Argument preview: Mental disability and death sentencing
on Mar 27, 2015 at 1:38 pm
At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on the procedure to be used to determine if an individual is mentally disabled and thus cannot be given a death sentence. In Brumfield v. Cain, arguing for the Louisiana death-row inmate will be Michael B. DeSanctis of the Washington, D.C., office of Jenner & Block LLP. Representing the state warden will be Premila Burns of Baton Rouge, an assistant district attorney for the East Baton Rouge Parish. Each lawyer will have thirty minutes of time.
Over the years, the Supreme Court has created a fairly short list of categories of individuals who cannot constitutionally be executed for their crimes. The list includes juveniles, the mentally insane, anyone who commits a crime other than murder, and, most recently, an individual who is mentally disabled. Although each decision in this series supposedly imposed a flat ban on a death sentence for the individual or the crime, the Court has struggled the most with clarifying the mental disability category. It returns to that effort next week.
In its decision in 2002 in Atkins v. Virginia, the Court ruled that the Eighth Amendment ban on cruel and unusual punishment bars the execution of a person who was mentally disabled. (In that ruling, the Court used the phrase “mentally retarded,” but it has since followed the medically preferred phrase “intellectually disabled.”)
At that time, the Court remarked that “not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus [against their execution].” So the Court said it was leaving to the states “the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”
Since then, the Court has told the states that they may not use a single factor — the score an individual gets on an IQ test — to make the decision. But it has yet to define what procedure the Eighth Amendment may require a state to use to determine whether a person is eligible to be treated as mentally disabled.
In the new case of Brumfield v. Cain, the Court has agreed to decide whether it is unconstitutional for a state to make that decision based solely on the evidence that was presented at the death sentencing procedure following a conviction for murder. The appeal in this case seeks a ruling that the Eighth Amendment requires that there be a separate hearing, focused only on evidence — for and against — a finding of mental disability.
This case involves Kevan Brumfield of Baton Rouge, who is on death row for the 1993 murder of a police officer who was moonlighting off-duty as a security guard for a Baton Rouge supermarket. Brumfield and two other men allegedly had lingered around that grocery store, checking it out to see if they could stage a robbery.
The store manager was Kimen Lee, while Corporal Betty Smothers, in uniform, was there as a part-time guard. When the store closed, Smothers drove her patrol car, with Lee as a passenger, to a bank’s night depository with the day’s proceeds from the store. Brumfield and another man allegedly hid in the bushes at the bank, then fired shots at the patrol car, killing Smothers and gravely injuring Lee. The men fled without taking the bank deposit bag.
Brumfield was tried for the murder of Corporal Smothers, after he had given a videotaped confession. Lee survived her wounds and testified at the trial, helping prosecutors prove that Brumfield was one of the shooters at the bank. Brumfield’s defense lawyer did not raise the mental disability claim at the trial.
After Brumfield was convicted, a separate death sentencing proceeding was held. The defense lawyers called to the stand a psychologist and a social worker to testify about Brumfield’s abused childhood and mental deficiencies, but at no time argued that he was actually mentally disabled. A death sentence was imposed.
In a state court challenge after his conviction became final, a defense lawyer, relying on the Court’s decision in Atkins v. Virginia, did raise the mental disability claim, but the state court rejected it, finding that the evidence at the sentencing proceeding was sufficient to show that Brumfield was not mentally disabled. The state court also refused a request by Brumfield’s lawyers for funds to cover the cost of gathering evidence about his mental state.
Brumfield then pursued a federal habeas challenge. After a trial, the district court judge ruled that the evidence at the sentencing hearing was not sufficient to determine the mental disability claim, and held seven days of hearings on that question. In the end, the judge concluded that Brumfield did fit into that category. However, the state appealed, and the U.S. Court of Appeals for the Fifth Circuit overturned the district court ruling, concluding that the penalty-phase evidence was sufficient to decide the question. The Fifth Circuit also ruled that Brumfield was not entitled to funds to hire an expert to develop mental disability evidence.
Brumfield’s lawyers appealed to the Supreme Court last May, urging the Court to rule that it was unreasonable for the state court to base its determination that he was not mentally disabled on the evidence at the penalty hearing. Separately, the petition urged the Court to declare that an individual who lacks the money to pay to hire an expert to develop evidence on that issue has a right to such funds.
The Court scheduled Brumfield’s petition for consideration eight times before finally voting to grant it, on December 5.
Briefs on the merits
Brumfield’s brief on the merits noted that the death sentencing proceeding in his case had been held before the Supreme Court had made mental disability a defense against a death sentence, and before Louisiana courts had developed any standards for judging that question. It was no surprise, then, the brief said, that the issue really did not come up at that time.
Given those circumstances, the brief contended, it was unreasonable for the state court — after the Atkins decision had come down — to treat the sentencing proceeding as adequate. The federal district judge, it added, was thus justified in gathering evidence and then actually finding that Brumfield was mentally disabled. The Fifth Circuit, the brief said, should not have overturned that result.
Moreover, the brief asserted, the Fifth Circuit was wrong in upholding the denial of funds to investigate Brumfield’s mental state. The Supreme Court, it added, has made clear that those facing a potential death sentence must have access to expert testimony to evaluate the convicted individual’s mental state.
A former state chief justice for Louisiana, joined by legal advocacy groups in the state, filed an amicus brief urging the Court to overturn the Fifth Circuit’s ruling. This filing laid out how the state courts have now established procedures for fully evaluating a mental disability claim, making Brumfield’s case an aberration.
Louisiana’s brief on the merits used much of its contents to lay out all of the details in the various state court proceedings, to make the point that Brumsfield had a more than fair chance to make a mental disability claim, but failed in that at every turn. Moreover, the state argued, Brumfield’s appeal has misstated the record in arguing that the denial of his disability claim was based solely on what was said at the death sentencing proceeding. That issue, the filing said, is a highly factual one, and the record fully supports the rejection of his claim.
The state also contended that federal habeas law explicitly limited a federal habeas petitioner to challenging the record that was made in state court proceedings. The Supreme Court has made clear, the state said, that the only record that counts in habeas is the evidence that unfolded in state court.
On Brumfield’s separate claim that he had a constitutional right to state funding to help develop a mental disability record, the state contended that Brumsfield’s lawyers failed to press that argument when his case was in state courts. In addition, the state argued, the Supreme Court’s Atkins decision did not establish any procedural rights — such as a right to funding for an investigation of an issue — but left that question to states to work out the procedures.
In a final thrust, the state contended that Brumfield simply is not mentally disabled, noting that he “was subjected to six evaluations before the age of 18 and not one diagnosed him” as disabled.