U.S. Supreme Holds That Juries Must Review Both Aggravating and Mitigating Nature of Facts in Death Penalty Cases

The United States Supreme Court recently held in three Texas death penalty cases that juries must be instructed to analyze the mitigating nature, not just the aggravating nature, of facts. Cole v. Quarterman, No. 05-11284 (Apr 25, 2007). Brewer v. Quarterman, No. 05-11287 (Apr 25, 2007). Smith v. Texas, No. 05-11304 (Apr 25, 2007).

Previously, the Court has held that only juries, not judges, can determine any fact that could lead to the death penalty. See Ring v. Arizona, 536 U.S. 584 (2002). See Apprendi v. New Jersey, 530 U.S. 466 (2000). In regard to Texas’ jury instructions, the court held in Penry v. Lynaugh, that jury instructions must direct juries to fully consider mitigating evidence as it bears on a defendant’s personal culpability. 492 U.S. 302, 323 (1989).

In Penry, although the defendant’s crime of rape and murder was gruesome, a clinical psychologist testified for the criminal defense that Penry was mentally retarded. The Court “characterized the evidence of Penry’s mental retardation and history of childhood abuse as a ‘two-edged sword,’ because it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.” Id. at 324.

Brewer, similarly, suffered from clinical depression, was abused as a child, saw his mother abused by his father, was dominated by his co-defendant, and abused drugs. Brewer at 2. At his sentencing hearing, Brewer asked the judge to instruct the jury to review this evidence as a mitigating circumstance, not just as an aggravating circumstance. The judge refused and only submitted the standard special questions to the jury, including whether there is a probability Brewer “would commit criminal acts of violence that would constitute a continuing threat to society.” Id. at 3. The prosecutor emphasized to the jury that Brewer’s circumstances only supported an affirmative answer to the question of his “future dangerousness,” saying “you can take a puppy, and you can beat that puppy and you can make him mean, but if that dog bites, he is going to bite the rest of his life, for whatever reason.” Id. at 4. He told the jurors they lacked the power to exercise moral judgment in determining Brewer’s sentence, telling them they “don’t have the power to decide whether [Brewer] lives or dies.” Id. at 4. The jury answered the special questions in the affirmative and Brewer was sentenced to die.

The Supreme Court disagreed with this approach. The Court held that such evidence must be taken, by the jury, as a “two-edged sword.” The jury must be instructed to review each fact for its mitigating nature, not just its aggravating nature.