Amicus Curiae Brief — Terence Tramaine Andrus, Petitioner v. Texas

CAPITAL CASE

No. 21-6001

IN THE

Supreme Court of the United States

___________

TERENCE TRAMAINE ANDRUS,

v.

TEXAS,

___________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

___________

BRIEF OF NATIONAL ALLIANCE ON MENTAL

ILLNESS AND NATIONAL ASSOCIATION OF

SOCIAL WORKERS AS AMICI CURIAE

SUPPORTING PETITIONER

___________

PETER KEISLER*

TOBIAS S. LOSS-EATON

MICHELE L. ARONSON

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

pkeisler@sidley.com

Counsel for Amici Curiae

November 17, 2021

*Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................iii

INTERESTS OF AMICI CURIAE .............................. 1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT........................................................... 2

ARGUMENT ................................................................ 3

I. The court below erroneously discounted the

extent and impact of childhood abuse and

neglect as mitigating evidence. .............................. 3

A. Exposure to traumatic events in childhood

can cause profound and long-lasting

negative effects well into adulthood. ................ 4

B. Mr. Andrus experienced childhood trauma

that may have caused profound and longlasting negative effects well into adulthood. ... 6

C. Mr. Andrus’s childhood trauma is precisely

the type of mitigating evidence this Court

has recognized could move at least one

death-penalty juror. .......................................... 8

D. The court below erroneously concluded that

Mr. Andrus was not physically abused

because he gave inconsistent accounts of

abuse. ............................................................... 10

II. The court below misconstrued several factors

consistent with mental illness as disproving

mental illness, with no record or scientific

support. ................................................................. 11

A. Serious mental illness may not preclude

daily functioning. ............................................ 12

(i)

ii

B. People with mental illness may deny their

illness or decline medical treatment for

many reasons. ................................................. 13

C. Mental

illness

presents

differently

throughout a person’s life. .............................. 15

CONCLUSION .......................................................... 18

iii

CASES

TABLE OF AUTHORITIES

Page

Porter v. McCollum, 558 U.S. 30 (2009) ......

9

Rompilla v. Beard, 545 U.S. 374 (2005) ......

8, 9

Sears v. Upton, 561 U.S. 945 (2010) ............

8

Wiggins v. Smith, 539 U.S. 510 (2003) ........

3, 9

Williams v. Taylor, 529 U.S. 362 (2000)......

8, 9

SCHOLARLY AUTHORITIES

Patrick W. Corrigan et al., The Impact of

Mental Illness Stigma on Seeking and

Participating in Mental Health Care, 15

Psych. Sci. Pub. Int. 37 (2014) ..................

14

Jennifer A. Engelhardt, The Developmental

Implications of Parentification: Effects on

Childhood Attachment, 14 Graduate

Student J. Psych. 45 (2012) ......................

13

Julia I. Herzog & Christian Schmahl,

Adverse Childhood Experiences and the

Consequences

on

Neurobiological,

Psychosocial, and Somatic Conditions

Across the Lifespan, 9 Frontiers

Psychiatry 420 (2018) ...............................

5

James T. R. Jones, “High Functioning”:

Successful Professionals with Severe

Mental Illness, 7 Duke F. L. & Soc.

Change (2015) ...........................................

12

Joyce Kosak, Comment: Mental Health

Treatment and Mistreatment in Prisons,

32 Wm. Mitchell L. Rev. 389 (2005) .........

16

iv

Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in

U.S. Prisons: A Challenge for Medical

Ethics, 38 J. Am. Acad. Psychiatry & L.

104 (2010) ..................................................

16

Henry A. Nasrallah, Consequences of

Misdiagnosis: Inaccurate Treatment and

Poor Patient Outcomes in Bipolar

Disorder, 76 J. Clinical Psychiatry E1328

(2015), https://pubmed.ncbi.nlm.nih.gov/

26528666/ ..................................................

16

Charles B. Nemeroff, Paradise Lost: The

Neurobiological and Clinical Consequences of Child Abuse and Neglect, 89 Neuron

Rev. 892 (2016) ..........................................

5

Julia C. Poole et al., Do Adverse Childhood

Experiences Predict Adult Interpersonal

Difficulties? The Role of Emotion Dysregulation, 80 Child Abuse & Neglect 123

(2018) .........................................................

5

OTHER AUTHORITIES

ACEs and Toxic Stress: Frequently Asked

Questions, Ctr. on the Developing Child,

Harv. Univ., https://bit.ly/3cgA2DW (last

visited Nov. 15, 2021)................................

4

Adverse Childhood Experiences (ACEs),

Ctrs. for Disease Control & Prevention

(Nov. 5, 2019), https://www.cdc.gov/

vitalsigns/aces/index.html ........................

4

Adverse Childhood Experiences, Nat’l All.

on Mental Illness Sw. Wash., https://

namiswwa.org/about-mental-illness/aces/

(last visited Nov. 15, 2021) ....................... 4, 6

v

Am. Bar Ass’n, Severe Mental Illness and

the Death Penalty (Dec. 2016)...................

16

Am. Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders

(5th ed. 2013).............................................

13

Anosognosia, Nat’l All. on Mental Illness,

https://www.nami.org/About-MentalIllness/Common-with-Mental-Illness/

Anosognosia (last visited Nov. 15, 2021) ...

13

Iruma Bello & Lisa Dixon, Treating

Affective Psychosis and Substance Use

Disorders Within Coordinated Specialty

Care (2017), https://bit.ly/31YEXaF .........

12

Children’s Bureau, U.S. Dep’t of Health &

Hum. Servs., Supporting Brain Development in Traumatized Children and Youth

(Sept. 2017), https://www.childwelfare.

gov/pubpdfs/braindevtrauma.pdf .............

5

Patrick W. Corrigan & Petra Kleinlein, The

Impact of Mental Illness Stigma, in On the

Stigma of Mental Illness: Practical

Strategies for Research and Social Change

11 (Patrick W. Corrigan ed., 2005) ...........

14

Mental Health Am., The State of Mental

Health in America (2022) ..........................

14

Nat’l Ass’n of Soc. Workers, Social Work

Speaks: National Association of Social

Workers Policy Statements 2018–2020

(11th ed. 2018)........................................... 1, 16

vi

Treatments, Nat’l All. on Mental Illness,

https://www.nami.org/About-MentalIllness/Treatments (last visited Nov. 15,

2021) ..........................................................

16

Why Do Children Not Tell?, Child Safe of

Cent. Mo., Inc., https://www.childsafehouse.

org/info/faqs/why-do-children-not-tell/

(last visited Nov. 15, 2021) .......................

10

Why Do Some Individuals with Serious

Mental Illness Refuse to Take Medication?,

Treatment Advoc. Ctr. (Mar. 2014), https://

bit.ly/3wT68is ............................................

15

Phelan Wyrick & Kadee Atkinson, Examining the Relationship Between Childhood

Trauma and Involvement in the Justice

System, Nat’l Inst. Just. J., no. 283

(Apr. 29, 2021), https://bit.ly/3Fg8V8w ....

6

INTERESTS OF AMICI CURIAE 1

The National Alliance on Mental Illness (“NAMI”) is

the nation’s largest grassroots mental health organization. It is dedicated to building better lives for the

millions of American affected by mental illness. NAMI

has a long history of advocating on behalf of people

with mental illness involved with criminal justice systems and opposing the death penalty for people with

serious mental illness.

The National Association of Social Workers

(“NASW”) is a professional membership organization

with 110,000 social workers in 55 chapters. The

NASW Texas Chapter has about 5,300 members. Since

1955, NASW has worked to develop high standards of

social work practice while unifying the social work profession. NASW develops policy statements on issues of

importance to the social work profession, promulgates

professional policies, conducts research, publishes professional studies and books, provides continuing education, and promotes and administers the NASW Code

of Ethics. NASW with its Texas Chapter emphasizes

the importance in criminal sentencing, especially in

death penalty cases, of full consideration of trauma,

mental illness, and other mitigating evidence. See

Nat’l Ass’n of Soc. Workers, Social Work Speaks: National Association of Social Workers Policy Statements

2018–2020, at 29, 32 (11th ed. 2018) (hereinafter

NASW, Social Work Speaks). NASW believes that

1 No counsel for any party authored this brief in whole or in

part, and no entity or person other than amici or their counsel

made any monetary contribution toward the preparation or submission of this brief. The parties received timely notice of amici’s

intent to file this brief and consented to its filing.

2

equal application of the law and protection of the dignity of every human being are fundamental to a legal

system that upholds social justice.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Texas Court of Criminal Appeals (“CCA”) concluded below that Petitioner Terence Andrus’s mitigating evidence—which this Court described as “abundant,” “vast,” “compelling,” “powerful,” “myriad,” “voluminous,” and previously “untapped”—was actually

“not particularly compelling,” “relatively weak,” and

deserved “skepticism.” The CCA thus brushed aside

evidence that Mr. Andrus spent his formative years in

an environment plagued with crime and violence,

raised in an unstable and abusive home by a mother

whose drug use or symptoms of mental illness prevented her from adequately caring for Mr. Andrus or

his four siblings. The CCA’s conclusions depended on

the judges’ unsupported intuitions about how childhood trauma and mental illness manifest themselves.

Not only are these intuitions unsupported by clinical

research, but they also rest on inaccurate stereotypes

about mental illness.

In fact, both settled clinical understandings and

common sense show that the court below was wrong.

In turn, a single juror could easily have concluded, in

line with this Court’s prior decision, that this extensive mitigating evidence changed the balance of aggravating and mitigating factors for Mr. Andrus’s moral

culpability. Because Mr. Andrus’s death sentence required a unanimous jury recommendation, the prejudice inquiry requires only “‘a reasonable probability

that at least one juror would have struck a different

balance’ regarding [Mr. Andrus’s] ‘moral culpability.’”

3

Pet. App. 23 (citing Wiggins v. Smith, 539 U.S. 510,

537–38 (2003)).

Established clinical research shows that exposure to

traumatic events in childhood—like those Mr. Andrus

experienced as a child—has deep and enduring effects

throughout a person’s life. Because exposure to abuse,

neglect, violence, and instability during childhood can

cause long-lasting psychological, behavioral, and social effects, evidence of exposure to childhood trauma

can be powerful mitigating evidence. The CCA improperly discounted this evidence, which there is a “reasonable probability” a juror would have credited.

Further, the CCA’s mistaken intuitions about mental illness led it to misconstrue several facts as disproving any mental illness, when those facts are actually consistent with mental illness. For instance, people with mental illness may still be able to care for

family members at certain points in time, or they may

deny their mental illness or refuse treatment for it. Indeed, the record as a whole shows that Mr. Andrus has

struggled with mental illness throughout much of his

life.

ARGUMENT

I. The court below erroneously discounted the

extent and impact of childhood abuse and

neglect as mitigating evidence.

Traumatic childhood experiences can cause profound impairments, including long-term psychological,

behavioral, social, and biological consequences. This

Court recognized that Mr. Andrus was exposed to traumatic events during his childhood, including “extreme

neglect and privation” and “a family environment

filled with violence and abuse.” Pet. App. 18. And the

record is clear that Mr. Andrus suffers from serious

4

mental illness. See 3EHRR70. 2 “Even Andrus’s jail

records—upon which the State and the CCA relied

heavily—posit the prospect of schizophrenia, mood disorder, schizophrenia affective disorder, bipolar disorder, and post-traumatic stress disorder.” Pet. 32. Yet,

as the petition explains (at 21–28), the CCA disagreed

with this Court and rejected this significant mitigating

evidence.

Simply put, if a majority of this Court could view the

record as establishing “compelling” mitigating factors,

at least one juror could reasonably do so too.

A. Exposure to traumatic events in childhood can cause profound and long-lasting negative effects well into adulthood.

Trauma transforms the brains of children who experience it. Traumatic experiences that can produce these

brain changes include suffering abuse or neglect; witnessing violence in the home or community; and growing up in a household with substance misuse, mental

health problems, or parental separation—all of which

happened to Mr. Andrus. See Adverse Childhood Experiences, Nat’l All. on Mental Illness Sw. Wash.,

https://namiswwa.org/about-mental-illness/aces/ (last

visited Nov. 15, 2021) (hereinafter NAMI, ACEs). Exposure to trauma causes toxic stress, which can impair

brain development and affect the body’s stress response. See Adverse Childhood Experiences (ACEs),

Ctrs. for Disease Control & Prevention (Nov. 5, 2019),

https://www.cdc.gov/vitalsigns/aces/index.html; ACEs

2 This brief uses the same citation format for state habeas proceedings as the Petition. See Pet. ii–iii. “EHRR” refers to the Reporter’s Record for Mr. Andrus’s state habeas evidentiary hearing, “SX” refers to an exhibit offered by the State in the habeas

proceeding or at trial, and “DX” refers to an exhibit offered by

Mr. Andrus in the habeas proceeding.

5

and Toxic Stress: Frequently Asked Questions, Ctr. on

the Developing Child, Harv. Univ., https://bit.ly/

3cgA2DW (last visited Nov. 15, 2021). Brain imaging

studies have confirmed that changes occur in the

structure and functioning of the brain of a mistreated

child. See Charles B. Nemeroff, Paradise Lost: The

Neurobiological and Clinical Consequences of Child

Abuse and Neglect, 89 Neuron Rev. 892, 899–901

(2016).

These trauma-induced changes cause adverse consequences that can persist and remain significant

throughout adulthood. For example, the changes can

lead to cognitive impairment and emotional dysregulation, and they can significantly increase the risk of

developing mental and behavioral health issues like

Post-Traumatic Stress Disorder (“PTSD”), depression,

bipolar disorder, and substance abuse disorders. Children’s Bureau, U.S. Dep’t of Health & Hum. Servs.,

Supporting Brain Development in Traumatized Children and Youth 2 (Sept. 2017), https://www.

childwelfare.gov/pubpdfs/braindevtrauma.pdf. Studies have found that emotional dysregulation, the inability to control or regulate emotional responses to provocative stimuli, is the mechanism that connects childhood trauma and interpersonal functioning in adulthood. See, e.g., Julia C. Poole et al., Do Adverse Childhood Experiences Predict Adult Interpersonal Difficulties? The Role of Emotion Dysregulation, 80 Child

Abuse & Neglect 123 (2018). And recent research has

documented the relationship between traumatic childhoods events and PTSD. See, e.g., Julia I. Herzog &

Christian Schmahl, Adverse Childhood Experiences

and the Consequences on Neurobiological, Psychosocial, and Somatic Conditions Across the Lifespan, 9

Frontiers Psychiatry 420 (2018). Children who experience traumatic events are also more likely to suffer

6

from depression and chronic disease in adulthood. See

Phelan Wyrick & Kadee Atkinson, Examining the Relationship Between Childhood Trauma and Involvement in the Justice System, Nat’l Inst. Just. J., no. 283

(Apr. 29, 2021), https://bit.ly/3Fg8V8w.

B. Mr. Andrus experienced childhood

trauma that may have caused profound

and long-lasting negative effects well

into adulthood.

As a child, Mr. Andrus experienced textbook traumas. He suffered neglect, abuse, and violence; he witnessed violence in the home and community; he grew

up in a household with substance misuse; and he was

raised in an unstable household because of parental

separation or household members being in jail or

prison. See NAMI, ACEs, supra; Pet. App. 18. These

types of damaging childhood experiences can have negative long-term effects and adversely impact a person’s

demeanor, behaviors, and mental and emotional wellbeing. See NAMI, ACEs, supra.

This Court has recognized that Mr. Andrus’s childhood was “marked by extreme neglect.” Pet. App. 18.

“By the time Andrus was 12, his mother regularly

spent entire weekends, at times weeks, away from her

five children to binge on drugs,” and when his mother

was with her children, “she often was high.” Id. at 17.

She left “her children to fend for themselves,” and

many times “there was not enough food to eat.” Id. at

18. Mr. Andrus’s biological father was rarely around,

as he was “in and out of prison for much of Andrus’

life.” Id. As a result, Mr. Andrus was forced to care for

his four siblings when he was only twelve years old. Id.

at 19.

Mr. Andrus also grew up in an environment of “violence and abuse.” Pet. App. 18. Mr. Andrus lived in a

7

neighborhood where there were “frequent shootings”

and “gang fights.” Id. His mother dated “drug-addicted, sometimes physically violent, boyfriends.” Id.

at 17. She would introduce Mr. Andrus and his siblings

to her boyfriends. One of those boyfriends raped Mr.

Andrus’s younger half-sister. Id. at 18. Another boyfriend was killed in a shooting. Id. at 19.

Not only did Mr. Andrus grow up in a violent neighborhood around violent people, but he also witnessed

violence and its effects firsthand. One of his mother’s

boyfriends physically abused her. Pet. App. 17. And

Mr. Andrus remembers his mother coming home covered with the blood of her murdered boyfriend.

6EHRR194. Mr. Andrus also received “beatings” from

his mother that left bruises, SX32 at 2, and his

mother’s boyfriends punched him hard enough to

knock the wind out of him, id. at 4.

Substance misuse was also a staple of Mr. Andrus’s

childhood environment. He “was six years old when his

mother began selling drugs out of the apartment

where Andrus and his four siblings lived.” Pet. App.

17. She often sold drugs at home, in front of her children, and she was often high in front of them. Id. at

18.

Finally, Mr. Andrus suffered familial separation and

had incarcerated family members. Mr. Andrus’s

mother was often absent or high; his father was incarcerated; and several father figures—in the form of his

mother’s boyfriends—were incarcerated, and one was

murdered. Mr. Andrus also faced the traumatic loss of

his sister, when Child Protective Services removed her

from their home after her biological father raped her

at a young age. See Pet. App. 17. Whether or not

Mr. Andrus knew that his sister was sexually abused,

he was unquestionably aware of her removal from the

household. The removal of a sibling by the state after

8

a rape must have exacerbated an already unstable,

traumatic environment.

It is thus unsurprising that, since at least his first

diagnosis at age ten or eleven, Mr. Andrus has struggled with mental health issues. See Pet. App. 19. A

clinical psychologist who evaluated Mr. Andrus as an

adult concluded that he experienced “‘very pronounced

trauma’ and posttraumatic stress disorder symptoms

from, among other things, ‘severe neglect’ and exposure to domestic violence, substance abuse, and death

in his childhood.” Id. at 20.

C. Mr. Andrus’s childhood trauma is precisely the type of mitigating evidence

this Court has recognized could move at

least one death-penalty juror.

The pronounced childhood trauma, violence, and neglect that Mr. Andrus experienced track the mitigating evidence that this Court has recognized could lead

at least one juror to spare a defendant’s life.

Indeed, the Court has found in several comparable

cases that exposure to violence during childhood—in

the form of physical abuse or domestic violence—is

powerful mitigating evidence that could impact the

Strickland prejudice calculus. For example, in Williams v. Taylor, the substantial mitigating evidence

that petitioner’s counsel failed to investigate and present included evidence that “Williams had been severely and repeatedly beaten by his father.” 529 U.S.

362, 390, 395 (2000). Rompilla v. Beard similarly concluded that counsel’s failure to examine a file revealing

that petitioner’s father often beat his mother, that his

parents fought violently, and that his father beat him

when he was young constituted prejudice that warranted habeas relief. 545 U.S. 374, 390–92 (2005). This

Court also made similar findings in Sears v. Upton,

9

where petitioner’s parents “had a physically abusive

relationship” and divorced, and his father was “verbally abusive” and disciplined him with “age-inappropriate military-style drills.” 561 U.S. 945, 948, 956

(2010) (per curiam). So too in Porter v. McCollum,

where petitioner “routinely witnessed his father beat

his mother” and was his “father’s favorite target, particularly when Porter tried to protect his mother.” 558

U.S. 30, 33, 43 (2009) (per curiam). Mr. Andrus’s childhood environment teemed with this type of violence

and abuse: he grew up in gang- and crime-ridden

neighborhoods, lived in a home where a sibling was

raped, witnessed a boyfriend abuse his mother, and

suffered physical abuse himself.

This Court has also recognized that extreme neglect

during childhood of the type Mr. Andrus experienced

is mitigating evidence. In Wiggins, “on at least one occasion, [petitioner’s] mother left him and his siblings

alone for days without food.” 539 U.S. at 525. Mr. Andrus was similarly left on his own with his siblings

while his mother “would occasionally just take a week

or a weekend and binge [on drugs].” DX13 at 2. This

Court also recognized the powerful mitigating effect of

neglect in Rompilla, where petitioner’s father locked

him in a small and filthy dog pen, petitioner had an

isolated background, his family had no indoor plumbing, and he slept in the attic with no heat. 545 U.S. at

392. And the Court has noted that a person’s parents

being imprisoned (for neglect) is mitigating evidence

as well. Williams, 529 U.S. at 395.

Finally, the Court has held that absent or lost parental figures can serve as mitigating evidence. For example, in Williams, petitioner “had been committed to the

custody of the social services bureau for two years during his parents’ incarceration.” Id. Similarly, Mr. Andrus went without his mother for extended periods of

10

time, spent most of his childhood with his father being

in and out of prison, and experienced the traumatic

loss of other parental and familial figures in his life.

In short, the record here contains evidence that this

Court has consistently held to create mitigating circumstances. Thus, the decision below not only disregards this Court’s prior opinion in this very case; it

also clashes with multiple decisions of this Court considering similar facts.

D. The court below erroneously concluded

that Mr. Andrus was not physically

abused because he gave inconsistent accounts of abuse.

The CCA appears to have concluded that Mr. Andrus

could not have experienced physical abuse as a child—

a hallmark traumatic experience—because he once

“denied a history of physical abuse” during an evaluation at a Texas Youth Commission (“TYC”) corrections

facility. Pet. App. 6. The CCA reached that conclusion

even though Mr. Andrus had also told a clinical psychologist retained by his trial counsel that his mother

and her boyfriends would beat him: “As for physical

abuse, Applicant told Dr. Brown that his mother would

beat him with a board that left bruises on him and that

her boyfriends would beat him with their fists at her

behest.” Id. The CCA thus concluded from this conflicting evidence that there was no reasonable probability

that at least one juror would find that Mr. Andrus had

been physically abused.

But victims of childhood abuse often deny their

abuse. See, e.g., Why Do Children Not Tell?, Child Safe

of Cent. Mo., Inc., https://www.childsafehouse.org/info/

faqs/why-do-children-not-tell/ (last visited Nov. 15,

2021). There are many reasons for this, including internalized shame, fear that nobody will believe them,

11

and dissociation. Thus, that a person denied a history

of physical abuse once—but not at other times—does

not necessarily mean no abuse occurred. Rather, a

childhood victim’s inconsistent accounts of physical

abuse are entirely consistent with abuse taking place.

What is more, denying a history of abuse or trauma

is particularly common during intake at a correctional

facility. As Dr. Hammel, a mental health expert, testified during the habeas proceedings: “[I]f you have a

history of trauma . . . you tend to be on high alert and

you’re aware that weakness is not something you want

to display.” 7EHRR32. “And so entering into a system

where you’re talking to a psychologist who you don’t

know and don’t trust, people usually are not reporting

on—they’re not reporting accurately on their history of

trauma, their family histories, et cetera.” Id. Thus, it

is no surprise that Mr. Andrus, who was only 16 years

old when he entered the TYC juvenile detention center, did not reveal his history of abuse. The CCA thus

erred by assuming, without support, that no reasonable juror could conclude that Mr. Andrus had indeed

been abused simply because he denied it on this occasion—but not later.

II. The court below misconstrued several factors consistent with mental illness as disproving mental illness, with no record or scientific support.

The CCA also relied on dangerous and inaccurate

stereotypes to conclude that Mr. Andrus did not suffer

from a mental illness. In particular, the CCA assumed

that several facts—Mr. Andrus taking care of his siblings when he was a child, denying mental illness, and

refusing to take psychotropic drugs, as well as a

change in the presentation of mental illness throughout his life—disproved any mental illness. But these

unsupported assumptions are simply wrong. Mental

12

illness may not preclude a person from caring for family members. It is also common for people with mental

illness to deny their illness and decline treatment, for

various reasons. Thus, the facts the CCA treated as

disproving mental illness are in fact consistent with

well-established clinical understandings of mental illness.

A. Serious mental illness may not preclude

daily functioning.

The CCA discounted Mr. Andrus’s mental illness in

part because he could sometimes take care of his four

siblings: “Whatever his mental health issues were,

those issues were not so severe or persistent as to keep

him from—according to his own testimony—taking

care of his siblings.” Pet. App. 7.

That Mr. Andrus was sometimes left on his own to

care for his siblings does not suggest that he lacked

any mental illness. Clinical studies show that mental

illness does not always impair intellectual or daily

functioning. In fact, some people diagnosed with serious mental illnesses can function very effectively in

certain areas, while still suffering from severe psychiatric disturbances. See, e.g., James T. R. Jones, “High

Functioning”: Successful Professionals with Severe

Mental Illness, 7 Duke F. L. & Soc. Change (2015). And

mental illness is not static, so having higher-functioning periods where one can care for others does not

mean one is not ill.

Indeed, the record is clear that Mr. Andrus was already struggling with mental illness when he was caring for his siblings: by the time he was cooking and

cleaning for them at age twelve, he had been diagnosed

with affective psychosis, Pet. App. 19, which is linked

to bipolar disorders or major depressive disorder,

Iruma Bello & Lisa Dixon, Treating Affective Psychosis

13

and Substance Use Disorders Within Coordinated Specialty Care 3 (2017), https://bit.ly/31YEXaF. In fact,

being forced to take care of his siblings at such an early

age itself inflicted “the trauma of being in charge of

[his] siblings and not having a parent there,”

6EHRR168, and may well have exacerbated his struggles with mental illness. Assigning a parental role to

children often results in “interpersonal deficits in the

child that can carry on into adulthood.” Jennifer A.

Engelhardt, The Developmental Implications of Parentification: Effects on Childhood Attachment, 14 Graduate Student J. Psych. 45, 45 (2012). That Mr. Andrus

was forced to care for his siblings, out of necessity, does

not mean he was not mentally ill, either then or later.

B. People with mental illness may deny

their illness or decline medical treatment for many reasons.

The CCA also suggested that Mr. Andrus was faking

a mental illness because “he decries having been

treated for [it] while in TYC.” Pet. App. 7. But people

with mental illness commonly deny or minimize their

conditions, for various reasons.

To start, the CCA’s suggestion ignores the well-documented phenomenon of anosognosia, a common condition where people with mental illness fail to recognize they are mentally ill. See Anosognosia, Nat’l All.

on Mental Illness, https://www.nami.org/About-Mental-Illness/Common-with-Mental-Illness/Anosognosia

(last visited Nov. 15, 2021); Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders

101 (5th ed. 2013) (“DSM-5”). Anosognosia is particularly pronounced in people experiencing active symptoms of psychosis (e.g., delusions, paranoia, auditory

hallucinations), which prevent people from recognizing their distorted thinking. See DSM-5, supra, at 101.

Mr. Andrus may have experienced these symptoms.

14

Dr. Hammel testified in the habeas proceedings that

he thought Mr. Andrus “had some experiences that

were outside of reality” while he was incarcerated, and

explained: “Put under enough stress and distress, the

psyche can break down and people can have transient

or temporary psychotic symptoms.” 7EHRR90. But

even people not suffering from active psychosis sometimes experience anosognosia too.

The CCA’s suggestion also ignores the well-documented stigma of mental illness, which often leads

people to conceal or deny their condition for fear that

disclosure will adversely impact them. Stigma can pervade the lives of people with mental illness in many

different ways, including the denial of personal and

professional opportunities and treatment in the criminal justice or healthcare system. See, e.g., Patrick W.

Corrigan & Petra Kleinlein, The Impact of Mental Illness Stigma, in On the Stigma of Mental Illness: Practical Strategies for Research and Social Change 11

(Patrick W. Corrigan ed., 2005). Mental illness stigma

is also a major factor that can prevent someone from

seeking care and treatment. See, e.g., Patrick W. Corrigan et al., The Impact of Mental Illness Stigma on

Seeking and Participating in Mental Health Care, 15

Psych. Sci. Pub. Int. 37 (2014). In fact, most adults

(56%) with a mental illness receive no treatment. Mental Health Am., The State of Mental Health in America

28 (2022).

The CCA was also skeptical about Mr. Andrus’s

mental illness because “TYC records . . . documented

[his] refusal to take psychotropic medications prescribed for him and the discontinuation of those medications.” Pet. App. 7. But again, people with mental

illness may refuse treatment for many reasons, including fears of stigma or the negative or unpredictable

15

side effects of medication. Indeed, many of the psychotropic medications prescribed to Mr. Andrus can have

a range of serious adverse side effects—especially if

they are prescribed incorrectly—including paradoxically worsening depression or anxiety. See Why Do

Some Individuals with Serious Mental Illness Refuse

to Take Medication?, Treatment Advoc. Ctr. (Mar.

2014), https://bit.ly/3wT68is. Moreover, people with

mental illness may refuse treatment because they

have had bad experiences with treatment in the past

or have a poor relationship with the mental health provider. See id. Mr. Andrus had no reason to trust the

medical staff at the juvenile corrections facility who

were trying to give him medications with serious side

effects.

For all these reasons, the CCA’s unsupported assumptions were mistaken. People with mental illness

sometimes deny their conditions or resist treatment,

in part because of the illness itself and in part because

of how our society treats people with mental illness.

These facts accord with Mr. Andrus’s serious diagnoses.

C. Mental illness presents

throughout a person’s life.

differently

The CCA also failed to appreciate that mental illness

is not static, and often presents in different ways

throughout a person’s life. Instead, the CCA repeatedly emphasized Mr. Andrus’s misbehavior while at

TYC as a juvenile, see Pet. App. 7, which it seemed to

view as inconsistent with his supposed high functioning at other times. But many factors could have exacerbated Mr. Andrus’s mental health struggles while he

was incarcerated at TYC, where he was subject to

harsh conditions and received the wrong treatment for

his mental illness. Indeed, multiple factors can affect

how mental illness presents at a particular moment,

16

including the person’s level of treatment, support, and

integration into society.

Incarceration—especially solitary confinement—can

exacerbate mental health conditions and cause serious

mental health dysfunctions. See NASW, Social Work

Speaks, supra, at 303; Am. Bar Ass’n, Severe Mental

Illness and the Death Penalty 16 (Dec. 2016) (“The

stress of jail and prison often aggravates these individuals’ symptoms, in particular if they are placed in solitary confinement.”) (citing Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement and Mental Illness

in U.S. Prisons: A Challenge for Medical Ethics, 38 J.

Am. Acad. Psychiatry & L. 104 (2010)). This includes

postincarceration syndrome, a set of symptoms present in many currently incarcerated and recently released prisoners caused by prolonged confinement in a

punishing environment. NASW, Social Work Speaks,

supra, at 304.

Additionally, misdiagnosis and improper treatment

can worsen symptoms of mental illness, particularly

among people who are incarcerated. See, e.g., Henry A.

Nasrallah, Consequences of Misdiagnosis: Inaccurate

Treatment and Poor Patient Outcomes in Bipolar Disorder, 76 J. Clinical Psychiatry E1328 (2015),

https://pubmed.ncbi.nlm.nih.gov/26528666/;

Joyce

Kosak, Comment: Mental Health Treatment and Mistreatment in Prisons, 32 Wm. Mitchell L. Rev. 389

(2005). By contrast, proper mental health treatment

can help people living with mental health conditions to

recover and live well. See Treatments, Nat’l All. on

Mental Illness, https://www.nami.org/About-MentalIllness/Treatments (last visited Nov. 15, 2021).

The record shows that Mr. Andrus’s incarceration,

solitary confinement, and improper treatment regimen could easily have exacerbated his mental illness.

Dr. Alonso-Katzowitz, a psychiatrist who reviewed

17

Mr. Andrus’s mental health history and treatment, explained: “While at the TYC, concerns were brought up

that Andrus was inappropriately prescribed medications for behavioral disorders which would not be indicated, and for depression when there had been no prior

diagnosis made.” DX1 at 5. The doctor also explained

the potentially serious adverse side effects of the medications that Mr. Andrus was prescribed while at TYC,

many of which could have made him temporarily dangerous, such as increasing the risk of suicidality, worsening depression or anxiety, or causing psychosis, aggressive behavior, mania, depression, anxiety, irritability, and insomnia. Id. Further, as the petition explains, TYC confined Mr. Andrus for weeks in a filthy,

cold cell in solitary confinement rather than provide

him with any meaningful health treatment. Pet. 31–

32.

Since 2012, however, there is virtually no record of

misconduct by Mr. Andrus. Dr. Hammel explained in

the habeas proceedings that this is not unexpected because Mr. Andrus is no longer taking “inappropriate”

medications, and because he has “been off substances

for an extended period of time and he ha[s] been in a

structured safe environment.” 7EHRR51. This illustrates that Mr. Andrus, like other individuals who

struggle with mental illness, can improve in the right

environment. It also underscores that the CCA was

wrong to assume that, because Mr. Andrus was sometimes able to function (as when caring for his siblings),

he must never have been mentally ill.

18

CONCLUSION

For these reasons, the Court should grant the petition for writ of certiorari, vacate the CCA’s decision below, summarily reverse, and order a new penaltyphrase trial.

Respectfully submitted,

PETER KEISLER*

TOBIAS S. LOSS-EATON

MICHELE L. ARONSON

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

pkeisler@sidley.com

Counsel for Amici Curiae

November 17, 2021

*Counsel of Record