# Amicus Curiae Brief — Johnson v. Texas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0417%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 350

## Text

ee ee OE PO eS pe ee eT ee

POTION FILED D\

IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1992

\

DORSIE LEE JOHNSON,
Petitioner,

vs.

THE STATE OF TEXAS,
Respondent.

On Writ of Certiorari to the
Court of Criminal Appeals of Texas

MOTION FOR LEAVE TO FILE AND
BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER
Criminal Justice Legal Fdn.
2131 L Street (95816)

Post Office Box 1199
Sacramento, CA 95812
Telephone: (916) 446-0345

Attorney for Amicus Curiae
Criminal Justice Legal Foundation

"BEST AVAILABLE COPY’

QUESTIONS PRESENTED
1. Did Jurek v. Texas approve the Texas capital
sentencing system of considering youth as mitigating only

as it bears on future dangerousness?

2. If so, should Jurek be overruled?

(1)

IN THE

Supreme Court of the Gnited States
OCTOBER TERM, 1992

DORSIE LEE JOHNSON,
Petitioner,
vs.

THE STATE OF TEXAS,

Respondent.

MOTION OF AMICUS CURIAE FOR LEAVE TO FILE
BRIEF IN SUPPORT OF RESPONDENT

Pursuant to Supreme Court Rule 37.3, the Criminal
Justice Legal Foundation respectfully moves for leave to
file the accompanying brief amicus curiae in support of
respondent in the above captioned case. Counsel for
respondent has consented, but counsel for petitioner has
refused consent.

In the accompanying brief, amicus argues that Jurek v.
Texas is dispositive of this case unless overruled, and that
Jurek ought not be overruled.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a
nonprofit California corporation organized to participate
in litigation relating to the criminal justice system as it
affects the public interest. CJLF seeks to bring the due
process protection of the accused into balance with the
rights of the victim and of society to rapid, efficient and

reliable determination of guilt and swift execution of
punishment.

Capital punishment has three functions: incapacita-
tion, deterrence, and retribution. It cannot perform these
functions if this Court constantly changes the rules,
striking down systems it has previously upheld. Such
undermining of the interests of victims of crime is con-
trary to the rights CJLF was formed to protect.

For the foregoing reasons, amicus curiae requests leave
to file its brief.

April, 1993
Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae
Criminal Justice Legal Foundation

TABLE OF CONTENTS
a ede cauuccladdadouecdudiecs i
I odo davucsecunddcucdtoceeia ili
ii cba vedenescacdsedeauans vii
en coca deccedeseeedetionanuce 1
Summary of facts andcase ....................... 1
i evedcnveetwbecacubabeces 3
PST EGS eG CUR Cbdeddcndcucnsdddcnsedééus 3

I
Jurek cannot be reconciled with the requirement
defendant seeks to impose ...................... 4
II
Jurek has not been overruled to date ............... 8
A. Lockett and its progeny ................... 8
ee ere oct eceeda cul 10
C. Parks and Graham ...................... 12
Ill
For the reasons stated in Casey, Jurek should
ices cunencudeteuscsuesecnsane 15
A. Normal stare decisis analysis ............. 15
pI Sahar Ge ied oe 15
eer TE PPR mime 16
3. Development of the law ............... 17
Pe EE nccivedcedcccddcsasntes 17

vi
B. National controversies ............-.++5+: 18
1. Public confidence ...........-----+45- 19
2. Promise of constancy ........-..--++-- 20

IV

Penry should remain limited to its narrow

interpretation .......-. 6.6.6 eee e esse eee renee 22
. c cc cc ccccccccccccocecececccesecess 23

vii
TABLE OF AUTHORITIES
Cases

Ake v. Oklahoma, 470 U. S. 68, 84 L. Ed. 2d 53,

TTT TTT TTT TTT TTT 16
Broadrick v. Oklahoma, 413 U. S. 601, 37 L. Ed. 2d 830,

kein vencgecanstesseuisues 6
Brockett v. Spokane Arcades, Inc., 472 U. S. 491,

86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985) ........... 6
Eddings v. Oklahoma, 455 U. S. 104, 71 L. Ed. 2d 1,

EEE cc cncsccnsescancenesesees 10
Franklin v. Lynaugh, 487 U. S. 164, 101 L. Ed. 2d 155,

EE eo vaccsccccescocsesess 12, 16
Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

EE cccccecedavedceceseens 19, 20
Graham v. Collins, 122 L. Ed. 2d 260,

SPEED oocccccecccecse 12, 13, 14, 17, 22
Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,

ED kivcctovcuaueeevcesesscess 7,8
Griffith v. Kentucky, 479 U. S. 314, 93 L. Ed. 2d 649,

en ne belenedwccebeee ne see es 17
Hitchcock v. Dugger, 481 U. S. 393, 95 L. Ed. 2d 347,

Co Ee eee 10, 17
Illinois v. Gates, 462 U. S. 213, 76 L. Ed. 2d 527,

EE sess epbindecdesepeaseewe 16
Johnson v. State, 773 S. W. 2d 322

PE ME EEUEED cccccacesccesccccccoes 1,2
Jurek v. State, 522 S. W. 2d 934 (1975) ............. 4
Jurek v. Texas, 428 U. S. 262, 49 L. Ed. 2d 929,

Pe ED sc6sebdsddccontenvends Passim

vill

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

Se GL EE oc cacececceveseneces 9, 10, 19
Marbury v. Madison, 1 Cranch (5 U. S.) 137,

Bi GPE ccccccccccesscosesccsecesecs 5
Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

SPITE wvccceccccccsecccccecccces 16
McGautha v. California, 402 U. S. 183, 28 L. Ed. 2d 711,

SP SUEFED cc vcccscceccoscesescscces 19
New York v. Ferber, 458 U. S. 747, 73 L. Ed. 2d 1113,

SEED Sc ed cecenscnccccscccceees 6
Payne v. Tennessee, 115 L. Ed. 2d 720,

CEE konccecconcscseverveses 5, 16
Pennsylvania v. Bruder, 488 U. S. 9, 102 L. Ed. 2d 172,

Pe PEED Sc ccnccccccccdtesesecscees 8
Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,

109 S. Ct. 2934 (1989) ......... 2, 5, 11, 12, 13, 17, 22
Planned Parenthood v. Casey, 120 L. Ed. 2d 674,

112 S. Ct. 2791 (1992) ........ 8, 14, 15, 17, 19, 21, 22
Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158,

PE ED Bcc vecdoscecensscnaccescces 16
Proffitt v. Florida, 428 U. S. 242, 49 L. Ed. 2d 913,

PRED Sc cecdctesiccenencsnsesoes 8
Roberts v. Louisiana, 428 U. S. 325, 49 L. Ed. 2d 974,

PEED cocci evecccdsenecccesene 5,9
Saffle v. Parks, 494 U. S. 484, 108 L. Ed. 2d 415,

PP UE boseccecsccccterscess 12, 13
Schall v. Martin, 467 U. S. 253, 81 L. Ed. 2d 207,

IED Docdcececevcescbsecccsceces 6

Skipper v. South Carolina, 476 U. S. 1, 90 L. Ed. 2d 1,
EE odo daccvesanecssccescses 10

Smith v. Murray, 477 U. S. 527, 91 L. Ed. 2d 434,

ED oo cote acct diwenedeced: 20
United States v. Raines, 362 U. S. 17, 4 L. Ed. 2d 524,
EET be cncsetccksccceccescnee Shae
United States v. Salerno, 481 U. S. 739, 95 L. Ed. 2d 697.
oe ee B® Pee 6
Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d S11.
SN ED Soc cccccedseeccccccs: 19
Woodson v. North Carolina, 428 U. S. 280,
49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) ........ g
Statute
3A Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)
PONE SEED wc cecccscucnsccessesss 21
Treatise

R. Rotunda & J. Nowak, Treatise on Constitutiona! Law

EER Se eh ee 5
Miscellaneous
U. S. Bureau of Justice Statistics, Capital Punishment
ee 16
U. S. Bureau of Justice Statistics, Sourcebook of
Criminal Justice Statistics—1991 (1992) ....... 19

IN THE

Supreme Court of the Gnited States
OCTOBER TERM, 1992

DORSIE LEE JOHNSON,
Petitioner,
vs.

THE STATE OF TEXAS,
Respondent.

BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF RESPONDENT

SUMMARY OF FACTS AND CASE

On March 23, 1986, defendant petitioner Dorsie
Johnson and his accomplice Amanda Miles decided to rob
Allsup’s convenience store in Snyder, Texas. They
decided in advance that they would murder any witnesses.
Johnson ordered the clerk, Jack Huddleston, to lie on the
floor. Johnson then shot Huddleston in the back of the
neck, killing him. The robbery netted $160 and two
cartons of cigarettes. Johnson v. State, 773 S. W. 2d 322,
324 (Tex. Crim. App. 1989).

Johnson subsequently robbed another store. Johnson
shot the store owner in the face, and his accomplice
stabbed the owner in the back. Fortunately, they did not
succeed in killing him. Pet. Brief 6-7. Following his
arrest for the second robbery and attempted murder,
Johnson confessed to the murder of Jack Huddleston.
773 S. W. 2d, at 324.

In the penalty phase, the principal defense witness was
defendant's father, Dorsie Johnson, Sr. Mr. Johnson
emphasized his son’s youth, 19 at the time of the crime,
and involvement with drugs. He tied his testimony
directly to the question of future dangerousness, empha-
sizing his son’s potential for rehabilitation. Pet. Brief 7-8.

The trial judge instructed the jury on the Texas
“special issues,” which ask the jury about the deliberate-
ness of the crime and the probability that the defendant
would be dangerous in the future. The judge also
modified the statutory instructions to explicitly tell the
jury to consider mitigating evidence in determining the
special issues. However, the court refused to instruct the
jury to consider mitigating evidence outside the frame-
work of the special issues. The jury answered the ques-
tions “yes,” and Johnson was accordingly sentenced to
death. Pet. Brief 10; App. Pet. Cert. B-1.

The Texas Court of Criminal Appeals affirmed on
June 21, 1989. 773 S. W. 2d, at 322. Five days later, this
Court decided Penry v. Lynaugh, 492 U. S. 302 (1989).
Johnson petitioned for rehearing based on Penry, contend-
ing insufficient consideration of his youth as a mitigating
factor. The state court denied rehearing in an unpub-
lished opinion. It held that the instructions in the case
permitted the jury “to express a reasoned moral response
to applicant’s youth.” App. Pet. Cert. B-3.

Johnson filed a petition for writ of certiorari in this
Court. The only question relating to the instruction of
the jury was this: “Did the Texas capital sentencing
statute unconstitutionally preclude the jury from giving
full mitigating effect to the petitioner’s youthful age at the
time of the offense?” Pet. Cert. i. The Court granted
certiorari limited to this question on February 19, 1993."

1. Defendant now appears to regret his own decision to limit consideration
to the question of age. See Pet. Brief 26, n. 14.

SUMMARY OF ARGUMENT

Jurek v. Texas controls this case. Jurek considered the
constitutionality of the Texas system as applied to the
facts in that case and found that the -special issues
provided constitutionally sufficient consideration of
Jurek’s mitigating evidence. The cases are factually
indistinguishable.

Jurek has not been overruled to date. Penry v.
Lynaugh created an exception for cases where important
mitigating evidence cannot be given any mitigating force
under the Texas special issues. While Penry might, on its
face, be read more broadly, any such interpretation is
precluded by Saffle v. Parks and Graham v. Collins.

For the reasons stated in Planned Parenthood v. Casey,
Jurek should not be overruled now. The Jurek rule is not
unworkable. ‘Texas has a massive reliance interest in
preserving judgments tried according to this Court's
determination of constitutionality. Jurek is not a remnant
of abandoned doctrine, and there are no changed facts
justifying its repudiation.

Capital punishment is an issue of great national
controversy. The people of America have already been
badly whipsawed on this issue. To strike down a sentenc-
ing system previously approved would do grave damage to
this Court as an institution and to the people’s faith in the
rule of law.

ARGUMENT

Petitioner Johnson contends that the Texas death
penalty statute upheld in Jurek v. Texas, 428 U.S. 262
(1976) is unconstitutional as applied to him. The reason,
he claims, is that even though the jury could have consid-
ered his youth in answering the “dangerousness” question,
the jury was not permitted to consider whatever mitigating
force his youth had beyond the scope of that question.

Given that Jurek upheld the sentencing system used in
this case, Johnson’s claim raises three questions. Can his
position be reconciled with Jurek? If not, has Jurek
already been overruled sub silento? If not, should Jurek
be overruled in this case? The answer to all three,
amicus submits, is no.

I. Jurek cannot be reconciled with the requirement
defendant seeks to impose.

Jurek v. Texas, 428 U. S. 262 (1976), the primary case
on the constitutionality of the Texas system, is conspicu-
ous by its absence from the defendant’s argument. His
brief makes only one passing reference to it. See Peti-
tioner’s Brief v, 17. There is a good reason for this
curious absence. Jurek is flatly contrary to defendant's
position.

Jurek, like Johnson, was young at the time of the
crime. He was 22. Jurek, 428 U. S., at 266. In consider-
ing Jurek’s case, the Texas Court of Criminal Appeals
held that age could be considered in mitigation in the
course of answering the second question. /d., at 272-273
(quoting Jurek v. State, 522 S. W. 2d 934, 939-940 (1975)).
This Court squarely and unmistakably held that this
consideration of Jurek’s proffered mitigation met the
requirements of the Eighth Amendment. The joint
opinion of Justices Stewart, Powell, and Stevens’ exam-
ined the very question at issue today and held that the
Texas procedure fulfilled the constitutional requirement
in that it “guides and focuses the jury’s objective consider-
ation of the particularized circumstances of the individual
offense and the individual offender... .” /d., at 274.
Though it is patently obvious that Jurek’s mitigating
evidence did have relevance beyond the statutory ques-

2. For brevity, we will refer to this opinion as the “lead opinion.”

tions, the Constitution did not require further instruction
in 1976.

Justice White’s concurring opinion, joined by Chief
Justice Burger and Justice Rehnquist, was even more
clearly in favor of validity, denying that there was any
requirement to consider mitigation at all. /d., at 279
(citing Roberts v. Louisiana, 428 U. S. 325, 348-350 (1976)
(dissent)). Justice Blackmun’s statement, by incorporating
his Furman dissent, similarly affirms that the judiciary has
no authority to create a mitigation requirement. 428
U. S., at 279. Thus, not only did Jurek expressly uphold
the procedure in question on indistinguishable facts, it did
so overwhelmingly. Cf. Payne v. Tennessee, 115 L. Ed. 2d
720, 737-738, 111 S. Ct. 2597, 2610-2611 (1991) (decision
by narrow margin).

Penry v. Lynaugh, 492 U. S. 302, 315 (1989) says that
Jurek dealt with “the facial validity of the Texas death
penalty statute.” Defendant gives this statement its most
extreme interpretation. He contends that Jurek stands for
nothing more than the proposition that the Texas system
does not produce an invalid sentence in every case. Pet.
Brief 17. Both the opinion itself and the normal function-
ing of the adjudication process contradict this narrow
reading.

Neither this Court nor any other federal court has the
authority to strike down a statute in the abstract. The
power of judicial review exists only as a component of the
power and the duty to decide cases. See Marbury v.
Madison, 1 Cranch (5 U. S.) 137, 177-178 (1803); United
States v. Raines, 362 U. S. 17, 20-21 (1960). Courts decide
cases on the facts presented by the cases, and a wide
variety of jurisdictional and prudential doctrines have
grown up to prevent the pronouncement of doctrine on
abstract questions not actually presented by the dispute
before the courts. See generally 1 R. Rotunda & J.
Nowak, Treatise on Constitutional Law § 2.13, at 161-242

(2d ed. 1992) (discussing “case or controversy,” advisory
opinions, mootness, ripeness, finality, and standing).

A “facial challenge” is a departure from the norm,
because it does not look to the facts of a concrete
dispute. Usually, this departure is made necessary by the
procedural posture of the case. When a class action is
brought, a facial challenge, if successful, will obtain relief
for the entire class without litigating each application.
See, e.g., Schall v. Martin, 467 U. S. 253, 268, n. 18 (1984).
An action for declaratory and injunctive relief brought by
persons who wish to engage in proscribed activity in the
future may be brought as a facial challenge, see, e.g,
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 494
(1985), because they do not wish their future freedom of
action to be limited to the facts presented in the action.
In the First Amendment area, one who seeks to invoke
the “overbreadth” doctrine necessarily makes a facial
challenge, since the challenger is taking advantage of a
special exception to the normal rules of standing, attack-
ing the statute as applied to others, even though it is
constitutional as applied to him. See New York v. Ferber,
458 U. S. 747, 768-769 (1982).

Outside the First Amendment area, criminal defen-
dants appealing their convictions and sentences very rarely
limit themselves to facial attacks, for good reason. “A
facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the chal-
lenger must establish that no set of circumstances exists
under which the Act would be valid.” United States v.
Salerno, 481 U. S. 739, 745 (1987) (emphasis added). In
Salerno, the preventive detention case, the trial court had
found that the defendant was the “boss” of a criminal
organization which routinely engaged in violence, includ-
ing murder. /d., at 743-744. It is inconceivable that if
preventive detention were permitted at all, it would not
be permitted in such a case. Salerno lost nothing by
foregoing the “as applied” challenge.

Defendant's reading of Jurek implies that Jurek’s
renowned counsel intentionally threw away the “as
applied” challenge even though his client's life literally
depended on it. To sustain defendant's position without
distinguishing or overruling Jurek, it would be necessary
to conclude that this Court affirmed Jurek’s sentence and
condemned him to death because the statute in question
might be constitutional as applied to other defendants even
though it contained a glaring constitutional defect as
applied to Jurek. The Jurek Court and counsel should not
be accused of perpetrating such a bizarre injustice without
exceptionally compelling evidence. In fact, the opinion
clearly states the exact opposite.

Jurek had filed a certiorari petition presenting two
questions. The first one was “Does the imposition and
carrying out of the sentence of death for the crime of
murder under the law of Texas violate the Eighth or
Fourteenth Amendment to the Constitution of the United
States?” The second question dealt with admissibility of
a confession. Petition for Writ of Certiorari in Jurek v.
Texas, No. 75-5394, at 2. This Court granted certiorari
limited to the first question. 423 U. S. 1082.

The question presented does not unambiguously limit
itself to a contention that the statute is unconstitutional
in all cases, and the Jurek lead opinion did not understand
the question to be so limited. Nowhere does the opinion
use the term “facial challenge.” The lead opinion de-
scribes in detail the facts of the individual case, which
would be irrelevant under defendant's interpretation.
Jurek, supra, 428 U.S., at 264-268. Most importantly,
however, the lead opinion very clearly states the question
before the Court. “We granted certiorari, 423 U. S. 1082,
to consider whether imposition of the death penalty in this
case violates the Eighth and Fourteenth Amend-
ments....” /d., at 268 (emphasis added). There is
similar language in the companion cases. See Gregg v.

Georgia, 428 U. S. 153, 162 (1976); Proffitt v. Florida, 428
U. S. 242, 247 (1976).

Jurek thus holds that the Texas death penalty statute
is constitutional as applied to Jurek, and not merely as it
might be applied to some future defendant. The very
essence of precedent is that a case must be decided the
same way as an earlier case with indistingwisaable facts,
unless that earlier case is overruled. See, e.g, Pennsylva-
nia v. Bruder, 488 U.S. 9, 11 (1988). Since defendant
does not and cannot distinguish Jurek, precedent requires
affirmance, unless Jurek is overruled.

Il. Jurek has not been overruled to date.

Gregg and its companion cases appeared to resolve two
of the most divisive legal issues of modern times: that
capital punishment is constitutional and that three of the
five sentencing systems considered were constitutional. In
light of the magnitude of these issues, one would expect
that this Court would consider them as finally resolved
and would not reopen them without a justification beyond
dispute. See Planned Parenthood v. Casey, 120 L. Ed. 2d
674, 707, 112 S. Ct. 2791, 2814 (1992). Tragically for the
law-abiding people of America, it was not to be.

A. Lockett and Its Progeny.

Along with the Texas system approved in Jurek, two
other capital sentencing systems were approved the same
day. “In Gregg v. Georgia, we today hold constitutionally
valid a capital-sentencing system that directs the jury to
consider any mitigating factors, and in Proffitt v. Florida

3. Gregg refers to a “limited grant of certiorari” in the context of discussing
the vagueness of aggravating circumstances which were not found in
Gregg’s case. 428 U.S., at 201, n. 51; id., at 161. This is entirely
different from ignoring a constitutional flaw in the case before the Court.
The analogous portion of Proffitt pays close attention to the facts of the
case. 428 U. S., at 255-256 and nn. 12-13.

we likewise hold constitutional a system that directs the
judge and advisory jury to consider certain enumerated
mitigating circumstances.” Jurek v. Texas, 428 U. S. 262,
271-272 (1976) (lead opinion) (emphasis added). Words
can hardly be more clear. The Florida system was valid
even though the sentencer was not told to consider any
circumstances other than those on the list. The Proffitt
lead opinion made clear that it understood the sentencer
was directed to consider only the “seven mitigating factors
{listed in the statute] to determine whether the death
penalty shall be imposed.” Proffitt v. Florida, 428 UV. S.
242, 251 (1976). Two mandatory sentencing systems were
struck down. Roberts v. Louisiana, 428 U. S. 325 (1976);
Woodson v. North Carolina, 428 U. S. 280 (1976).

In Lockett v. Ohio, 438 U. S. 586 (1978), the Court
was faced with an odd hybrid statute. A life sentence
could be imposed only if one of three seldom-occurring
mitigating circumstances was present: victim induced
murder, duress or strong provocation, or psychosis or
mental deficiency. /d., at 607. Thus, in the vast majority
of cases, a death sentence would be mandatory upon the
finding of an aggravating circumstance.

Because this system was mandatory in the vast majori-
ty of cases, it could have been struck down under the
principles of Roberts and Woodson. Instead, the Lockett
plurality chose to reach out and create a sweeping new
rule. It held that the sentencer “not be precluded from
considering as a mitigating factor, any aspect of a defend-
ant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a
sentence less than death.” /d., at 604 (emphasis in
original).

This rule would appear on its face to overrule Proffitt’s
holding that instruction of the jury on certain enumerated
circumstances was proper. However, Lockett muddied its
own waters by denying it overruled Proffitt, noting that the
statute in Florida did not specifically tell the sentencer to

10

ignore nonstatutory factors. /d., at 606, n. 15. The
crowning irony of Lockett is that this opaque opinion
declares, correctly, that “[t]he States now deserve the
clearest guidance that the Court can provide.” /d., at 602.
They did not receive it.

If Lockett did not overrule Proffitt, as it says it did not,
the two can be reconciled only by a narrow construction
of Lockett’s double negative “not be precluded.” These
words cannot mean that there is an affirmative require-
ment to instruct the jury to consider any and all proffered
mitigation, unless it overrules Proffitt’s validation of the
Florida instructions in that case. Perhaps Lockett only
meant that the sentencer cannot be expressly forbidden to
consider nonstatutory mitigation. The next two Lockett
cases were consistent with this narrow construction. In
Eddings v. Oklahoma, 455 U. S. 104, 109 (1982), the judge
believed he was legally precluded from considering
important mitigating evidence, and in Skipper v. South
Carolina, 476 U. S. 1, 3 (1986), the judge had excluded
the evidence altogether.

Only in Hitchcock v. Dugger, 481 U. S. 393 (1987) did
this Court make clear that it had indeed overruled Proffitt.
Hitchcock quoted disapprovingly the trial judge’s descrip-
tion of Florida sentencing law: “ ‘[T}his Court [the trial
court] is mandated to apply the facts to certain enumerated
“aggravating” and “mitigating” circumstances.’ 10 Record
195 (emphasis added).” /d., at 398. Hitchcock thus
emphasized and condemned as constitutional error the
trial judge’s use of precisely the same words which this
Court itself had used to describe the Florida system on
the day it upheld that system. See Jurek, supra, 428 U. S.,
at 272.

B. Penry v. Lynaugh.
Texas, however, still thought that it was safe. The
Texas statute never mentioned mitigating circumstances at

all; they were only implicit in the statutory questions.
Jurek had held quite clearly that this was constitutional.

In Penry v. Lynaugh, 492 U. S. 302 (1989), the majority
construed Jurek to have upheld the Texas statute “on the
basis of assurances that the special issues would be
interpreted broadly enough to enable sentencing juries to
consider all of the relevant mitigating evidence a defen-
dant might present.” /d., at 318 (emphasis added).
Unlike the Florida situation, this was at least a plausible
reading of Jurek, which had interpreted the state construc-
tion of the statute to include “whatever mitigating circum-
stances [defendant] may be able to show.” Jurek, supra,
428 U. S., at 272 (emphasis added).

In addition to the Lockett requirement that the
sentencer not be precluded from considering any evi-
dence, there is another, quite different, proposition
advanced in Penry. That is the notion that even if an item
of evidence is relevant to the statutory special issue, and
even if the sentencer can give effect to that item, the
sentencing system is nonetheless unconstitutional if the
item has additional mitigating force beyond its relevance
to the statutory issue. This would seem to be what the
majority means by “fully consider.” See Penry, 492 U. S.,
at 321. Unfortunately, these two very different proposi-
tions are so intertwined in the Penry opinion that it is
difficult to tell if the holding of the case is based on both
or just the first.

If Penry were writing on a clean slate, the most
plausible reading would be that it both reasserts the
Locket “all evidence” rule and creates a new “all possible
implications of all evidence” rule. Penry itself, however,
erects an impenetrable barrier to this interpretation. It
emphatically denies that it creates any new rules. See id.,
at 319.

On its facts, Penry fits within the Lockett rule. A
defendant whose moderate retardation did not prevent
him from deliberating and will make him a continuing

12

danger in the future has a powerful factor in mitigation
which cannot honestly justify a negative answer to either
of the special issues. See id., at 323. The result that the
Texas system may require additional instructions in a few,
rare cases can be consistent with a somewhat strained
interpretation of Jurek.

The more expansive interpretation, however, cannot be
reconciled with Jurek. The case in which the defendant
has no mitigating evidence with any relevance beyond the
special issues will be quite rare. Franklin v. Lynaugh, 487
U. S. 164, 185 (1988) (O’Connor, J., concurring in the
judgment) provides one example, but Jurek itself provides
the counter-example. Jurek’s youth, steady employment,
and contribution to his family’s welfare, 428 U. S., at 266-
267, indisputably had mitigating relevance beyond future
dangerousness, yet his sentence was affirmed. As noted
earlier, the Court granted certiorari in Jurek “to consider
whether the imposition of the death penalty in this case
violates the Eighth and Fourteenth Amendments... ,”
id., at 268 (emphasis added), and decided it did not. That
conclusion cannot be reconciled with the expansive
interpretation of Penry.

C. Parks and Graham.

In addition to Penry’s own holding that it did not
overrule Jurek, we have the further reassertion of Jurek in
Saffle v. Parks, 494 U.S. 484 (1990) and Graham v.
Collins, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993). In
Parks, the habeas petitioner’s contention was that an
instruction to the jury not to consider sympathy violates
the Eighth Amendment. 494 U. S., at 486. Rejecting the
argument that Lockett and Eddings dictated this result, the
Court said “Parks asks us to create a rule relating, not to
what mitigating evidence the jury must be permitted to
consider in making its sentencing decision, but to how it
must consider the mitigating evidence.” /d., at 490
(emphasis in original).

13

The distinction made by this passage is precisely the
distinction between the two threads in the Penry opinion
The requirement that the jury be given some vehicle to
consider Penry’s retardation is pure Lockett; it relates to
what evidence must be considered. The contention that
the jury must be instructed to consider every mitigating
aspect of the evidence would be a new rule relating “to
how it must consider the mitigating evidence.” Parks goes
on to explicitly discuss Penry and give it the narrower
interpretation. Parks notes that Penry’s claim was, in
part, that the jury was precluded from “giving any mitigat-
ing effect” to his evidence, id., at 491 (emphasis added).
and only that portion of the claim did not require cre-
ation of a new rule. “Here, by contrast, there is no
contention that the State altogether prevented Parks’ jury
from considering . . . all of the mitigating evidence
Ibid. (emphasis added).

Finally, Parks explicitly affirms that Penry did not
overrule Jurek. “The Penry Court's conclusion .. . must
be understood in terms of the Court's ruling in Jurek, and its
application in later cases.” /d., at 492 (emphasis added)
Thus, to the extent that broad language in Penry might be
construed to overrule Jurek, that language was disap-
proved, and Jurek was reaffirmed, in Parks.

Graham v. Collins, supra, follows directly from Parks
The narrow reading of Penry and the statement that Penry
did not overrule Jurek necessarily lead to the conclusion
that a habeas petitioner who does seek to overrule Jureé
seeks the creation of a new rule.

Graham claimed that his evidence was not given “ful!
mitigating effect” under the Texas special issues, 122
L. Ed. 2d, at 294, 113 S. Ct., at 917 (Souter, J., dissent.
ing), yet his evidence was not a different kind from
Jurek’s, see id., 122 L. Ed. 2d, at 275, 113 S. Ct, at 92
(majority). To the extent that Penry was based on the
notion that Jurek was limited to the “facial validity” of the
Texas statute, see Penry, supra, 492 U.S. at 315, that

14

notion is repudiated in Graham. Graham reads Jurek as
holding that the Texas system was constitutional as
applied to Jurek on the facts of his case, 122 L. Ed. 2d,
at 275, 113 S. Ct., at 902, which is indeed what the Jurek
lead opinion says, see ante, at 7.

To recap, then, the present state of the body of
precedent is this. Jurek held that the Texas system was
constitutional on its face and as applied to Jurek. The
Lockett line of cases holds that the sentencer may not be
altogether prevented from considering any item of
mitigating evidence. Penry holds that additional instruc-
tion beyond the Texas special issues may be required in
an unusual case, where the defendant has powerful
mitigating evidence that cannot be given any consideration
under the special issues.

To the extent Penry may be read to go beyond what
the jury considers into how the jury considers it, that
interpretation is repudiated by Parks. To the extent Penry
may be read as holding that Texas juries must give “full
effect” as opposed to “some effect” to mitigating evi-
dence, that interpretation is repudiated by Graham. ‘To
the extent that Penry may be based on the notion that
Jurek did not consider constitutionality of the statute as
applied to the facts of Jurek’s case, that notion is repudi-
ated by Graham. To the extent that Penry may be
interpreted to overrule Jurek, that interpretation is refuted
by Parks, Graham, and Penry itself.

Graham is now precedent that the extension of Penry
which Graham sought and which Johnson now seeks
requires an overruling of Jurek. See Graham, supra, 122
L. Ed. 2d, at 275, 113 S. Ct., at 902 (“wholesale abandon-
ment of Jurek”). The sole remaining question is whether
Jurek should, indeed, be overruled. For the reasons set
forth in Planned Parenthood v. Casey, 120 L. Ed. 2d 674,
112 S. Ct. 2791 (1992), amicus submits that Jurek should
not be overruled.

“ - mmm

15

III. For the reasons stated in Casey,
Jurek should not be overruled.

In Planned Parenthood v. Casey, 120 L. Ed. 2d 674,
704, 112 S. Ct. 2791, 2812 (1992), this Court identified
four factors governing the decision to overrule a prece-
dent in “normal stare decisis analysis” and additional
considerations which apply to “national controversies.”
Amicus submits that both types of considerations apply to
Jurek and that all applicable factors weigh against its
overruling.

A. Normal Stare Decisis Analysis.

In deciding whether to overrule a precedent, this
Court

“may ask whether the rule has proved to be intolera-
ble simply in defying practical workability [citation];
whether the rule is subject to a kind of reliance that
would lend a special hardship to the consequences of
overruling and add inequity to the cost of repudiation
[citation]; whether related principles of law have so far
developed as to have left the old rule no more than a
remnant of abandoned doctrine [citation]; or whether
facts have so changed or come to be seen so different-
ly, as to have robbed the old rule of significant appli-
cation or justification [citation].” /d., 120 L. Ed. 2d,
at 700, 112 S. Ct., at 2808-2809.

1. Workability.

There is nothing unworkable about the Jurek rule.
That case approved the practice of instructing juries in
the terms of the statute. The Penry exception to Jurek
does introduce some additional complication, since it
requires a case by case analysis of the mitigating evidence
to determine whether the evidence in a given case could
not be given any effect. This difficulty is no greater than
the difficulty of the rule Johnson proposes, which would
require case by case analysis of the type in Justice

16

O’Connor’s opinion in Franklin v. Lynaugh, 487 U. S. 164,
185-187 (1988). If practical workability were the driving
force for overruling, it would point toward overruling
Penry, not Jurek.

2. Reliance.

The reliance interest in this case is monumental.
Enforcement of the criminal law is the single most
important function of state government. See /Jllinois v.
Gates, 462 U. S. 213, 237 (1983). Capital cases are, by
their nature, the most important cases in that function.
The state must devote enormous resources, both to
investigate and litigate its own case and to provide
counsel and experts for the defendant. See Powell v.
Alabama, 287 U. S. 45 (1932); Ake v. Oklahoma, 470 U. S.
68 (1985). In 1989, when Penry was decided, there were
around 300 prisoners under sentence of death in Texas,
U. S. Bureau of Justice Statistics, Capital Punishment
1989, at 6 (1990), all of them tried and sentenced in
reliance on this Court’s holding in Jurek that the Texas
system was constitutional.

Payne v. Tennessee, 115 L. Ed. 2d 720, 737, 111 S. Ct.
2597, 2610 (1991) noted that reliance interests are
generally at a minimum in cases of procedure and
evidence. That is true for rules favoring the defendant.
Virtually no one decides to commit a crime based on
existing rules of procedure, and any such reliance would
not be legitimate.‘ Furthermore, because the prosecution
cannot appeal an acquittal, a defendant who successfully
invokes an existing rule at trial has nothing to fear from
a later reversal of that rule.

For the prosecution, the situation is quite different.
Defendants can appeal, and if an old rule is overturned,

4. A person may well rely on an existing rule of substantive law that his
conduct is legal. Such reliance is fully protected by the Due Process
Clause. See Marks v. United States, 430 U. S. 188, 191-192 (1977).

17

every pending appeal is decided under the new rule.
Griffith v. Kentucky, 479 U. S. 314, 328 (1987). Because
of their complexity, capital appeals may not become final
for many years after trial. The present case was tried
over six years ago. Pet. Brief 3. Since “virtually any
mitigating evidence is capable of being viewed as having
some bearing on the defendant’s ‘moral culpability’ apart
from its relevance to the particular concerns embodied in
the Texas special issues,” Graham v. Collins, 122
L. Ed. 2d 260, 275, 113 S. Ct. 892, 902 (1993) (emphasis
in original), accepting Johnson’s new rule would require
retrial of many years of cases. Such a massive expendi-
ture of scarce judicial resources would require an excep-
tionally compelling justification.

3. Development of the law.

The day after Penry was decided, the argument could
have been made that Jurek was nothing but an empty
shell. See Penry v. Lynaugh,-492 U.S. 302, 354-355
(1989) (Scalia, J., dissenting). If subsequent cases had
read Penry as Justice Scalia’s dissent read it, then it could
be said that Jurek was “no more than a remnant of
abandoned doctrine.” Casey, supra, 120 L. Ed. 2d, at 700,
112 S. Ct., at 2808.

However, as discussed in part II-C, ante, 12-14, Parks
and Graham have limited Penry and reaffirmed Jurek. If
any case in the line is a “remnant of abandoned doctrine,”
it is Penry, not Jurek.

4. Changed facts.

Defendant makes something of a “changed facts”
argument in his discussion of Hitchcock v. Dugger, 481
U. S. 393 (1987). He reads Hitchcock as being the
product of “experience” with the Florida system approved
in Proffitt and the result of observing that system “in
practice.” Pet. Brief 14-15 and n. 7. Defendant reads
Hitchcock as a factual discovery that some Florida

18

sentencers were not considering some mitigating circum-
stances, thereby justifying a departure from Proffitt. An
analogous argument would be that experience in Texas
indicates that some mitigating evidence, although relevant
to the second special issue, cannot be “fully considered”
under that issue.

The fallacy here is that experience has not shown
anything that was not obvious at the time of the earlier
decisions. The Court was well aware in 1976 that the
Florida system limited mitigation to “certain enumerated
mitigating circumstances.” Jurek v. Texas, 428 U. S. 262,
272 (1976). Similarly, it was well aware that the Texas
system permitted consideration of Jurek’s youth and other
mitigating evidence only to the extent that they bore on
future dangerousness. [bid.

Neither Proffitt nor Jurek was based on a factual belief
that the system under consideration permitted the sen-
tencer to consider every mitigating aspect of every mitigat-
ing fact the defendant might proffer. No rational person
could believe either system did on the record before the
Court in the actual cases. Both cases upheld the systems
involved because there was no constitutional requirement
for unlimited consideration of mitigation. The fact that
neither system allows such unlimited consideration is not
a “changed fact”; it is a fact that was known from the very
beginning.

The “factual underpinnings” of Jurek have not
changed. Consequently, “the court could not pretend to
be reexamining the prior law with any justification beyond
a present doctrinal disposition to come out differently
from the Court of [1976].” Casey, supra, 120 L. Ed. 2d,
at 706, 112 S. Ct., at 2813-2814.

B. National Controversies.

Capital punishment, like abortion, economic legisla-
tion, and segregation, is an issue of intense national
debate. Every presidential candidate declares his position

19

on the issue, and those who publicly oppose it are invari-
ably defeated. Support for the death penalty now runs
over four to one in favor. U.S. Bureau of Justice
Statistics, Sourcebook of Criminal Justice Statistics—1991,
at 211 (1992).° Special caution is needed in areas of such
magnitude.

1. Public confidence.

“There is, first, a point beyond which frequent overrul-
ing would overtax the country’s belief in the Court’s good
faith.” Casey, supra, 120 L. Ed. 2d, at 708, 112 S. Ct., at
2815. In the case of capital punishment, that point has
already been reached, not with outright, honest over-
rulings but instead with effective overrulings based on
flimsy or nonexistent distinctions.

In McGautha v. California, 402 U. S. 183 (1971), the
question of the constitutionality of unbridled sentencing
discretion was squarely before the Court. The ruling was
clear and unequivocal. “[W]e find it quite impossible to
say that committing to the untrammeled discretion of the
jury the power to pronounce life or death in capital cases
is offensive to anything in the Constitution.” J/d., at 207
(emphasis added). Yet only one year later, the precise
argument so clearly rejected in McGautha was accepted in
Furman v. Georgia, 408 U. S. 238 (1972), through the
disingenuous device of engrafting procedural require-
ments onto the previously purely substantive Cruel and
Unusual Punishment Clause. As discussed in part II-A,
ante, 8-10, this Court did a second about-face in the
Lockett line of cases, striking down the system it had |
expressly approved in Proffitt. See Lockett v. Ohio, 438
U. S. 586, 622 (1978) (White, J., dissenting in part)
(“about-face”); id., at 629 (Rehnquist, J., dissenting)
(“pillar to post”); Walton v. Arizona, 497 U. S. 639, 667-

5. This figure actually understates the support. Survey respondents are
asked about the penalty for murder generally, not the smaller subclass of
the worst murderers actually eligible for the penalty. /bid.

20

668 (1990) (Scalia, J., concurring in part). Two disapprov-

als of expressly approved systems are quite enough.

The entire edifice of “procedurally cruel and unusual
punishment” is built on the shakiest of foundations. If
the public is to accept these limitations as genuine, this
Court’s precedents must mean something. Approval of a
state’s sentencing system cannot have such a limited
meaning that the vast majority of defendants can success-
fully attack the statute as applied to their cases. Even the
“facial” challenge, which defendant claims Jurek was,
should have been successful if the system were unconstitu-
tional in the vast majority of its intended applications, cf.
United States v. Raines, 362 U. S. 17, 23 (1960), for if it
were the remaining few sentences would be “a capricious-
ly selected random handful,” see Furman, supra, 408
U. S., at 309-310 (Stewart, J., concurring).

Constitutionality of the system, at a rock bottom mini-
mum, must mean that the system approved is free of the
kind of systemic flaws that would invalidate the majority
of sentences rendered under it. If not, then instead of
being a watershed decision, Jurek was a pointless exercise
in futility. The country deserves better.

2. Promise of constancy.

Casey also recognizes this Court’s implied promise of
constancy to those who must implement its decisions.
Zigzag jurisprudence makes dedicated, conscientious
judges and lawyers look like buffoons. Prosecutors make
arguments and request instructions in reliance on this
Court’s approval of procedures. Competent defense
lawyers may decline to object or to appeal the issue,
concentrating their efforts on arguments likely to succeed.
See Smith v. Murray, 477 U. S. 527, 536 (1986). If the
defense does object, the trial court overrules the objection
in reliance on precedent. When the precedent is later
overruled or distinguished out of existence, the prosecutor
is accused of misconduct, the defense lawyer is accused of

21

incompetence, and the trial judge is accused of disregard-
ing the defendant's constitutional rights. See, e.g , ante, at
10 (Hitchcock).

Legislatures, also, rely on this Court’s precedents. In
1991, in reaction to Penry, the Texas Legislature acted to
remove the remaining guidance and give the jury what
amounts to unfettered, pre-Furman discretion in every
case of “capital murder.” See 3A Tex. Code Crim. Proc.
Ann., Art. 37.071(2)(e) (Vernon Supp. 1993). If such
additional instructions were constitutionally required, this
Court could have and should have said so in 1976. The
Legislature could then have amended the statute 15 years
earlier. When this Court affirmed Jurek’s sentence in a
case where no such instruction had been given, it implicit-
ly promised the people of Texas that no such instruction
was constitutionally required.

“The promise of constancy, once given, binds its
maker for as long as the power to stand by the deci-
sion survives and the understanding of the issue has
not changed so fundamentally as to render the com-
mitment obsolete. From the obligation of this promise
this Court cannot and should not assume any exemp-
tion when duty requires it to decide a case in confor-
mance with the Constitution. A willing breach of it
would be nothing less than a breach of faith, and no
Court that broke its faith with the people would
sensibly expect credit for principle in the decision by
which it did that.” Casey, 120 L. Ed. 2d, at 709, 112
S. Ct., at 2815-2816 (emphasis added).

Let there be no mistake. Johnson is asking this Court
for a massive breach of faith with the people of Texas.
He is asking this Court to hold that Jurek’s approval of
the Texas system only applies to rare cases, and that the
system previously upheld is now unconstitutional in the
vast majority of cases. See Pet. Brief 17. Such a mockery
of precedent is contrary to all of the reasons for stare
decisis.

22

Some Members of this Court may very well believe
that Jurek was wrongly decided as an initial matter. The
facts remain, however, that Jurek was decided in favor of
validity and that the people of Texas relied upon it.
Disagreement with the initial decision is not a sufficient
basis for overruling a precedent of this importance.
Casey, 120 L. Ed. 2d, at 706, 112 S. Ct., at 2814. If this
Court meant what it said in Casey, the essential holding
of Jurek must be upheld.

IV. Penry should remain limited to its
narrow interpretation.

As the preceding discussion indicates, many of the
reasons for not overruling Jurek v. Texas, 428 U. S. 262
(1976) would support overruling Penry v. Lynaugh, 492
U. S. 302 (1989). It has already been reduced by subse-
quent cases, and there are questions about its practical
application. Nonetheless, the contrary interests in stability
also count, and the damage for future Texas cases has
already been done. See Graham v. Collins, 122 L. Ed. 2d
260, 288, n. 9, 113 S. Ct. 892, 913, n. 9 (1993) (Thomas,
J., concurring).

Amicus therefore submits that the best way out of this
difficult situation is to declare a cease-fire in place
between Penry, as narrowly interpreted in Graham and
Parks, on the one hand, and the unmistakable holding of
Jurek itself, on the other. That is, in a case where the
defendant presented compelling mitigating evidence which
would universally be considered to substantially reduce his
culpability, but which offered the jurors no basis for
answering either of the special issues “no,” that defendant
is entitled to a new sentencing hearing. In cases such as
Jurek and Graham, where the evidence could be consid-
ered in returning a “no” answer, no additional instruction
is constitutionally required.

23

Application of this rule to the present case is straight-
forward. This case is indistinguishable from Jurek.

CONCLUSION

The judgment of the Texas Court of Criminal Appeals
should be affirmed.

April, 1993
Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae
Criminal Justice Legal Foundation

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0417%3A09. Public record. Not legal advice.