Rehearing Denied Dec. 9, 1985.
See 474 U.S. 1026.
On petition for writ of certiorari to the Supreme Court of
Georgia.
The petition for a writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my views 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), I would grant
certiorari and vacate the death sentence in this case.
Page 474 U.S.
925 , 926
Justice MARSHALL, dissenting.
I would vacate the judgment of the Georgia Supreme Court insofar
as it left undisturbed the death sentence imposed in this case.
Gregg v. Georgia,
428 U.S.
153, 231, 2973 (1976) ( MARSHALL, J., dissenting). The
petitioner has presented an important question concerning the
Eighth Amendment's ban on cruel and unusual punishment as applied
to the execution of a mentally retarded person.
I
The petitioner is mentally retarded, with an IQ of 65 and mental
abilities roughly equivalent to those of a 10-year-old child. He
was tried for the murder of one Dan Turner, a friend of the
petitioner and his family. There were no eyewitnesses to the crime.
The petitioner had gone into Turner's grocery store to buy some
cigarettes. The petitioner testified at trial that he grabbed
Turner when the latter opened the cash register. Turner reacted by
picking up a hammer, and the petitioner then stabbed him and hit
him with the hammer after it fell from the victim's hand. The
petitioner took money from the cash register and Turner's wallet
and fled.
The petitioner turned himself in to the police and gave a
lengthy statement in which he admitted stabbing Turner. When asked
about the reasons for his actions, the petitioner stated that he
had wanted to get money. At trial, however, the petitioner stated
that he had not entered the store intending to rob Turner, and did
not know why he had grabbed Turner as the latter was getting the
petitioner's cigarettes.
A psychiatrist who examined the petitioner stated that the
petitioner showed considerable remorse in discussing the murder.
The petitioner testified at trial that he "didn't mean to kill Mr.
Dan," but had gotten " carried away" after he saw the victim
wielding the hammer in what the petitioner interpreted as a
threatening manner. There was evidence that the petitioner was
under considerable stress in the days preceding the murder. The
petitioner's counsel argued that the petitioner was insane or, at
minimum, lacked the requisite mental intent because of his
retardation. Nevertheless, the jury found the petitioner guilty of
malice murder and armed robbery and sentenced him to death.
Page 474 U.S.
925 , 927
II
In Furman v. Georgia,
408 U.S. 238, 363-369,
2789-2792 (1972) (MARSHALL, J., concurring), I concluded that the
death penalty was "morally reprehensible" to contemporary society
based, in part, on its discriminatory imposition. Statistically, it
was "evident that the burden of capital punishment falls upon the
poor, the ignorant, and the underprivileged members of society."
Id., at 365-366-2791 (footnote omitted). The petitioner suffers the
unfortunate distinction of meeting each of these criteria. His
case, like so many others coming before this Court, convinces me of
the continuing validity of my observations in Furman.
I need not recount here our country's shameful history with
respect to the mentally retarded. See Cleburne v. Cleburne Living
Center,
473 U.S.
432, 455, 3262 (1985) (MARSHALL, J., concurring in judgment in
part and dissenting in part). I believe, however, that the courts
bear a special responsibility when faced with the possible
execution of a member of a group that has been subject for so long
to irrational social stigma. [
Footnote 1] This is particularly true in the instant case,
because the petitioner's handicap necessarily diminishes his
culpability. A mentally retarded person who is susceptible to
confusion and impulsive reaction when put in a stressful situation
2 is the very opposite of the cold-blooded, calculating killers
that populate this Court's opinions validating the death penalty.
See, e.g., Gregg v. Georgia, supra, 428 U.S., at 185-186-2931
(opinion of STEWART, POWELL, and STEVENS, JJ.).
Page 474 U.S.
925 , 928
This Court has demanded that a capital sentencing scheme
provide, at a minimum, a "meaningful basis for distinguishing the
few cases in which it is imposed from the many cases in which it is
not," Furman, supra, 408 U.S., at 313 (WHITE, J., concurring); see
Godfrey v. Georgia,
446 U.S. 420, 427-428,
1764-1765 ( 1980) (plurality opinion). In this case, the mechanical
application of the Georgia sentencing scheme undermined one purpose
that the Court has determined to underlie such procedures-to
reserve the penalty of death for the most culpable killers, thus
satisfying society's " 'instinct for retribution,' " Gregg v.
Georgia, 428 U.S., at 183 ( quoting Furman, supra, 408 U.S., at 308
(Stewart, J., concurring)).3 The execution of a
Page 474 U.S.
925 , 929
mentally retarded person serves this retributive function
extremely poorly, because the level of "personal responsibility and
moral guilt," Enmund v. Florida,
458 U.S.
782, 801, 3378 (1982), is so much lower than in the case of a
fully competent person who commits the same crime. [
Footnote 4] As applied to the petitioner,
the death penalty is " nothing more than the purposeless and
needless imposition of pain and suffering," Coker v. Georgia,
433 U.S.
584, 592, 2866, 53 L. Ed. 2d 982 (1977) (plurality opinion),
and therefore unconstitutional.
Footnotes
Footnote 1 It cannot be
denied that American communities have traditionally shown a strong
desire to be rid of the mentally retarded in any way possible. See
Cleburne, 473 U.S., at 462 (retarded subjected during end of 19th
and beginning of 20th centuries to a "regime of state-mandated
segregation and degradation . . . that in its virulence and bigotry
rivaled, and indeed paralleled, the worst excesses of Jim Crow ").
See also Buck v. Bell,
274 U.S.
200, 207, 585 (1927) (upholding compulsory sterilization as
alternative to "waiting to execute degenerate offspring for
crime"); Halderman v. Pennhurst State School & Hospital,
446 F.
Supp. 1295, 1299-1300 (ED Pa.1977) (noting history of
institutionalization of mentally retarded), aff'd in part and rev'd
in part,
612 F.2d
84 (CA3 1979), rev'd,
451 U.S. 1 (1981).
Footnote 2 A psychiatrist
who examined the petitioner testified that he exhibits these
characteristics. See Affidavit of Dr. Fisher, App. H to Pet. for
Cert. The characteristics are typically found in the mentally
retarded. See M. Sternlicht & M. Deutsch, Personality
Development and Social Behavior in the Mentally Retarded 81-82
(1972).
Footnote 3 Courts have often
shown reluctance to impute to a retarded defendant the necessary
culpability to uphold a sentence of death. See, e. g., State v.
Hall, 176 Neb. 295, 309-310,
125 N.W.2d
918, 926-927 (1964) ( exercising its statutory prerogative to "
'reduce the sentence rendered . . . when in its opinion the
sentence is excessive,' " court concluded that where the defendant,
had an IQ of 64, "reduction of the death penalty to one of life
imprisonment is warranted"); State v. Behler, 65 Idaho 464,
474-475, 146 P.2d 338, 343 (1944) ("Undoubtedly, one possessing a
normal mind should be held to a full, strict accountability for his
conduct, but, should a person with a pronounced subnormal mind be
held to the same high degree of accountability?"); Commonwealth v.
Green, 396 Pa. 137, 151 A.2d 241 (1959) (vacating death sentence
where sentencer had failed to consider mitigating factors,
including defendant's youth and subnormal intelligence ). See also
Thompson v. State,
456 So. 2d
444,
448 (Fla.1984)
(trial judge erred in overriding jury recommendation of life
imprisonment on the grounds that no mitigating circumstances
existed, where "appellant's mental retardation could have been
considered by the jury as a basis for recommending life
imprisonment"). Legislatures have also acknowledged that the
retarded are less deserving of the death penalty than other
offenders. Many state statutes make mental disease or defect at the
time of the criminal act a mitigating factor. See Ark.Stat.Ann.
41-1304(3) ( 1977); Cal.Penal Code Ann. 190.3(h) (West Supp.1985);
Conn.Gen.Stat. 53a-46a(f)(2) (1985); Ind.Code 35-50-2-9(c)(6)
(1985); Ky.Rev.Stat. 532.025(2)(b)(7) (1985); La.Code
Crim.Proc.Ann., Art. 905.5(e) (West 1984 ); Md.Ann.Code, Art. 27,
413(g)(4) (Supp.1985); Neb.Rev.Stat. 29- 2523(2)(g) (1979);
N.J.Stat.Ann. 2C:11-3(c)(5)(d) (West 1982); Ohio Rev.Code Ann.
2929.04(B)(3) (1982); Tenn.Code Ann. 39-2-203(j)(8) ( 1982);
Wash.Rev.Code 10.95.070(6) (1983). See also Ala.Code 13A-5-51( 6)
(1982); Ariz.Rev.Stat.Ann. 13-703(G)(1) (Supp.1984-1985); Fla.Stat
. 921.141(6)(f) (1983); Miss.Code Ann. 99-19-101(6)(f) (Supp.1985);
Mo.Rev.Stat. 565.032(3)(6) (Supp.1984); Mont.Code Ann. 46-18-304(4)
( 1983); N.H.Rev.Stat.Ann. 630:5(II)(b)(4) (1983); N.M.Stat.Ann.
31- 20A-6(C) (1981); N.C.Gen.Stat. 15A-2000(f)(6) (1983); 42
Pa.Cons.Stat . 9711(e)(3) (1982); S.C.Code 16-3-20(C)(b)(6) (1985);
Va.Code 19. 2-264.4(B)(iv) (1983); Wyo.Stat. 6-2-102(j)(vi)
(1983).
Footnote 4 Recognizing the
greatly lower culpability of the mentally defective is certainly
not novel; Blackstone notes that "by the law . . . ever since the
time of Edward the Third, the capacity of doing ill, or contracting
guilt, is not so much measured by years and days, as by the
strength of the delinquent's understanding and judgment." 4 W.
Blackstone, Commentaries *23.
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