# Penry v. Lynaugh
## Concurring Opinions

    Stevens
    Scalia
United States Supreme Court
492 U.S. 302
Penry v. Lynaugh
No. 87-6177 Argued: Jan. 11, 1989. --- Decided: June 26, 1989
Syllabus
Petitioner was charged with capital murder in Texas state court. He was found competent to stand trial, although a psychologist testified that he was mildly to moderately retarded and had the mental age of a 61/2-year-old. At the guilt-innocence phase of the trial, petitioner raised an insanity defense and presented psychiatric testimony that he suffered from a combination of organic brain damage and moderate retardation which resulted in poor impulse control and an inability to learn from experience. His evidence also indicated that he had been abused as a child. The State introduced testimony that petitioner was legally sane but had an antisocial personality. The jury rejected petitioner's insanity defense and found him guilty of capital murder. At the penalty phase of the trial, the sentencing jury was instructed to consider all the evidence introduced at trial in answering the following "special issues": (1) whether petitioner's conduct was committed deliberately and with the reasonable expectation that death would result; (2) whether there was a probability that he would be a continuing threat to society; and (3) whether the killing was unreasonable in response to any provocation by the victim. The trial court rejected petitioner's request for jury instructions defining the terms in the special issues and authorizing a grant of mercy based upon the existence of mitigating circumstances. The jury answered "yes" to each special issue, and, as required by Texas law, the court therefore sentenced petitioner to death. A "no" answer to any of the special issues would have required a sentence of life imprisonment. The Texas Court of Criminal Appeals affirmed, rejecting petitioner's contentions that his death sentence violated the Eighth Amendment first, because the jury was not adequately instructed to consider all of his mitigating evidence and because the special issues' terms were not defined in such a way that the jury could consider and give effect to that evidence in answering them; and, second, because it is cruel and unusual punishment to execute a mentally retarded person with petitioner's mental ability. After this Court denied certiorari on direct review, the Federal District Court and the Court of Appeals upheld petitioner's death sentence in habeas corpus proceedings. Although it denied him relief, the Court of Appeals nevertheless found considerable merit in petitioner's claim that his mitigating evidence of mental retardation and childhood abuse could not be given effect by the jury, under the instructions given, in answering the special issues.
Held: The judgment is affirmed in part and reversed in part, and the case is remanded.
832 F.2d 915, (CA5 1987), affirmed in part, reversed in part, and remanded.
Justice O'CONNOR delivered the opinion of the Court with respect to Parts I, II-A, II-B, III, IV-A, and IV-B, concluding that:
1. Granting petitioner relief on his claim that when mitigating evidence of mental retardation and an abused childhood is presented, Texas juries must, upon request, be given instructions that allow them to give effect to that mitigating evidence in determining whether to impose the death penalty, would not create a "new rule" which, under Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334, may not generally be applied or announced in cases on collateral review. Pp. 313-319.
(a) The Teague rule of nonretroactivity and its two exceptions are applicable in the capital sentencing context. A criminal judgment includes the sentence imposed, and collateral challenges to sentences foster delay and undermine the finality concerns underlying Teague ¬ß rule of nonretroactivity. P. 313-314.
(b) Under Teague, a case announces a "new rule" when it breaks new ground or imposes a new obligation on the States or the Federal Government, or if the result is not dictated by precedent which existed at the time the defendant's conviction became final. 489 U.S., at 301, 109 S.Ct. at 1070. Here, since Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1, were decided before petitioner's conviction became final when this Court denied his certiorari petition on direct review, he is entitled to the benefit of those decisions under Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649. The rule that petitioner seeks does not impose a new obligation on Texas because Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, upheld the Texas death penalty statute on the basis of assurances that the special issues would be interpreted broadly enough to permit the jury to consider all of the relevant mitigating evidence a defendant might present in imposing sentence. Moreover, the rule that petitioner seeks in this case is dictated by Eddings and Lockett, which established that a State cannot, 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 mitigates against imposing the death penalty. Pp. 314-319.
2. The absence of instructions informing the jury that it could consider and give effect to petitioner's mitigating evidence of mental retardation and abused background by declining to impose the death penalty compels the conclusion that the jury was not provided with a vehicle for expressing its "reasoned moral response" to that evidence in rendering its sentencing decision, as is required by the Eighth and Fourteenth Amendments under Lockett, Eddings, and subsequent decisions. Those decisions are based on the principle that punishment must be directly related to the defendant's personal culpability, and that a defendant who commits crimes attributable to a disadvantaged background or emotional and mental problems may be less culpable than one who has no such excuse. Here, although petitioner was permitted to introduce and argue the significance of his mitigating evidence to the jury, the jury instructions did not permit the jury to give effect to that evidence in answering the three special issues. As to the first such issue, without a special instruction defining "deliberately" in a way that would clearly direct the jury to fully consider petitioner's mitigating evidence as it bears on his moral culpability, a juror who believed that that evidence made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that petitioner committed the crime "deliberately." Nor did the second special issue provide a vehicle for the jury to give mitigating effect to petitioner's evidence of mental retardation and childhood abuse; to the contrary, the evidence concerning his inability to learn from his mistakes by virtue of his mental retardation actually suggests that he will be dangerous in the future. Although such evidence may lessen his blameworthiness, it made an affirmative answer to the second issue more likely. Furthermore, a juror who believed that petitioner lacked the moral culpability to be sentenced to death could not express that view in answering the third special issue if the juror also believed that his conduct was not a reasonable response to provocation by the victim. There is no merit to the State's contention that to instruct the jury that it could decline to impose the death penalty based on petitioner's mitigating evidence would allow it the sort of unbridled discretion prohibited by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. As Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, made clear, 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. Furthermore, because the punishment imposed should be directly related to the personal culpability of the defendant, the sentencer must be allowed to consider and give effect to mitigating evidence relevant to a defendant's background, character, and crime. Full consideration of such mitigating evidence enhances the reliability of the jury's sentencing decision. Pp. 319-328.
3. The Eighth Amendment does not categorically prohibit the execution of mentally retarded capital murderers of petitioner's reasoning ability. Pp. 328-335.
(a) Although granting petitioner relief on this issue would create a "new rule" within the meaning of Teague, supra, that rule would fall within the first exception to Teague ¬ß general rule of nonretroactivity. That exception applies not only to new rules that place certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. It also applies to new rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. Cf., e.g., Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335. Pp. 329-330.
(b) The Eighth Amendment's categorical prohibition upon the infliction of cruel and unusual punishment applies to practices condemned by the common law at the time the Bill of Rights was adopted, as well as to punishments which offend our society's evolving standards of decency as expressed in objective evidence of legislative enactments and the conduct of sentencing juries. Since the common law prohibited the punishment of "idiots"-which term was generally used to describe persons totally lacking in reason, understanding, or the ability to distinguish between good and evil-it may indeed be "cruel and unusual punishment" to execute persons who are profoundly or severely retarded and wholly lacking in the capacity to appreciate the wrongfulness of their actions. Such persons, however, are not likely to be convicted or face the prospect of punishment today, since the modern insanity defense generally includes "mental defect" as part of the legal definition of insanity, and since Ford v. Wainwright, supra, prohibits the execution of persons who are unaware of their punishment and why they must suffer it. Moreover, petitioner is not such a person, since the jury (1) found him competent to stand trial and therefore to have a rational as well as factual understanding of the proceedings; and (2) rejected his insanity defense, thereby reflecting the conclusion that he knew his conduct was wrong and was capable of conforming it to the requirements of law. Nor is there sufficient objective evidence today of a national consensus against executing mentally retarded capital murderers, since petitioner has cited only one state statute that explicitly bans that practice and has offered no evidence of the general behavior of juries in this regard. Opinion surveys indicating strong public opposition to such executions do not establish a societal consensus, absent some legislative reflection of the sentiment expressed therein. Pp. 330-335.
Justice O'CONNOR concluded in Part IV-C that, on the present record, it cannot be said that executing capital murderers who are mentally retarded violates the Eighth Amendment's proportionality requirement. To be sure, retardation has long been regarded as a factor that may diminish culpability, and, in its most severe form, may result in complete exculpation. Moreover, most States with death penalty statutes that list mitigating factors include reduced mental capacity as a mitigating circumstance, and this Court holds today that the sentencing body must be allowed to consider retardation in making the individualized determination whether the eath penalty is appropriate. Mentally retarded persons, however, are individuals whose abilities and behavioral deficits can vary greatly depending on the degree of their retardation, their life experience, and the ameliorative effects of education and habilitation. On the present record, it cannot be said that all mentally retarded people of petitioner'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. Moreover, the concept of "mental age" is an insufficient basis for a categorical Eighth Amendment rule, since it is imprecise, does not adequately account for individuals' varying experiences and abilities, ceases to change after a person reaches the chronological age of 15 or 16, and could have a disempowering effect if applied to retarded persons in other areas of the law, such as the opportunity to enter contracts or to marry. Pp. 335-340.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and IV-A, the opinion of the Court with respect to Parts II-B and III, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, the opinion of the Court with respect to Parts II-A and IV-B, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Part IV-C. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 341. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN, J., joined, post, p. 349. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and KENNEDY, JJ., joined, post, p. 350.
Curtis C. Mason, Huntsville, Tex., for petitioner.
Charles A. Palmer, Austin, Tex., for respondent.

## Notes

* The Syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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