The application for stay of execution of the sentence of death,
presented to Justice WHITE and by him referred to the Court, is
denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
Adhering 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), I would grant the
application for a stay and vacate the death sentence in this case.
Even if I did not hold this view, for the reasons stated below I
still would be compelled to vote to overturn this sentence.
I
Streetman was convicted in Texas of murder and sentenced by a
jury to die. Pursuant to Texas law, Tex.Code of Crim.Proc.Ann.,
Page 484 U.S.
992 , 993
Art. 37.071(b) (Vernon 1981, and Supp. 1988), the jury was told
that if they answered "yes" to two special questions, Streetman
would automatically be sentenced to death.
The first question asked "whether the evidence established
beyond a reasonable doubt that the murder of the deceased was
committed deliberately and with the reasonable expectation that the
death of the deceased or another would result." As Justice BLACKMUN
has observed, an affirmative answer to this question is generally a
foregone conclusion because intent is usually an element of the
underlying crime of capital murder. Barefoot v. Estelle,
463 U.S. 880, 916-917,
and n. 1, 3406-3407, and n. 1 (1983) (dissenting opinion). Thus,
Streetman's life hinged on the second question: "whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society."
The jury returned with their answers: "Yes" to both questions.
The sentence was accordingly fixed at death, and the Texas Court of
Criminal Appeals affirmed the judgment.
698
S.W.2d 132 (1985). Streetman's first state and federal habeas
corpus petitions (raising issues unrelated to the issue discussed
below) were denied. 634 F. Supp. 290 (ED Tex.1986);
812 F.2d
950 (CA5 1987);
818 F.2d
865 (CA5 1987). He then filed a second state habeas corpus
petition in the state court calling into question, inter alia, the
constitutionality of the Texas death penalty scheme's treatment of
mitigating evidence. The petition was denied in state court, and
the subsequent second federal habeas corpus petition was denied by
the District Court and the Court of Appeals.
674 F.
Supp. 229;
835 F.2d
1519;
835 F.2d
1521 (1988). This application for a stay followed.
II
In 1976, this Court approved generally the Texas death penalty
scheme . Jurek v. Texas,
428 U.S. 262 (1976). In
the course of its analysis, the Court considered the treatment of
mitigating evidence during the sentencing phase. The joint opinion
announcing the judgment found that the Texas courts had construed
the second special question "so as to allow a defendant to bring to
the jury's attention whatever mitigating circumstances he may be
able to show." Id., at 272 (opinion of Stewart, Powell, and
STEVENS, JJ.).
Page 484 U.S.
992 , 994
In Lockett v. Ohio,
438 U.S.
586, 604, 2964-2965, 57 L. Ed. 2d 973 (1978), the plurality
held that "the Eighth and Fourteenth Amendments require that the
sentencer . . . not be precluded from considering, as a mitigating
factor, any aspect of a defendant's character or record and any of
the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death." Ibid. (opinion of Burger,
C.J.). The Court has applied and explained Lockett in the nine
years since it was announced. In Eddings v. Oklahoma,
455 U.S. 104, 102 S. Ct.
869 (1982), the Court applied Lockett to strike a state statute
that precluded the sentencer from considering certain relevant
mitigating evidence, in support of mitigating factors. Later, in
Skipper v. South Carolina,
476 U.S. 1 (1986), the
Court expressly stated that the sentencer must be given all
mitigating evidence, defined as any evidence that "might serve 'as
a basis for a sentence less than death.' " Id., at 5 (quoting
Lockett, supra, 438 U.S., at 604).
This line of cases culminated last term in Hitchcock v. Dugger,
481 U.S. 393
(1987). That unanimous opinion began "[w]e have held that in
capital cases, ' "the sentencer" ' may not refuse to consider or '
"be precluded from considering" ' any relevant mitigating
evidence." Id., at 394 (quoting Skipper, supra, 476 U.S., at 4 in
turn quoting Eddings, supra, 455 U.S., at 110). In considering the
validity of a Florida death sentence, the Court concluded that "it
could not be clearer that the advisory jury was instructed not to
consider, and the sentencing judge refused to consider, evidence of
nonstatutory mitigating circumstances, and that the proceedings
therefore did not comport with the requirements of Skipper . . .,
[v. South Carolina,
476
U.S. 1 (1986)] Eddings . . ., [v. Oklahoma,
455 U.S. 104 (1982)], and
Lockett . . . [v. Ohio,
438 U.S. 586 (1978)]."
481 U.S., at 399.
From these cases it is clear that all relevant mitigating
evidence must be available for consideration by the sentencer. The
reasons underlying this firmly established rule lie in the unique
nature of the death penalty. "[D]eath is a 'punishment different
from all other sanctions,' [citation] and therefore the
considerations that inform the sentencing decision may be different
from those that might be relevant to other liability or punishment
determinations." Booth v. Maryland,
482 U.S. 496, 509, n. 12,
2536, n. 12 (1987) ( quoting Woodson v. North Carolina,
428 U.S. 280, 303-304,
305, 2990-2991, 2991 (1976) (plurality opinion of Stewart, Powell,
and STEVENS, JJ.)). To this end, mitigating evidence that might be
excludable in noncapital-sentencing procedures may be crucial in a
capital case.
Page 484 U.S.
992 , 995
In Summer v. Shuman,
483 U.S. 66 (1987 ), this
Court held categorically that mandatory death sentences are
unconstitutional, a determination foreshadowed by Woodson, supra.
These cases recognize that a sentencer cannot make a judgment based
on the facts of the particular case without all relevant mitigating
evidence, Sumner, supra, at 75-76, and n. 5, 107 S.Ct., at ___, and
n. 5. Although disallowing such evidence would produce uniformity
of sentences, the Court has "recognize[d] that a consistency
produced by ignoring individual differences is a false
consistency." Eddings, supra, 455 U.S., at 112. This "false
consistency" is a natural consequence of the unadorned jury
instructions given under Texas law.
In the instant case, the record discloses that Streetman has had
a history of mental illness, stemming from an injury incurred while
he was in the fifth grade, a circumstance that in every other
jurisdiction would be considered mitigating. Yet the jury that
sentenced him to die could draw but one inference from this
evidence: Streetman posed a substantial threat of future
dangerousness. Streetman complains that in Texas, evidence that
could evoke feelings of sympathy or convince a jury that the
defendant is not culpable enough to deserve death is perversely
transformed into a factor militating solely in favor of death, in
violation of Lockett, supra, and its progeny. Indeed, without an
instruction informing the jury that the second special question is
far broader than its words imply, he was faced with a true dilemma:
introduce the evidence and run the risk that the jury will use it
to answer affirmatively the second special question, or exclude the
evidence entirely. We have already granted certiorari to consider
this very question: "whether the jury must be instructed on the
effect of mitigating evidence under the Texas capital punishment
scheme." Franklin v. Lynaugh, 484 U.S. 891 (1987). Nonetheless, the
Court today refuses to stay Streetman's execution.
III
Streetman, in his application for stay raises precisely the
question we agreed to consider in Franklin. Despite the fact that
there were sufficient votes on this Court to hold Streetman's case
for Franklin, there were not enough votes to grant Streetman's
application for a stay. Had Streetman been convicted of bank
robbery, this would be of no moment. The Court would simply hold
Streetman's case until Franklin was decided, and then take
appropriate action. But death is different. Due to the unique
Page 484 U.S.
992 , 996
nature of the penalty, the relief that we could give any other
type of habeas corpus petitioner is unavailable to Streetman. His
case will be moot long before we can resolve Franklin-he will be
dead. Therefore, we are presented with the same ironic situation as
occurred in Watson v. Butler,
483 U.S. 1037 (1987),
the normal and time-tested procedures of this Court are overcome by
the different nature of the death penalty. Death is certainly
different, but I had never believed it to be different in this
way.
IV
The courts below have held that Streetman's habeas corpus
petition does not actually raise the question presented in Franklin
because he failed to preserve the issue at his trial, I suppose by
failing to request a particular jury instruction. However, it is
clear that under Texas law the trial court was discouraged from
giving a mitigating evidence instruction. Stewart v. State,
686
S.W.2d 118 (Tex.Crim.App.1984). In fact, the court in Stewart,
over a vigorous dissent, specifically held that "no jury charge
regarding evidence of any mitigating circumstances [ is] necessary
since the questions prescribed under Article 37.071 clearly allow
the jury to grasp the logical relevance of mitigating evidence."
Id., at 121 (citing Quinones v. State,
592
S.W.2d 933, 947 (Tex.Crim.App.1980 )). That holding has been
reiterated in numerous cases. Clark v. State,
717
S.W.2d 910 (Tex.Crim.App.1986); Fierro v. State,
706
S.W.2d 310 (Tex. Crim.App.1986); Johnson v. State,
691
S.W.2d 619 (Tex.Crim.App.1985); Lackey v. State,
638
S.W.2d 439 (Tex.Crim.App.1982); Adams v. State,
577
S.W.2d 717 (Tex.Crim.App.1979). Additionally, Texas has adopted
pattern jury instructions. The instructions for death cases say
nothing regarding how the jury is to consider mitigating evidence
that actually supports a finding of future dangerousness. P.M.
McClung, Jury Charges for Texas Criminal Practice 75-78 (rev. ed.
1981). If, as a matter of course and relying on Stewart and
Quinones as well as the pattern jury instructions, Texas trial
judges refuse to give such instructions when asked, Streetman
surely was under no duty to make the futile request. Of course,
whether or not this is the case in Texas is a question of fact. A
habeas court has a duty to determine whether a hearing is necessary
to resolve this question. See Habeas Corpus Rule 8. I believe that
Streetman is entitled to an opportunity to make the required
showing before he is executed.
Page 484 U.S.
992 , 997
Nor do I believe that Streetman could reasonably be held barred
under an abuse-of-the-writ theory, as the District Court apparently
found. The Franklin claim was not foreseeable prior to this Court's
issuance of the stay order. In light of this Court's decision in
Jurek, supra, upholding the Texas scheme, and the citation to Jurek
in Lockett, supra, coupled with the Fifth Circuit's explicit
rejection of the claim, it was not abusive for Streetman to fail to
raise the issue in his first federal petition.
Finally, as to the failure to raise the question on direct
appeal, there is certainly no bar. Precedent in the Fifth Circuit
and statements from this Court provided cause for the failure. See
Reed v. Ross,
468 U.S.
1, 12-16, 2908-2910 (1984).
For these reasons, I cannot conclude that Streetman's Franklin
claim was procedurally barred. Consequently, I must dissent from
the refusal of this Court to stay Streetman's death until we
definitively resolve the questions his petition presents.
V
Streetman also raises a broader challenge to the Texas death
penalty scheme. He alleges that given the nature of the special
death penalty questions, no instruction, however phrased, could
adequately inform the jury of its constitutional duty to consider
properly all mitigating evidence. As a panel of the Court of
Appeals for the Fifth Circuit has cogently demonstrated, it is time
for this Court to reconsider the Texas system in light of the
intervening precedent. Penry v. Lynaugh,
832
F.2d 915 (1987). The persuasive opinions of Judges Reavley and
Garwood conclusively demonstrate to me that certiorari should be
granted to consider such a challenge. Consequently, I dissent from
the Court's refusal to consider this broader claim. It may be true,
as some have argued, that if the Texas death penalty statute is
unconstitutional, the fault lies with this Court rather than with
the State. But even if that is so, it is the height of unfairness
to make Streetman pay for our mistake.
I dissent.
Justice BLACKMUN and Justice STEVENS would grant the application
for stay of execution of sentence of death.
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