Death Penalty Mitigation

Facts of the Case

In October 1986, a Texas jury convicted Robert Tennard of capital murder. The evidence presented at trial indicated Mr. Tennard and two accomplices killed two of his neighbors and robbed their home. Mr. Tennard stabbed one victim to death, and his accomplice killed the second victim with a hatchet.

To determine the appropriate penalty to impose, the jury had been instructed to consider two “special issues” used at that time in Texas to determine whether a sentence of life imprisonment or death would be imposed:

1. Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result (the “deliberateness special issue”)?

2. Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society (the “future‐dangerousness special issue”)?

During the penalty phase of the trial, Mr. Tennard's defense counsel presented one witness, Mr. Tennard's parole officer, who testified that the defendant's department of corrections record from a prior incarceration indicated he had an IQ of 67.

The government presented evidence of Mr. Tennard's prior conviction for rape, committed when he was 16. The rape victim testified she had escaped through a window when Mr. Tennard permitted her to take a bath after promising him she would not run away.

In his penalty phase closing argument, defense counsel relied on the defendant's low IQ score and the rape victim's testimony to suggest that Mr. Tennard's limited mental faculties and gullible nature mitigated his culpability. In rebuttal, the prosecution argued that Mr. Tennard's IQ level was not pertinent to the future‐dangerousness special issue because the reason that he became dangerous was not relevant.

The jury answered both special issues in the affirmative and sentenced Mr. Tennard to death. Mr. Tennard was unsuccessful on direct appeal and sought state post‐conviction relief. He argued that, in light of the instructions given to the jury in the penalty phase, his death penalty had been obtained in violation of the cruel and unusual punishment clause of the Eighth Amendment, as interpreted by the U.S. Supreme Court in Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I).

In Penry I, the Supreme Court held that the Texas capital sentencing scheme provided a constitutionally inadequate vehicle for jurors to consider and give effect to the mitigating evidence of mental retardation and childhood abuse. “It is not enough simply to allow the defendant to present mitigating evidence, the sentencer must also be able to consider and give effect to that evidence.” The Texas Court of Criminal Appeals rejected Mr. Tennard's Penry claim.

Mr. Tennard sought federal habeas corpus relief. The United Stated District Court denied his petition for habeas corpus relief and held that Mr. Tennard's single low score on an IQ test was not evidence that he was mentally retarded. Moreover, the district court concluded that, in any event, because his IQ evidence was before the jury, it had adequate means—via the two special issues—to give effect to the low IQ as mitigating evidence. The court subsequently denied Mr. Tennard a certificate of appealability (COA).

The United States Court of Appeals for the Fifth Circuit considered Mr. Tennard's argument that he was entitled to a COA. In the Fifth Circuit, the test applied to Penry claims involved the threshold inquiry of whether the petitioner presented “constitutionally relevant” mitigating evidence. In the Penry context, “constitutionally relevant” evidence means evidence of a “uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,” and evidence that “the criminal act was attributable to this severe permanent condition.”

The Fifth Circuit concluded that Mr. Tennard was not entitled to a COA for two reasons. First, it held that evidence of low IQ alone does not constitute a uniquely severe condition and rejected Mr. Tennard's claim that his evidence of low IQ was evidence of mental retardation. Second, the court held that even if the low IQ evidence constituted evidence of mental retardation, his Penry claim must fail because he did not show that the crime he committed was attributable to his low IQ.

Mr. Tennard filed a petition for certiorari. The Supreme Court granted the writ, vacated the judgment of the Fifth Circuit, and remanded for further consideration in light of Atkins v. Virginia, 536 U.S. 304 (2002). The Fifth Circuit took the remand to be for consideration of a substantive Atkins claim. It observed that Mr. Tennard never argued that the Eighth Amendment prohibits his execution and reinstated its prior panel opinion. After Mr. Tennard appealed again, the Supreme Court granted certiorari.

Issue

The main issue considered was whether the Fifth Circuit improperly denied Mr. Tennard's COA because he had made substantial showing of a violation of a constitutional right. Put another way, had Mr. Tennard “demonstrated that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong?”

Ruling

A COA should have been issued because “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” The Court reversed the Fifth Circuit's judgment and remanded the case.

Reasoning

Pursuant to 28 U.S.C. § 2253(c)(2), a COA should be issued if the applicant has “made a substantial showing of the denial of a constitutional right.” The Supreme Court has interpreted this to mean that the “petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.”

The Supreme Court noted that although the Fifth Circuit “paid lipservice” to the principles guiding the issuance of a COA, its actual reasoning proceeded along a very different course. Instead of reviewing the District Court's analysis of the Texas court decision, it invoked its own restrictive gloss on Penry I.

The Fifth Circuit held that, in reviewing a Penry claim, a court must determine whether the mitigating evidence introduced was “constitutionally relevant” and “beyond the effective reach of the jury.” To be “constitutionally relevant” the evidence must show a “uniquely severe permanent handicap with which the defendant was burdened through no fault of his own and the criminal act was attributable to this severe permanent condition.” Only when the court finds the proffered mitigating evidence to be “constitutionally relevant” will it determine whether it was within “the effective reach of the jury”. In denying Mr. Tennard's COA, the Fifth Circuit determined that the lower court had properly concluded he was precluded from a Penry claim because his low IQ bore no nexus to the crime, and thus the court need not consider whether his evidence had been within the “effective reach” of the jury.

The Supreme Court concluded the Fifth Circuit's “constitutional relevance” test in the Penry context “has no foundations in the decisions of this Court. Neither Penry nor its progeny screened mitigating evidence for ‘constitutional relevance’ before considering whether the jury instructions comported with the Eighth Amendment.”

In contrast to the Fifth Circuit's restrictive definition of “constitutional relevance,” prior Supreme Court cases have actually spoken in the “most expansive” terms on the issue and held that the “meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding.” The question, therefore, is whether the evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The Supreme Court noted that once this low threshold for relevance is met, the “Eighth Amendment requires the jury to be able to consider and give effect to” a capital defendant's mitigating evidence. The Court held that the Fifth Circuit's restrictive definition of “constitutional relevance” was incorrect. The Court further held that reasonable jurists would find the district court's disposition of Mr. Tennard's claim debatable or wrong and that he was thus entitled to a COA. Reasonable jurors could have concluded that the low IQ evidence was relevant mitigating evidence and that the state court's application of Penry to Mr. Tennard's case was unreasonable.

Dissent

In dissent, Justice Rehnquist argued that Mr. Tennard's IQ evidence was within the effective reach of the jury via the Texas “special issues” instructions. In separate dissents, Justices Scalia and Thomas reiterated their previously expressed views that unfettered sentencer discretion has no basis in the Constitution. Justices Rehnquist, Scalia, and Thomas would have affirmed the Fifth Circuit and denied a COA.

Discussion

This is the latest in a line of cases in which the Supreme Court continues to fashion and define its death penalty sentencing scheme.