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SCOTUS Declines to Extend Its Lockett/Penry Error

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On February 5, the U.S. Supreme Court stayed the execution of Texas quadruple murderer Lester Leroy Bower while it considered his petition to take up his case for full briefing and argument.  Today the high court denied the petition, and the stay automatically terminates, giving Texas the green light to proceed (if they can find some pentobarbital).

In order to accept Bower's claim, the Court would need to further extend what is possibly the worst of all the errors in its capital sentencing jurisprudence, the Lockett/Penry rule that the defendant must be allowed to introduce "mitigating" evidence that has nothing to do with the crime and that the jury must be instructed to consider it.  The rule is wrong for the reasons explained by Justice White in Lockett v. Ohio, Justice Scalia in Penry v. Lynaugh and Walton v. Arizona, and Justice Thomas in Graham v. Collins.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissents from today's order.  Interestingly, Justice Kagan does not join this opinion.
In its 1976 decision in Jurek v. Texas, the Supreme Court upheld Texas's revised post-Furman sentencing system in which the sentence is determined by having the jury answer three special issues.  One deals with future dangerousness, but none addresses an overall assessment of every mitigating circumstance under the sun.  At the time, it was a fair interpretation of Furman that such broad consideration of circumstances was unconstitutional, and in a companion case to Jurek, Gregg v. Georgia, the principal attack on Georgia's system was exactly that argument.

In the 1978 case of Lockett v. Ohio, a plurality of the Supreme Court said that the sentencer must be allowed to consider any aspect of the defendant's background or character that he proffers as mitigating without addressing the conflict between that statement and its prior decisions upholding the Texas and Florida systems.

In Penry in 1989, a bare majority said the Texas special issue system was invalid as applied to Penry, whose mitigation evidence of claimed mild retardation* was either double-edged or not able to be considered at all within the Texas special issues.  The Court claimed not to be overruling Jurek, though Justice Scalia's dissent, joined by Chief Justice Rehnquist, Justice White, and Justice Kennedy, showed that it was.  The majority further went on to hold that it was not creating a "new rule" within the meaning of Teague v. Lane, a holding that would be indefensible if the rule of Penry extends to mitigation evidence that can be considered under the special issues but not in all the ways the defendant wants.

In Graham v. Collins in 1993, the Court held that just such an extension of Penry would indeed be a new rule.  Therefore, such an extension could not be made on habeas corpus or applied to any inmate whose sentence was then final on direct appeal.

Bower's "mitigating" evidence is Penry-extended evidence.  It is general "good character" evidence that Bower is really a nice guy when he is not slaughtering multiple people.  As Justice Breyer puts it:

Bower introduced evidence that was, in his view, mitigating. He noted that he was 36 years old, married, employed full-time, and a father of two. He had no prior criminal record. Through the testimony of Bower's family members and friends, the jury also heard about Bower's religious devotion, his commitment to his family, his community service, his concern for others, his even temperament, and his lack of any previous violent (or criminal) behavior.
Didn't the "future dangerousness" issue allow the jury to take that evidence into account?  Bower's sentence became final on direct appeal in 1989.  Under the law as it existed at that time and for several years after (Graham v. Collins (1993); Johnson v. Texas (1993)), that was enough to comply with the Lockett/Penry rule.  Subsequently, the Texas Legislature added a "catch-all" issue, and the Supreme Court has further extended the rule, but that is not a good enough reason to reopen a case properly tried and correctly decided on appeal under the law in effect at the time.

Nonretroactivity is particularly important when it comes to these procedural rules that the Supreme Court has fabricated from whole cloth without a shred of basis in the language, history, or original understanding of the Constitution.  Justice Breyer says, "The Constitution accordingly entitles Bower to a new sentencing proceeding."  No, it does not.  Perhaps the Supreme Court's precedents illegitimately grafting new branches onto the Constitution would forbid a sentencing proceeding like the one Bower had in a new case today, but no such precedents existed at the time of his trial and appeal.

Bower also claims actual innocence.  If that were true or even seriously in doubt, that would be a good enough reason to halt the execution until the doubt could be definitively resolved and to commute the sentence if it could not.  That claim has been rejected across the board, though, and even Justice Breyer's dissent today does not even mention it.

* A jury subsequently determined that Penry is not, in fact, retarded intellectually disabled.

2 Comments

Interestingly, Justice Breyer voted to deny certiorari on the exact same Penry claim when it was before the Court on federal habeas review in 2006. The citation is Bower v. Dretke, 126 S. Ct. 1144.

You gotta love it that it can now be considered "mitigating" that the defendant led an unremarkable life except for multiple murder.

P.S. Somehow, I seriously doubt that he otherwise led an unremarkable life.

P.P.S. Abolitionists have to consider it bad news that they got neither Kennedy nor Kagan.

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