penry I was an as applied challenge which found unconstitutional the jury’s inability to consider the defendant’s mental retardation, a fact that was relevant to moral culpability. Grahm foreclosed the requirement that there always be an additional special question, opening up the issue of additional mitigating evidence. Johnson then reaffirmed Graham’s limited view of Penry, relying on the Franklin plurality, and not the concurrence. The dissent in that case made the same point about how to read the Franklin concurrence and dissent as the majority does here, but that argument did not carry.
A reviewing state court “would see four dissenters in Graham and Johnson—including every remaining Member of the Penry I majority—arguing that the Court was failing to follow or sharply limiting Penry I in those cases. On the flip side, the state court would see four dissenters in Penry I—every one later joining the majorities in Graham and Johnson—suggesting that the Penry I majority departed from Jurek.” This does not create clearly established law in the context of AEDPA. Also, in Penry, the evidence had no mitigating effect, so whatever rule the majority attributes to that decision is questionable.
The majority holds that the jury instructions did not permit Cole’s evidence to have mitigating effect beyond the scope of the special issues, but that requirement was foreclosed in Graham and Johnson. Also, under the AEDPA, it is improper for the majority to draw support from cases that post-date the state court ruling.
Finally, the lower court’s decision as to the mitigating evidence’s effect on future dangerousness was a consideration of its character, not its weight. The Chief Justice concludes that “there is hope yet for the views expressed in this dissent, not simply down the road, but tun pro nuc. Encouraged by the majority’s determination that the future can change the past, I respectfully dissent.”
Justices Scalia, Thomas, and Alito, dissenting, “remain of the view that limiting a jury’s discretion to consider all mitigating evidence does not violate the Eighth Amendment.” That notwithstanding, the lower court rulings were not objectively unreasonable, as the Chief Justice notes. Worse yet, the majority overrules Johnson sub silentio and reinstates the Penry rule that juries must be able to give all mitigating evidence must full effect. Johnson is not distinguishable on the basis that the mitigating evidence was relevant to the special questions presented because constitutional rights do not turn on the beneficence of the prosecutor. Nor does prosecutorial style (apparently referring to the arguments made about the jury setting aside in their mind the mitigating evidence) have any bearing on whether the Eighth Amendment test is ‘some effect’ or ‘full effect.’ Moreover, youth in Johnson, did not require jurors to alter their answer to the special questions, just as the mitigating factors here do not have any bearing on the answers to the special questions in this case.
“[T]he meaning of the Eighth Amendment is to be determined not by the moral perceptions of the Justices du jour, but by the understanding of the American people who adopted it… this Court’s vacillating pronouncements have produced grossly inequitable treatment of those on death row.”
Under Pendry I when the defendant presents mitigating evidence the court must instruct the jury that it may give effect to that evidence in deciding whether to impose the death penalty. The fifth circuit interpreted that case to require that the evidence show (1) a uniquely severe permanent handicap with which the defendant is burdened, by no fault of his own, and (2) that the criminal act was attributable to this severe permanent condition. This interpretation was overturned in Dretke. On remand the Texas court decided that the questions presented to the jury allowed it to give full consideration and effect to the mitigating evidence. Under the AEDPA the question is whether this decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.”
In Woodson v. North Carolina a blanket imposition of the death penalty for all first degree murders was overturned for its failure to allow particularized consideration of the character and record of each defendant. In Proffit v. Florida, and Jurek v. Texas, death penalty statutes were upheld on the assumption that they allowed unrestricted admissibility of mitigating evidence. Then in Lockett v. Ohio the Court held that the Constitution requires that in all but the rarest kind of capital case the jury must be allowed to consider, as a mitigating factor, any aspect of the defendant’s character, record, or circumstances of the offense, when determining whether to impose the death penalty. This rule was later reaffirmed in Hitchcock v. Dugger, finding that restriction of mitigating evidence to statutorily defined types was unconstitutional. The result of these cases is that the imposition of the death penalty must be a moral judgment, and that a jury must not only be allowed to hear mitigating evidence, but must have the opportunity to give it effect.
“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.” To that end, special questions must invite the jury to consider all mitigating evidence in its answer. Neither the question of deliberateness nor of future dangerousness necessarily does so. The judge in this case decided that the issue of “whether the mitigating evidence can be sufficiently considered” was one that “must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given.” The Texas courts misunderstood the weight of precedents when they arrived at a different standard.
The lower court ruling violated Penry itself because first, even though the mitigating evidence was not persuasive on the special question issues, it was relevant to moral culpability. Second, the assumption that it would be appropriate to look to other testimony to determine whether the jury could give mitigating effect to the mitigating evidence is not supported by that decision. Third, that the jury could clearly weigh some mitigating evidence is not sufficient to satisfy the rule that it be able to give effect to all mitigating evidence. For example, in Johnson v. Texas, youth was a factor that is universally understood as applicable, and was specifically applicable in the special questions presented. Prosecutors’ arguments to the jury that they must put mitigating evidence out of their mind and go ‘just by the facts’ contravenes these cases and the rules they stand for.
The Upshot: The majority asserts that it does not endorse what Graham foreclosed, but only requires a special instruction, where mitigating evidence that does not fall within one of the special questions, that all mitigating evidence may be considered.
The Chief Justice, for the dissent, argues first that Penry I does not create “clearly established Federal law,” in the light of its surrounding and somewhat conflicting cases. Jurek, for example, upheld as facially constitutional Texas’ use of special questions, leaving open the possibility that some mitigating evidence would not be relevant to those issues. Franklin explained that this foreclosed the rule that the jury must be able to give independent effect to mitigating evidence, outside the special questions. The majority relies on Justice O’Connor’s observation that all mitigating evidence in that case fell within those questions. Penry I was an as applied challenge which found unconstitutional the jury’s inability to consider the defendant’s mental retardation, a fact that was relevant to moral culpability. Grahm foreclosed the requirement that there always be an additional special question, opening up the issue of additional mitigating evidence. Johnson then reaffirmed Graham’s limited view of Penry, relying on the Franklin plurality, and not the concurrence. The dissent in that case made the same point about how to read the Franklin concurrence and dissent as the majority does here, but that argument did not carry.
A reviewing state court “would see four dissenters in Graham and Johnson—including every remaining Member of the Penry I majority—arguing that the Court was failing to follow or sharply limiting Penry I in those cases. On the flip side, the state court would see four dissenters in Penry I—every one later joining the majorities in Graham and Johnson—suggesting that the Penry I majority departed from Jurek.” This does not create clearly established law in the context of AEDPA. Also, in Penry, the evidence had no mitigating effect, so whatever rule the majority attributes to that decision is questionable.
The majority holds that the jury instructions did not permit Cole’s evidence to have mitigating effect beyond the scope of the special issues, but that requirement was foreclosed in Graham and Johnson. Also, under the AEDPA, it is improper for the majority to draw support from cases that post-date the state court ruling.
Finally, the lower court’s decision as to the mitigating evidence’s effect on future dangerousness was a consideration of its character, not its weight. The Chief Justice concludes that “there is hope yet for the views expressed in this dissent, not simply down the road, but tun pro nuc. Encouraged by the majority’s determination that the future can change the past, I respectfully dissent.”
Justices Scalia, Thomas, and Alito, dissenting, “remain of the view that limiting a jury’s discretion to consider all mitigating evidence does not violate the Eighth Amendment.” That notwithstanding, the lower court rulings were not objectively unreasonable, as the Chief Justice notes. Worse yet, the majority overrules Johnson sub silentio and reinstates the Penry rule that juries must be able to give all mitigating evidence must full effect. Johnson is not distinguishable on the basis that the mitigating evidence was relevant to the special questions presented because constitutional rights do not turn on the beneficence of the prosecutor. Nor does prosecutorial style (apparently referring to the arguments made about the jury setting aside in their mind the mitigating evidence) have any bearing on whether the Eighth Amendment test is ‘some effect’ or ‘full effect.’ Moreover, youth in Johnson, did not require jurors to alter their answer to the special questions, just as the mitigating factors here do not have any bearing on the answers to the special questions in this case.
“[T]he meaning of the Eighth Amendment is to be determined not by the moral perceptions of the Justices du jour, but by the understanding of the American people who adopted it… this Court’s vacillating pronouncements have produced grossly inequitable treatment of those on death row.”
posted by Oliver W. Jones @ 11:09 PM
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