Today’s Opinions in No. 05-11284, Abdul-Kabir v. Quarterman, and No. 05-11287, Brewer v. Quarterman

By a vote of five to four, the Supreme Court today reversed two decisions of the Fifth Circuit (a.k.a. the Ninth Circuit of the Court’s death penalty docket), No. 05-11284, Abdul-Kabir v. Quarterman, and No. 05-11287, Brewer v. Quarterman. As in Smith v. Texas, also decided today, it was the vote of Justice Anthony Kennedy that made the difference here, as he joined Justices Stevens, Souter, Ginsburg, and Breyer in voting to reverse. Although today’s opinions represent a further reproach of the Fifth Circuit’s handling of capital cases, it is unclear how widespread the immediate effect of today’s decisions will be, particularly because Texas has not used the jury instructions at issue in the Abdul-Kabir and Brewer cases since 1991. However, as the Chief Justice’s dissenting opinion suggests (see below), today’s decision at a minimum may add fuel to the fire in the next battle over what constitutes “clearly established law” for purposes of the Antiterrorism and Effective Death Penalty Act of 1996, which governs prisoners’ efforts to obtain federal habeas relief.

Jalil Abdul-Kabir, formerly known as Ted Cole, was convicted of murder for the strangling (with a dog leash) death of Raymond Richardson. At his sentencing hearing, Abdul-Kabir presented mitigating evidence from relatives regarding his unhappy childhood, as well evidence from experts who discussed the consequences of that childhood. At sentencing, the jury was asked to answer two “special issues” under Texas law: (1) whether the murder was deliberate; and (2) whether Abdul-Kabir would be dangerous in the future. If these two questions were answered in the affirmative, the trial judge would be required to impose a death sentence. The trial judge refused the defense’s request to instruct the jury that it could rely on mitigating evidence to answer the special issues in the negative, and Abdul-Kabir was ultimately sentenced to death.

Until today, Abdul-Kabir’s efforts to obtain both state and federal habeas relief were unsuccessful. The federal district court rejected his contention that the sentencing jury was unconstitutionally precluding from “consider[ing] and giv[ing] effect to the mitigating evidence.” It explained that in accordance with the Fifth Circuit’s construction of the Supreme Court’s decision in Penry v. Lynaugh (Penry I), the exclusion of mitigating evidence rose to a constitutional violation only when the defendant could show a nexus between the murder and “a uniquely severe permanent handicap” – a link that was absent in this case. The Fifth Circuit denied Abdul-Kabir’s application for a certificate of appealability, but the Supreme Court vacated that order and remanded for further proceedings in light of its 2004 decision in Tennard v. Dretke. The case returned to the Court after the Fifth Circuit upheld the district court’s denial of relief.

Justice Stevens devotes nearly one-third of his thirty-page opinion in Abdul-Kabir to a review of the Court’s death penalty jurisprudence, which – in the majority’s view – “firmly established” even “well before our decision in Penry I . . . that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence.” By contrast, Justice Stevens explains, the state trial judge who rejected Abdul-Kabir’s application for habeas relief, did not analyze Penry I at all; instead, the state court relied on the Court’s 1989 decision in Graham v. Collins. That reliance, the majority continues, was “misguided” in light of the narrow holding in Graham. The Court’s subsequent cases – even those holding that the special issues allowed adequate consideration of mitigating evidence – “fail[ed] to disturb the basic legal principle that continues to govern such cases: The jury must have a ‘meaningful basis to consider the relevant mitigating qualities’ of the defendant’s proferred evidence.” In this case, the majority emphasizes, because some of the mitigating evidence that Abdul-Kabir presented was not relevant to either of the two special issues, the jury had no such meaningful basis and the sentencing process was thus “fatally flawed.”

In a separate but much shorter opinion, Justice Stevens’s majority opinion also reversed the Fifth Circuit’s decision in the case of Brent Ray Brewer (seriously, what is it about capital defendants with the middle name “Ray”?). In Brewer’s case, the Fifth Circuit had itself reversed the district court’s decision granting conditional relief, citing the lack of expert psychiatric testimony at Brewer’s sentencing; moreover, under its precedents, “mental illness has given rise to Penry I violations” only when “the illness in question is chronic and/or immutable.” The majority today rejected this formulation, emphasizing instead that the relevant inquiry with regard to mitigating evidence is whether it has “relevance to the special issues and the extent to which it may diminish a defendant’s moral culpability for the crime.” The majority similarly rejected the Fifth Circuit’s characterization of the law as requiring only that mitigating evidence be given “sufficient effect,” explaining that – “[l]ike the ‘constitutional relevance’ standard that we rejected in Tennard” – such a standard has “no foundation in the decisions of this Court.” Finally, the opinion delivers the polite, Justice Stevens version of a slapdown: the majority laments that the Fifth Circuit’s decision in these cases “fail to heed the warnings that have repeatedly issued from this Court regarding the extent to which the jury must be allowed not only to consider such evidence . . . but to respond to it in a reasoned, moral manner and to weigh such evidence in its calculus of deciding whether a defendant is truly deserving of death.”

Although the Chief Justice’s dissent – which is joined by Justices Scalia, Thomas, and Alito – lacks the “colorful” language of some Justice Scalia dissents, it is, upon closer read, no less pointed in its criticism of the majority opinion. Noting that the Court had “considered similar challenge to the same [jury] instructions no fewer than five times in the years before the state habeas courts considered the challenges at issue here,” the Chief Justice derides the majority’s conclusion that there was clearly established law on the mitigating evidence issue as “utterly revisionist.” Rather, he emphasizes, the Court’s jurisprudence on the issue instead provided state courts with only “a dog’s breakfast” – this week’s “sheer applesauce”? – of “divided, conflicting, and ever-changing analyses.” Indeed, he notes, although the majority today holds that the “meaning and scope” of Penry I was “clearly established” in 1999, members of the Penry majority later complained that the Court’s subsequent capital jurisprudence was contrary to (or at least substantially narrowed) Penry. Moreover, he laments, the majority opinion relies on cases decided after the state court’s denial of habeas relief: “AEDPA requires state courts to reasonably apply clearly established federal law. It does not require them to have a crystal ball.”

In closing, the Chief Justice delivers one last subtle but sarcastic salvo at the majority opinion, noting that although the majority opinion “trivializes AEDPA’s requirements,” “perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented ‘clearly established’ federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road but tunc pro nunc. Encouraged by the majority’s determination that the future can change the past, I respectfully dissent.”

Justice Scalia, joined by Justice Thomas and – in part – Justice Alito, also dissented separately to express his view that “clearly established law” favoring the state governed Abdul-Kabir and Brewer’s cases. In Johnson v. Texas, Justice Scalia explained, the Court clarified that habeas relief was appropriate when jurors could not give any mitigating effect to the evidence at issue; Penry I did not stand for the proposition that “a jury [must] be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.” Emphasizing that “Johnson was the law, until today,” Justice Scalia notes that in the fifteen years since Johnson was decided the courts have “erroneously relied on Johnson to allow the condemned to be taken to the death chamber.” “This Court’s vacillating pronouncements,” he explains, have produced grossly inequitable treatment of those on death row” [News flash! Justice Scalia is expressing concern about inequities in the treatment of capital defendants!] insofar as “[r]elief from sentence of death because of the jury’s inability to give ‘full effect’ to all mitigating factors has been made available only to those who have managed to drag out their habeas proceedings until today.”