Burger v. Kemp

Justice Powell,

with whom

Justice Brennan joins, dissenting.

I join Part II of Justice Blackmun’s dissenting opinion. I would reverse the judgment of the Court of Appeals on the ground that counsel unreasonably failed to investigate and present to the sentencing jury available mitigating evidence that would have raised a substantial question whether the sentence of death should have been imposed on a seriously backward minor. I therefore do not reach the question whether there was a conflict of interest resulting from the fact that two law partners represented Burger and Ste *818 vens in their separate trials. I write separately to emphasize those aspects of Burger’s claim that I find particularly troubling.

I

When he committed the crime for which he is now to be executed, Burger’s physical age was 17 years. He had an IQ of 82, was functioning at the level of a 12-year-old, and possibly had suffered brain damage from beatings when he was younger. See Burger v. Kemp, 753 F. 2d 930, 957 (CA11 1985) (Johnson, J., dissenting). Testimony by Burger’s mother at the federal habeas corpus hearing confirmed that his childhood was turbulent and filled with violence. App. 88-92; see ante, at 789-790. Affidavits from Burger’s childhood friends also attested to his troubled upbringing. See ante, at 793.

Defense counsel knew something of these facts, although not the details. App. 51-52. Prior to the sentencing hearing, counsel had interviewed Burger, Burger’s mother, and an attorney who had befriended Burger and his mother. He had also reviewed psychologists’ reports provided by Burger’s mother, and spoken to the psychologist who testified as to Burger’s IQ and psychological maturity at the suppression hearing. 753 F. 2d, at 935 . After this review, counsel made the judgment that presenting any evidence at sentencing in addition to Burger’s chronological age and the facts of his degree of participation in the crimes “would not be to [Burger’s] benefit.” App. 49. See 753 F. 2d, at 935 . 1

*819 II

In Strickland v. Washington, 466 U. S. 668 (1984), this Court held that a “defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components.” Id., at 687 . First, the defendant must show that counsel’s errors were so serious that his performance as the “counsel” guaranteed under the Sixth Amendment was deficient. Second, the defendant must show that he suffered prejudice because of counsel’s performance. In the context of a capital sentence, the defendant must demonstrate “a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id., at 695 .

A

In assessing the adequacy of counsel’s performance, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id., at 690 . But “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id., at 690-691 . Here, counsel did not believe that evidence of Burger’s violent and disturbed family background would benefit his client because Burger “had been involved in a beating and a number of things that indicated violence and stuff at an earlier [age].” App. 49. Counsel’s reason for not presenting the sentencing jury with evidence of Burger’s mental and emotional imma *820 turity is ambiguous. 2 It appears that counsel believed that the only relevant testimony in mitigation of a capital sentence could have been “something like he was a good boy and went to church.” Id., at 63. Most telling is counsel’s explanation of the type of mitigating evidence that would be relevant at the sentencing hearing: “anything good about him, anything — of course, it was my understanding that that is very broad. That you can generally put up anything you can find that is good about anybody in mitigation of the sentence.” Id., at 51.

Burger’s stunted intellectual and emotional growth and the details of his tragic childhood are far from “good,” and it is true that background information would have “indicated violence and stuff at an earlier [age],” id., at 49. But this Court’s decisions emphasize that mitigating evidence is not necessarily “good.” Factors that mitigate an individual defendant’s moral culpability “ste[m] from the diverse frailties of humankind.” Woodson v. North Carolina, 428 U. S. 280, *821 304 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.) (emphasis added). In a capital case where the defendant is youthful — in fact, a child, measured by chronological, 3 emotional, or intellectual maturity — evidence of these facts is extraordinarily germane to the individualized inquiry that the sentencing jury constitutionally is required to perform. “[Ejvidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance is particularly relevant,” Eddings v. Oklahoma, 455 U. S. 104, 115 (1982), “because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” California v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, J., concurring). See Zant v. Stephens, 462 U. S. 862, 885 (1983) (defendant’s mental illness perhaps should mitigate the penalty). This Court’s previous observation bears emphasis:

“[YJouth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly ‘during the formative years of childhood and adolescence,, minors often lack the experience, perspective, and judgment’ expected of adults. Bellotti v. Baird, 443 U. S. 622, 635 (1979).” Eddings v. Oklahoma, supra, at 115-116 (footnotes omitted).

See Gallegos v. Colorado, 370 U. S. 49, 54 (1962) (a 14-year-old “cannot be compared with an adult” when assessing the voluntariness of a confession). Where a capital defendant’s *822 chronological immaturity is compounded by “serious emotional problems, ... a neglectful, sometimes even violent, family background, . . . [and] mental and emotional development ... at a level several years below his chronological age,” id., at 116 , the relevance of this information to the defendant’s culpability, and thus to the sentencing body, is particularly acute. The Constitution requires that a capital-sentencing system reflect this difference in criminal responsibility between children and adults.

Where information at the sentencing stage in a capital case may be highly relevant, counsel’s burden of justifying a failure to investigate or present it is similarly heightened. There is no indication that counsel understood the relevance, much less the extraordinary importance, of the facts of Burger’s mental and emotional immaturity, and his character and background, that were not investigated or presented in this case. This evidence bears directly on Burger’s culpability and responsibility for the murder and in fact directly supports the strategy counsel claimed to have deemed best — to emphasize the difference in criminal responsibility between the two participants in the crime. Absent an explanation that does not appear in this record, counsel’s decision not to introduce — or even to discover — this mitigating evidence is unreasonable, and his performance constitutionally deficient. 4

*823 B

Imposing the death penalty on an individual who is not yet legally an adult is unusual and raises special concern. 5 At *824 least, where a State permits the execution of a minor, great care must be taken to ensure that the minor truly deserves to be treated as an adult. A specific inquiry including “age, actual maturity, family environment, education, emotional and mental stability, and . . . prior record” is particularly relevant when a minor’s criminal culpability is at issue. See Fare v. Michael C., 442 U. S. 707, 734, n. 4 (1979) (POWELL, J., dissenting). No such inquiry occurred in this case. In every realistic sense Burger not only was a minor according to law, but clearly his mental capacity was subnormal to the point where a jury reasonably could have believed that death was not an appropriate punishment. Because there is a reasonable probability that the evidence not presented to the sentencing jury in this ease would have affected its outcome, Burger has demonstrated prejudice due to counsel’s deficient performance.

Ill

As I conclude that counsel’s performance in this case was deficient, and the deficiency may well have influenced the sentence that Burger received, I would vacate Burger’s death sentence and remand for resentencing.

Counsel testified:

“I felt the way to try that ease was to take the evidence that was there and try to minimize Mr. Burger’s participation in the crime. ... I felt that case should have been tried on the facts and make the District Attorney — I say make him, use whatever rules of evidence to exclude those harmful facts, and then use the — my opinion in representing Burger was then use those facts to show that he was just there and was not entitled to be treated in the same manner as the person who was — who was the main actor in the thing. That he was a secondary, he was in a secondary position. Since there were two punishments in that particular situation, that he should be *819 given the lesser of the two. I think that’s the way that ease should have been tried, and that’s the way I tried it. And, I don’t know of — today, if I had to go back and try it again I would do it in the same manner — I say in the same manner, much the same manner, using the same thing and hope I got a different jury. That’s all. And, that’s it.” App. 63-64.

Counsel testified:

“The particular psychologist I had was — gave Mr. Burger an I. Q. test and found it to be 82. And, he also was of the opinion that Mr. Burger was a sociopath with a psychopathic personality. And, on cross examination in the confession phase, this attorney asked, he commented to the effect, I can’t remember the exact comment, sociopath was not crazy, he didn’t belong in an insane asylum, and he wasn’t — shouldn’t be treated as a criminal because of his compulsive behavior. But, made something — well, you can’t put them in an insane asylum because they will let him out. Didn’t know what to do with him. I felt that would be — that and related questions would be asked in the presence of the jury, so I decided at that point not to use the testimony of the psychologist in that phase.” Id., at 62.

When asked whether he considered using a psychologist for something other than showing that Burger’s confession was involuntary, counsel responded:

“I could have — if he had been of the opinion, you know, question of sanity, I could have used that instance, but he was not of that opinion. I did not see the benefit of going out and trying to find the sociologist, or psychologist to use in that particular trial in that particular place, because I did not think that that would be effective.” Id., at 63.

Although an individual may be held criminally responsible at the age of 13, Ga. Code Ann. § 16-3-1 (1984), the age of legal majority in Georgia is 18 years, § 39-1-1 (1982).

As the Court notes, ante, at 779-780, Alvin Leaphart, the appointed counsel who represented petitioner in the state courts, was an experienced and respected lawyer. In concluding there was ineffective assistance in this case, I do not question the Court’s view. Any lawyer who has participated in litigation knows that judgment calls — particularly in a trial— cannot always be reasonable or correct. Moreover, this Court has not yet addressed the question presented in Thompson v. State, 724 P. 2d 780 (Okla. Crim. App. 1986), cert. granted, 479 U. S. 1084 (1987), whether the Eighth Amendment imposes an age limitation on the application of the death penalty. See Eddings v. Oklahoma, 455 U. S. 104, 110, n. 5 (1982).

I also share the concern expressed by Judge Edenfield in Blake v. Zant, 513 F. Supp. 772, 802, n. 13 (SD Ga. 1981), that the routine raising of charges of ineffective assistance of counsel is likely to have a significant *823 “chilling effect” on the willingness of experienced lawyers to undertake the defense of capital cases. See ante, at 780, n. 2. In this ease, however, I conclude that the facts and circumstances that no one now disputes clearly show that counsel made a serious mistake of judgment in failing fully to develop and introduce mitigating evidence that the Court concedes was “relevant” and that the jury would have been compelled “to consider.” See ante, at 789, n. 7.

We noted in Eddings v. Oklahoma that “[ejvery State in the country makes some separate provision for juvenile offenders.” 455 U. S., at 116 , n. 12 (citing In re Gault, 387 U. S. 1, 14 (1967)). Of the 37 States that have enacted capital-punishment statutes since this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), 11 prohibit the execution of persons under 18 at the time of the offense. Three States-impose a prohibition at age 17, and Nevada sets its limit at age 16. Streib, The Eighth Amendment and Capital Punishment of Juveniles, 34 Cleveland State L. Rev. 363, 368-369, and nn. 33-36 (1986). Of the States permitting imposition of the death penalty on juveniles, over half of them explicitly denominate youth as a mitigating factor. The American Law Institute’s Model Penal Code capital-punishment statute states an exclusion for defendants “under 18 years of age at the time of the commission of the crime.” § 210.6(1)(d) (1980). The Institute reasons “that civilized societies will not tolerate the spectacle of execution of children, and this opinion is confirmed by the American experience in punishing youthful offenders.” Id., Comment, p. 133. In 1983, the American Bar Association adopted a resolution stating that the organization “oppo[ses], in principle, the imposition of capital punishment on any person for an offense committed while that person was under the age of 18.” See ABA Opposes Capital Punishment for Persons under 18, 69 A. B. A. J. 1925 (1983).

International opinion on the issue is reflected in Article 6 of the International Covenant on Civil and Political Rights and the American Convention on Human Rights. See United Nations, Human Rights, A Compilation of International Instruments 9 (1983). See also Weissbrodt, United States Ratification of the Human Rights Covenants, 63 Minn. L. Rev. 35 , 40 (1978). Both prohibit the execution of individuals under the age of 18 at the time of their crime. The United States is not a party to either of these treaties, but at least 73 other nations have signed or ratified the International Covenant. See Weissbrodt, supra. All European countries forbid imposition of the death penalty on those under 18 at the time of their *824 offense. Streib, supra, at 389 (citing Amnesty International, The Death Penalty (1979)).