On petition for writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit.
The application for stay of execution of the sentence of death
scheduled for Friday, January 10, 1986, presented to THE CHIEF
JUSTICE and by him referred to the Court is denied. The petition
for a writ of certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
I adhere to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 227, 2950, 49 L. Ed. 2d 859 (1976) (BRENNAN, J.,
dissenting). Accordingly, I would vacate the death sentence and
remand the case so that the state court can determine what
sentence-other than death-may be appropriate.
In addition, this case affords us an opportunity to address the
important question whether an accused may, consistent with the
Eighth and Fourteenth Amendments, be sentenced to death for a
capital offense he committed while a juvenile. Although "[c]rimes
committed by youths may be just as harmful to victims as those
committed by older persons, . . . they deserve less punishment
because adolescents may have less capacity to control their conduct
and to think in long-range terms than adults." Twentieth
Page 474 U.S.
1039 , 1040
Century Fund Task Force on Sentencing Policy Toward Young
Offenders, Confronting Youth Crime 7 (1978). As we stated in
Eddings v. Oklahoma,
455 U.S. 104 (1982):
"[Youth] is a time and condition of
life when a person may be most susceptible to influence and to
psychological damage. Our history is replete with laws and judicial
recognition that minors, especially in their earlier years,
generally are less mature and responsible than adults. Particularly
'during the formative years of childhood and adolescence, minors
often lack the experience, perspective, and judgment' expected of
adults. Bellotti v. Baird,
443 U.S.
622, 635, 3043 (1979)." Id., 455 U.S., at 115- 116 (footnotes
omitted).
The need for solicitude for the particular susceptibility of
juveniles is well reflected by the facts of this case. The trial
judge found that petitioner acted under duress or under the
domination of an older person, and that he was suffering from
mental retardation and a personality disorder. See Roach v. Martin,
757 F.2d
1463, 1468-1469 (CA4) ( 1985). In addition, petitioner now
presents evidence suggesting that he suffers from the debilitating
effects of Huntington's disease. Under these circumstances, even
accepting the Court's current interpretation of the Eighth
Amendment, sentencing petitioner to death may be inconsistent with
the " 'evolving standards of decency that mark the progress of a
maturing society,' " Gregg v. Georgia, supra, 428 U.S., at 173
(1976) (quoting Trop v. Dulles,
356 U.S.
86, 101, 598 (1958) (plurality opinion of Warren, C.J .)), and
may provide no more than "marginal contributions to any discernible
social or public purposes." Furman v. Georgia,
408 U.S.
238, 312, 2764 (1972) (WHITE, J., concurring). " Even if some
percentage of adults are deterred by the death penalty, the
deterrent effect tends to lose much of its power when imposed upon
an adolescent." Streib, Death Penalty for Children: The American
Experience with Capital Punishment for Crimes Committed While Under
Age Eighteen, 36 Okla.L.Rev., 613, 639 (1983). I would grant the
petition for certiorari to resolve this important issue, and would
stay petitioner's execution until we decide the matter. At the very
least, in light of the evidence suggesting that petitioner suffers
from Huntington's disease, I agree with Justice MARSHALL that the
stay should be granted and the case held pending our decision in
Ford v. Wainwright, cert. granted, 474 U.S. 1019 (1985).
Page 474 U.S.
1039 , 1041
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
The State of South Carolina intends to execute petitioner James
Terry Roach tomorrow, January 10, 1986, at 5 a.m. At approximately
noon today, four hours after he presented his federal habeas claims
to the Court of Appeals and was denied all relief, petitioner came
to this Court, seeking a stay of execution and a writ of
certiorari. Among other claims, Roach's counsel contends that Roach
has been rendered so mentally incompetent by Huntington's disease
that his execution would offend the contemporary standards of
decency embodied in the Eighth Amendment. One month ago, this Court
granted certiorari to resolve the issues whether the execution of
the presently mentally incompetent offends the Eighth Amendment
and, if it does, what process is due a condemned prisoner who might
lack any understanding of the penalty he faces. Ford v. Wainwright,
cert. granted, 474 U.S. 1019 (1985). Because in the 17 hours
allowed it by the regime of Barefoot v. Estelle,
463 U.S. 880, 103 S. Ct.
3383 (1983),* this Court has decided to allow Roach to go to his
death while the question of his execution's constitutionality is
yet to be resolved, I must dissent from the denial of petitioner's
application for a stay of execution.
In 1977, several months before his 18th birthday, petitioner
pleaded guilty to two counts of murder and charges of criminal
sexual assault, kidnaping and armed robbery. At the capital
sentencing hearing, a psychiatrist appearing on Roach's behalf
testified that while Roach was mentally retarded, he could not, at
that time, be diagnosed as suffering from Huntington's disease.
Huntington's disease is an inherited disorder of movement,
personality, and thought that often does not manifest itself until
an individual has reached adulthood. Roach v. Martin,
757 F.2d
1463, 1473 (CA4 1985). After considering this and other
mitigating factors, however, the trial judge sentenced Roach to
death on both murder counts. The conviction and sentence were
upheld on direct review, State v. Shaw ( Roach), 273 S.C. 194,
255 S.E.2d
799 (1979), and this Court denied certiorari, 444 U.S. 1026
(1980).
In his first federal habeas petition, Roach urged that he had
indeed inherited Huntington's disease from his mother, who had
Page 474 U.S.
1039 , 1042
already been diagnosed as having that disorder in an early
stage. Roach further alleged that, were he given the opportunity to
prove this fact, he could raise doubts as to both his competency to
stand trial and the appropriateness of his death sentence. It
appears that Roach did not press any claim of his present
incompetence to be executed, for, in affirming the District Court's
denial of his habeas petition, the Court of Appeals concluded:
"[E]ven assuming arguendo that Roach
does in fact have the Huntington's gene, in which case HD
[Huntington's disease] will inevitably manifest its symptoms, we
can see no way that this fact alone would alter Roach's conviction
and sentence. In other words, a determination today that Roach has
the HD gene would not affect the findings that Roach was sane at
the time of the offenses and that he was competent to stand trial,
and is now competent." 757 F.2d, at 1474.
The petition now before this Court, however, goes beyond mere
allegations that Roach suffers from an as-yet-unmanifested genetic
disorder. Accompanying his petition is an affidavit by Dr. William
H. Olsen, a distinguished neurologist who, less than two weeks ago,
was the first neurologist to have examined Roach in the last five
years. Dr. Olsen not only found that there is a "reasonable degree
of certainty" that Roach suffers from Huntington's disease, but
also made a preliminary finding that Roach suffers from the mental
deterioration that is a characteristic symptom of the disorder. Dr.
Olsen's conclusion, though admittedly preliminary, raises
substantial doubts as to whether Roach has any understanding that
he is scheduled to die tomorrow morning. Certainly, nothing in the
State's papers assuages these doubts.
Neither this Court nor the State of South Carolina is now in a
position to ascertain whether Roach is indeed sufficiently
competent to face his execution with the dignity that is the final
right we allow even the most heinous criminals. What we can do is
allow Roach's counsel and experts the time and opportunity to make
such a showing. The Court's refusal to do so even while it prepares
to hear a case in which another condemned man raises a similar
claim, provides yet another stark example of the arbitrariness with
which the death penalty is administered in the United States today.
I would grant the stay and defer consideration of Roach's petition
for certiorari pending this Court's decision in Ford v. Wainwright,
supra.
Footnotes
[
Footnote *] See Note, Summary
Processes and the Rule of Law: Expediting Death Penalty Cases in
the Federal Courts, 95 Yale L.J. 349 (1985).
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