Amicus Curiae Brief — Penry v. Johnson

| i

a

oa)

4 oa

~~ °*

No. 00-6677 | |

IN THE SUPREME COURT OF THE UNITEDSTATES ~~ ~~~

\- Be

JOHNNY PAUL PENRY

Petitioner

v.

GARY L. JOHNSON

Director, Texas Department of Criminal Justice,

Institutional Division

Respondent

On Petition For Writ Of Certiorari

To The-United States Court Of Appeals

For The Fifth Circuit

BRIEF AMICUS CURIAE OF THE BAR HUMAN

RIGHTS COMMITTEE OF ENGLAND AND WALES

AND “AMICUS”

IN SUPPORT OF THE PETITIONER

M. SUE WYCOFF

Y Counsel of Record

aX Member of the Supreme Court Bar

ws The Legal Aid Society

cX 90 Church Street

QW New York, NY 10007

& Tel: (212) 577-3430

EDWARD FITZGERALD Q.C.

RUPERT SKILBECK, Barrister

Counsel for Amici Curiae

Table of Contents’ -

INTEREST OF AMICUS CURIAE .....0.............cceceeseeeeeees Vi

Ey Tl PIO ni vecncctsasaintsiensesscineinnentpineiemionss l

S The common law, the practice of other nations, and

international law are proper considcrations with which to

assess evolving standards of GeCency. ............ccccccceeeeeeeeeeeees 2

2. The execution of those with serious mental

disturbance has always been prevented by the common law..4

ee The execution of the mentally deficient equates with

the execution of juveniles, which is prohibited in all other

SR i NSN Ee OD 8

4. Detention of a person who is mentally retarded on

death row for over 20 years amounts to inhuman punishment

according to the common law and international law. ........... 10

5. The execution of juveniles or the mentally retarded

violates international treaties and customary international law.

13

6. Where the death penalty for the mentally retarded is

retained, the jury should be given sufficient instructions to

allow for full consideration of mental retardation as

IED Secistieeineniisi ci aicalainehladgnandinadidiabeeadeaniniananventie 17

7. aE Ne ota ne ED 19

' Paul, Weiss, Rifkind, Wharton & Garrison, Attorneys for the

Petitioner, did not participate in the drafting of this brief, but did copying

and binding services at the firm's expense.

Table of Authorities

Cases

Ahmad v. Wigen, 726 F. Supp. 389 (E.D.N.Y. 1989)........... 12

Boyde v. California, 494 U.S. 370 (1990) .....ccccseessesseeesees 18

Domingues v. Nevada, 961 P.2d 1279 (Nev. 1998).........00+. 15

Enmund v. Florida, 458 U.S. 782 (1982). ........:::scsccecseeseseenens 2

Ford v. Wainwright, 477 U.S. 399 (1986) .....cccccccceeeeeeeeedy 4

Furman v. Georgia, 408 U.S. 238 (1972). ..cccccccecceeseeeeeeeeeens 18

Harmelin v. Michigan, 501 U.S. 957 (1991). ...cccccceeeeeeereeeees 2

In re Medley, 134 U.S. 160 (1890). ........:.sceseseeerreesereenneeens 13

Lackey v. Texas, 514 U.S. 1045 (1995). ...... sisi 11,13

McKenzie v. Day, 57 F.3d 1461 (9th Cir, 1995). .......:ceeeeeeeees 2

Penry v. Lynaugh, 492 U.S. 302 (1989) .....ccccceeeeeeteeeneeeeens 19

Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980). ........... 12

Thompson v. Oklahoma, 487 U.S. 815 (1988)... 2,10

Trop v. Dulles, 356 U.S. 86 (19S8)..........:scsseeerreesreeeneeeees 2,3

United States v. Pink, 315 U.S. 203 (1942) ...cccccccceeesneeeeeees 13

-ll-

International Cases

Fisher v. Minister of Public Safety and Immigration (No.1)

ic snntusnouvoconenss 3

Francis v. Jamaica, Communication No. 606/1994

ES ESTES SS a 16

Hadfield’s Case, 27 St. Tr. 1281 (1800). 00.0. eccccccccceeeee, 5

M Naghten's Case, 10 Cl. & F. 200 (1843) 00. 5

Pratt and another v. Attorney-General of Jamaica, [1994] 2

ES ALE 1]

R. v. Home Secretary ex parte Bentley, (1994) QB 349. ......... 7

Soering v. United Kingdom, Judgment of 7 July 1989, Series

EE | 3,9, 12,17

Vatheeswaran vy. State of Tamil Nadu, 2 SCR 348 (1983). ..12

International Treaties and Statutes

a scsovensvevanncnenes 7

International Covenant on Civil and Political Rights .....14, 17

Children and Young Person's Act 1933 2............ccccccecccceeeeees 10

Other International Sources

Capital Punishment, and the Implementation of the

Safeguards Guaranteeing Protection of the Rights of Those

Facing the Death Penalty, UN Doc. V.00-52715(E) (2000) 15

Concluding Observations of the Human Rights Committee:

USA, UN Doc. CCPR/C/79/Add.50, para. 279 (October 3,

Report by the UN Special Rapporteur on Extrajudicial,

Summary or Arbitrary Execution, UN Doc. No.

E/CN.4/1994/7 (December 7, 1993)...........:..ccsesceeseeseceeseees 16

Resolution of ECOSOC, 1989/64, adopted 24 May 1989, UN

ee BR, eV ctrccttirininnscnsesicveninsitescuvinstesaiiiiieinintintaiieies 16

Resolution of the UN Commission on Human Rights, adopted

27 April 2000, UN Doc. No. CN.4/RES/2000/68 ................. 16

Articles and Books

Amnesty International, The Death Penalty Worldwide:

Developments in 1998, ACT 50/04/99 (May 1999) ............. 15

Amnesty International Japan, The Death Penalty: Summary

of Concerns, ASA 22/01/97 (March 1997).........ccccccceeeeeeeees 15

Blackstone, Commentaries on the Laws of England .............. 4

Catholic Commission for Justice & Peace in Zimbabwe v.

Attorney-General, 14 Hum. Rts. L.J. 323 (1993) ............0 12

Ne 4

Report of the Royal Commission on Capital Punishment,

1949-50, Command Paper 8932 .0..........ccccccseceseeeeeeeeneees 6, 7,8

Report of the Select Committee on Capital

PIII icceccrcccunnernennsianeniatieasiistinieiimetnadnatiaiiinietaial 9,10

-IV-

Radzinowicz, L. & Hood, R., The Emergence of Penal Policy,

in 5 A History of English Criminal Law and Its

Administration from 1750, at 264-65 (1986)....000000 6

Restatement (Third) of Foreign Relations Law of the United

RSENS reir ev ON eee a 2,13

Interest of Amicus Curiae

The Bar Human Rights Committee is the international

human rights arm of the Bar of England and Wales. The

Committee regularly appears in cases where there are matters

of human rights concern, and has experience of legal systems

throughout the world. The BHRC has previously appeared as

Amicus Curiae before the United Sfates Supreme Court.

“Amicus” is a United Kingdom Charity, which aims

to train lawyers in the United Kingdom to provide assistance

for United States death penalty attorneys by undertaking

internships, in the provision of briefs of Amicus Curiae,

preparing clemency petitions, undertaking research and

making applications to the Inter American Commission of

Human Rights. “Amicus” runs an educational programme

which has included senior judges, academics and practitioners

from the US and around the world. “Amicus” has also

previously appeared as Amicus Curiae before the United

States Supreme Court.

The Bar Human Rights Committee of England and

Wales and “Amicus” submit this Amicus Curiae brief in

support of the Petitioner Johnny Paul Penry in seeking a writ

of certiorari to the United States Court of Appeals for the

Fifth Circuit, reversing the judgement of that court denying

the petitioner a certificate of appealability.

-VI-

Summary of Argument

The Common Law has always prevented the

execution of those suffering from mental illness, a prohibition

which has been followed in the United States. The reasons

given for not allowing such executions are essentially

summarised in the suggestion that it is against common

humanity to allow the execution of someone who cannot fully

comprehend the nature of their crime and the finality of the

punishment. In other Common Law jurisdictions, the law

developed to prevent the execution of those suffering from

severe mental retardation, short of illness. In the United

States, many of the States have similarly introduced

legislation preventing such executions, reflecting that

development in the law.

Someone with severe mental retardation has the

functional ability of a juvenile. Every other common law

jurisdiction around the world has prohibited the execution of

juveniles. To execute someone with the intellectual

development of a 7 year old would be the same as executing

someone who was actually 7 years old. Evolving standards of

decency would suggest that such executions are no longer

permitted.

Furthermore, for someone with mental retardation to

remain on death row for over 20 years awaiting punishment

has similarly been held around the world to amount to

inhumane treatment.

International Law, both through International Treaties

and Customary International Law, has reflected these

standards which are applied in every other civilised country in

the world, and has evolved so as to prohibit the lawful

homicide of both juveniles and the mentally retarded, and

those held for years on death row. The United States is bound

by this law, and it should be applied.

If the execution of the mentally retarded is to be

permitted, then the jury must be allowed to consider all these

factors in considering sentence.

1. The common law, the practice of other

nations, and international law are proper considerations

with which to assess evolving standards of decency.

To ascertain the meaning of the constitutional bar on

cruel and inhuman punishment, it is permissible to look to

other jurisdictions. “‘There is no doubt’ that Section 10 of the

English Bill of Rights of 1689 ‘is the antecedent’ of the cruel

and unusual punishment clause of our Eighth Amendment.”

The historical evolution of common law is a factor that can be

used to assist the Court: Ford v. Wainwright, 477 U.S. 399,

406 (1986). The influence of the international custom of

Western European countries, countries with an Anglo-

American culture and human rights treaties, have all been

recognised as of significance. Thompson v. Oklahoma, 487

U.S. 815, 830 (1988). The Supreme Court has held that the

practice in other “civilized nations of the world” is a relevant

consideration, Trop v. Dulles, 356 U.S. 86 (1958), as are

standards under international law, Enmund v. Florida, 458

U.S. 782 (1982), in deciding what amounts to “cruel and

unusual punishment.” Similarly, “[T]he customary law of

human rights is part of the law of the United States to-be

applied as such by state as well as federal courts.”

Restatement (Third) of Foreign Relations Law of the United

States, § 702, comment c.

' McKenzie v. Day, 57 F.3d 1461, 1487 n.18 (9th Cir. 1995) (Norris, J.,

dissenting), citing Harmelin v. Michigan, 501 U.S. 957, 966 (1991)

(Scalia, J., concurring).

2

These concepts should therefore be used in order to

assist the Court in deciding whether executing a mentally

retarded. man with the intelligence of a 7 year old after 20

years on death row amounts to crue! and unusual punishment:

“[T]}he basic concept underlying the [Eighth

Amendment prohibition of cruel and unusual

punishment] is nothing less than the dignity of

man. While the state has power to punish, the

[clause] stands to assure that this power be

exercised within the limits of civilized

standards,” and recognizes the “evolving

standards of decency that mark the progress of

a maturing society.” Trop v. Dulles, 356 U.S.

86, 100-101 (1958).

| Similar concepts exist in the other common law

jurisdictions. In the case of Fisher v. Minister of Public Safety

and Immigration (No. 1), [1998] A.C. 673, at 686, Lord Steyn

commented that:

“The innate capacity of different areas of law

to develop varies. Thus the law of

conveyancing is singularly impervious to

change. But constitutional law governing the

unnecessary and avoidable prolongation of the

agony of a man sentenced to die by hanging is

at the other extreme. The law governing such

Cases is in transition.”

The European Court of Human Rights refers to the

European Convention of Human Rights as being a “living

instrument” when considering the prohibition on inhuman or

degrading treatment or punishment in Article 3. Soering v.

United Kingdom, Judgment of 7 July 1989, Series A, No. 161,

11 EHRR 439.

2. The execution of those with serious mental

disturbance has always been prevented by the common

law.

From earliest times the Common Law prevented the

execution of those suffering from mental disturbance. As the

lawyer Coke stated, “By intendment of Law the execution of

the offender is for example, ... but so it is not when a mad

man is executed, but should be a miserable spectacle, both

against Law, and of extream inhumanity and cruelty, and can

be no example to others.”” Similarly, Blackstone stated in the

Commentaries on the Laws of England, that “Idiots and

lunatics are not chargeable for their own acts, if committed

when under these incapacities.” Ford v. Wainwright, 477 U.S.

at 406. This interpretation of the law was accepted in that case

by the Supreme Court for the following reasons, as stated by

Justice Marshall:

“It is clear that the ancient and humane

limitation upon the State’s ability to execute its

sentences has as firm a hold upon the

jurisprudence of today as it had centuries ago

in England. The various reasons put forth in

support of the common-law restriction have no

less logical, moral and practical force than they

did when first voiced. For today, no less than

before, we may seriously question the

retributive value of executing a person who

has no comprehension of why he has been

singled out and stripped of his fundamental

right to life.... Similarly, the natural

abhorrence civilized societies feel at killing

? 3rd Institute 6 (6th ed. 1680), cited in Ford v. Wainwright, 477 U.S.

399, 407.

one who has no capacity to come to grips with

his own conscience or deity is still vivid today.

And the intuition that such an execution

simply offends humanity is evidently shared

across this nation. Faced with such widespread

evidence of a restriction upon sovereign

power, this Court is compelled to conclude that

the Eighth Amendment prohibits a State from

carrying out a sentence of death upon a

prisoner who is insane. Whether its aim be to

protect the condemned from fear and pain

without comfort of understanding, or to protect

the dignity of society itself from the barbarity

of exacting mindless vengeance, the restriction

finds enforcement in the Eighth Amendment.”

Id. at 408.

In the United Kingdom, the practice developed with

regard to those suffering from mental deficiency not actually

amounting to a disease, so as not to impose the death penalty

upon them. Judges in the eighteenth century could force the

King to give mercy by refusing to pronounce the death

sentence, merely recording it. For example, in the trial of

Hadfield for attempting to kill King George III in 1800, the

great lawyer Erskine successfully persuaded the judge, Lord

Kenyon, that suffering from delusions was sufficient to acquit

the defendant as insane, even though there was no total

deprivation of understanding. Hadfield's Case, 27 St. Tr.

1281 (1800). By the nineteenth century in the United

Kingdom, the law had developed with the introduction of the

rule in M'Naghtens’ Case, 10 Cl. & F. 200 (1843), which

held that where, “at the time of the committing of the act, the

party accused was labouring under such a defect of reason,

from disease of the mind, as not to know the nature and

quality of the act he was doing, or if he did know it, that he

did no know he was doing what was wrong.” By the late

5

nineteenth century, 21% of defendants had their death

sentences reprieved due to insanity, or “mental disturbance.”

By the early twentieth century this had become one third.”

Parliament appointed a Royal Commission on Capital

Punishment in 1949: Command Paper 8932. In considering

this issue they reported that a “mental defective...is a person

who has never possessed a normal degree of intellectual

capacity, whereas in an insane person faculties which were

originally normal have been impaired by mental disease.”

Para. 336. Such “mental deficients” included those with IQ’s

up to 70. The Commission found that “there seems to be no

doubt that in practice the M’Naghten Rules have often been

so interpreted as to include mental deficiency, at least in cases

where the other conditions laid down by the rules are

fulfilled.” Para. 362. They concluded that:

“(T]hough some mental defectives can

properly be held wholly irresponsible, the

majority should rather be regarded as having a

diminished responsibility. The diminution of

responsibility may in borderline cases be

relatively small, but it can never be excluded,

and in our opinion it would not ever be right to

carry out the sentence of death in any case

where a prisoner is certifiable as a mental

defective” (para. 385).

In 1954, Derek Bentley was executed for the murder

of a policeman. Although he was in police custody at the time

the gunman shot, it was found that his words “Let him have it,

Chris,” amounted to an encouragement of the other person to

3 See Radzinowicz, L. & Hood, R., The Emergence of Penal Policy, in

5 A History of English Criminal Law and Its Administration from 1750, at

264-65 (1986).

shoot. “Chris” was only 16 years old and

executed. Bentley only had an 10 in the low frccsacta “en

above the level of a feebleminded person” and a aks e

of 11%. R. v. Home Secretary ex parte Derek Bentley (1994)

QB 349. The Home Secretary did not commute the sentence

although the trial judge, Lord Chief Justice Goddard, had

expected him to do so. There wa

; $ public outcry w

executed. . meeruuior

Following the report of the Ro ISSi

yal Commission and the

case of Derek Bentley, Parliament introduced the Homicide

Act 1957, section 2 of which provides that:

“Where a person kills or is a party to the

killing of another, he shall not be convicted of

murder if he was suffering from such

abnormality of mind (whether arising from a

condition of arrested or retarded development

of mind or any inherent causes or induced by

disease or injury) as substantially impaired his

mental responsibility for his acts and

omissions in doing or being a party to the

killing.”

The Royal Commission had concluded that:

“There can be no doubt that, in the feeble-

minded, | judgement, moral sense and

appreciation of right and wrong are defective

and the power of self-control is substantially

less than that of a normal person: and this

defect, although it may vary in degree, is liable

to be accentuated by such factors as drink or a

transient phase of unrest. There may be cases

in which these defects of intellect and of self-

control are so great as to justify those affected

7

by them being held wholly irresponsible. On

the whole, however, medical witnesses

appeared to consider that, save in exceptional

cases, the feeble-minded should be regarded as

having diminished responsibility rather than as

being wholly irresponsible, and we accept this

view.” Para. 348.

Consequently, the common law in the United

Kingdom developed in the mid-twentieth century sO as -

prevent the execution of those suffering from menta

retardation, as it was not thought that such people had

complete responsibility for their actions.

3. The execution of the mentally deficient

equates with the execution of juveniles, which is

prohibited in all other common law countries.

In 1949, The Royal Commission also considered the

issue of comparing actual ages with mental ages, hearing

evidence that “the feeble-minded [have] a mental age of

6-10% or 11 years, or an I.Q. of 40-70,” para. 338. They

considered that:

“An adult mental defective with a mental age

of 9 years differs in important respects from a

normal child of 9, notably in sexual and

emotional development: and it is just this

difference which may lead to the commission

of crime. The adult will be in some ways more

mature and may have learned a simple trade

and be able to earn a living, but he is exposed

to much more violent and dangerous

temptations.... When the instincts and

emotions of an adult are combined with the

insight and understanding of a child, it 1s

8

inevitable that the power to control those

instincts should be defective, and should on

occasions fail altogether, with results

sometimes disastrous.” At para. 339.

That comment appears particularly apposite in the

case of Johnny Paul Penry, where it is clear that the

authorities were aware from previous incidents that he had

difficulty controlling adult emotions and instincts within the

mind of a child.

The European Court of Human Rights has also made

the correlation between mental deficiency and youth in the

death penalty in the case of Soering v. United Kingdom,

Judgment of 7 July 1989, Series A, No. 161 at para. 108, 11

E.H.R.R. 439, 509, where it stated that:

“The youth of the person concerned is a

circumstance which is liable, with others, to

put in question the compatibility with Article 3

[inhuman or degrading treatment] of measures

connected with a death sentence. It is line with

the Court’s case-law ... to treat disturbed

mental health as having the same effect for the

application of Article 3.”

Historically, the common law always prevented the

execution of those too young to fully comprehend their

actions. Executions were rarely used against those 16 or

younger in the eighteenth century, and the last of a 17 year

old in the United Kingdom was that of Joseph Morley in

1887. In this century, there have only been three executions of

people aged 18-21, in 1904, 1922 and 1925. The Atkin

Committee on Capital Punishment recommended in 1930 that

the age below which defendants could not be executed be

raised to 21. They referred to the fact that: “[T]he emotional

9

\

balance of young people under the age of 21 is unstable, and

this instability reduces their responsibility, and that the

instability of adolescents, which in some cases may even

amount to a form of mental disorder is very often a factor in

the crime.” Para. 189. Parliament introduced the Children and

Young Person’s Act in 1933 which raised the age to 18.

The United States has to some extent followed the

development of the common law in this way, by preventing

the execution of those under 16 ai the time of the offence,

Thompson v. Oklahoma, 487 U.S. 815 (1988), but it is clear

that other common law countries have moved further in

developing standards of common decency.

4, Detention of a person who is mentally

retarded on death row for over 20 years amounts to

inhuman punishment according to the common law and

international law.

Historically, executions in England followed swiftly

after sentence was passed, normally within 4 weeks. By the

mid 1950’s, the Royal Commission on Capital Punishment

reported an average delay as six weeks where there was an

appeal, and three weeks if there as not. As an example, in

1947 there was great public outcry following the discovery

that certain men convicted of capital murder in the Gold

Coast had been on death row for two years. In a debate on the

matter in the House of Commons, Mr. Winston Churchill

expressed the sentiment of the House when he said: “people

ought not to be brought up to execution, or believe that they

are to be executed, time after time whether innocent or guilty,

10

however it may be, whatever their crime. That is a wrong

thing.”

The situation was the same in the United States at the

time of the War of Independence. Delays of years were not

known, as Justice Stevens noted in his memorandum, in the

case of Lackey v. Texas, 514 U.S. 1045 (1995), where there

was a delay of 17 years. “Such a delay, if it ever occurred,

certainly would have been rare in 1789, and thus the practice

of the Framers would not justify a denial of the petitioner’s

claims.”

In the case of Pratt and another, cited above, the

Judicial Committee of the Privy Council held that holding

someone on death row for 14 years amounted to inhuman or

degrading punishment in violation of Section 17(1) of the

Constitution of Jamaica. The Privy Council stated that:

“..It is difficult to envisage any

circumstances in which in_ England a

condemned man would have been kept in

prison for years awaiting execution. But if

such a situation had been brought to the

attention of the court their Lordships do not

doubt that the judges would have stayed the

execution to enable the prerogative of mercy to

be exercised and the sentence commuted to

one of life imprisonment.” At page 19.

Other common law jurisdictions have decided that

delays measured in years are not acceptable. The Supreme

Court of Zimbabwe held that being held for between four and

six years under sentence of death constituted “inhuman or

* — Cited in Pratt and another v. Attorney General of Jamaica [1994] 2

A.C. |, at 18.

degrading punishment.” In India, two years delay has been

held unconstitutional.°

The European Court of Human Rights considered the

same issue in 1989 in the case of Soering v. United Kingdom.

Soering was due to be extradited for a murder to West

Virginia, where there was the possibility that he would face

the death penalty, with an average wait of 7 to 8 years on

death row. Soering argued that such treatment was in

violation of the prohibition of cruel and degrading

punishment in Article 3 of the European Convention of

Human Rights. The Court specifically considered youth and

mental health issues as a part of the death row phenomenon. It

was argued that there were provisions to prevent the arbitrary

application of the death penalty. The Court stated that these

provisions “do not, however, remove the relevance of age and

mental condition in relation to the acceptability, under Article

3, of the “death row phenomenon” for a given individual once

condemned to death.” (para. 109) One Federal court has

referred to the case of Soering as being “an important

precedent.... It reflects a persuasive though non-binding

international standard.” Ahmad v. Wigen, 726 F. Supp. 389,

414 (E.D.N.Y. 1989).

Clearly, those who are mentally retarded are likely to

suffer more during detention than other prisoners. “Mentally

retarded persons meet with unremitting hardships in prison.”

Ruiz v. Estelle, 503 F. Supp. 1265, 1344 (S.D. Tex. 1980).

Consequently, incarceration on death row in such

circumstances makes the case of Johnny Paul Penry different

from many other examples of the death row phenomenon.

> Catholic Commission for Justice & Peace in Zimbabwe v. Attorney-

General, 14 Hum. Rts. LJ. 323 (1993).

* — Vatheeswaran v. State of Tamil Nadu, 2 SCR 348 (1983).

12

Over a century ago the US Supreme Court recognised

that, “when a prisoner sentenced by a court to death is

confined in the penitentiary awaiting the execution of the

sentence, one of the most horrible feelings to which he can be

subjected during that time is the uncertainty during the whole

of it.” Jn re Medley, 134 U.S. 160, 172 (1890). “If the Court

accurately described the effect of uncertainty in Medley,

which involved a period of four weeks...that description

should apply with event greater force in the case of delays

that last for many years.” Lackey v. Texas, 514 U.S. 1045

(1995). In that case, the memorandum of Justice Stevens

suggested that with such a novel issue, the lower courts

should look into this point in detail. “Petitioner's claim, with

its legal complexity and its potential for far-reaching

consequences, seems an ideal example of one which would

benefit from such further study.” /d. at 1045.

5. The execution of juveniles or the mentally

retarded violates international treaties and customary

international law.

International agreements to which the United States is

a party are laws of the United States and supreme over the

law of the several states. Restatement (Third) of Foreign

Relations Law of the United States § 111 (1) (1987). The

United States Supreme Court has for a long time held that

“{S)}tate law must yield when it is inconsistent with or impairs

the policy or provision of a treaty or of an international

compact or agreement.” United States v. Pink, 315 U.S. 203,

230-31 (1942).

Through treaty ratification, nations promote the

growth of customary international norms. “International

agreements create law for the states parties thereto and may

lead to the creation of customary international law when such

13

agreements are intended for adherence by states generally and

are in fact widely accepted.” Restatement, supra, § 102(3).

The prohibition of executions of both juveniles and

the mentally retarded has now achieved the status of a

Customary Norm of International Law. Under United States

law, “{T]he customary law of human rights is part of the law

of the United States to be applied as such by state as well as

federal courts.” Restatement, supra, § 111 (1) (1987). For a

particular norm to achieve the status of customary

international law, two conditions must be met. Firstly, the

norm must be reflected in a general practice by nations, and

secondly, there must be opinio juris.

With regard to treaties, the International Covenant on

Civil and Political Rights (ICCPR) was ratified by the USA in

1992. Under Article 6(5) of the ICCPR, those under 18 at the

time of an offence may not be sentenced to death. The United

States Senate has sought to apply a reservation allowing the

execution of juveniles. Article 4(2) of the ICCPR was also

ratified, which states that “no derogation from articles 6, 7, ...

may be made under this provision.” Eleven European

signatories of the ICCPR have declared the reservation

illegal, and the United Nations Human Rights Committee,

which has a United States representative, has stated that the

reservation is invalid’. Such a reservation made by the Senate

violates the doctrine of separation of powers and the Treaty

Clause which limits the power to make treaties to the

president, and violates the “object and purpose” of the ICCPR

itself. Consequently, the reservation is invalid.

Concluding Observations of the Human Rights Committee: USA, UN

Doc. CCPR/C/79/Add.50, para. 279 (October 3, 1995).

14

The general practice of nations can be adjudged by the

fact that the United States is amongst only a handful of

nations which permits the execution of juveniles, as observed

by Springer, CJ, dissenting, in Domingues v. Nevada: “Under

Nevada’s interpretation of the treaty, the United States will be

joining hands with such countries as Iran, Iraq, Bangladesh,

Nigeria and Pakistan in approving death sentences for

children.” 961 P.2d at 1280-81. According to recent figures,

in 1998 only one country actually executed a defendant who

was a juvenile at the time of the offence, that country being

the United States. Amnesty International, The Death Penalty

Worldwide: Developments in 1998, ACT 50/04/99 (May

1999). In two other countries where sentences of death were

imposed, Singapore and the Democratic Republic of Congo,

the sentences were commuted to life imprisonment.

Similarly, no democratic country has been reported as

executing a person suffering from mental retardation, save for

one unconfirmed report in Japan suggesting “mental illness.”

Amnesty International Japan, The Death Penalty: Summary

of Concerns, ASA 22/01/97 (March 1997). The recent report

by the Secretary General of the United Nations, Capital

Punishment, and the Implementation of the Safeguards

Guaranteeing Protection of the Rights of those Facing the

Death Penalty, UN Doc. V.00-52715(E) (2000), at paragraph

96, indicates that of the States which replied to their

enquiries, only Togo stated that their law would permit the

execution of both the mentally retarded and the mentally ill.

The 41 members of the Council of Europe, which includes

Russia and the former communist states of eastern Europe,

a de facto abolished the death penalty since 11 March

1997.

Opinio Juris has made it clear that the execution of the

mentally retarded is not accepted in international law. The

United Nations Economic and Social Council made a

15

resolution in 1989 recommending that states eliminate the

death penalty “for persons suffering from mental retardation

or extremely limited mental competence, whether at the stage

of sentence or execution.” Similarly, in a recent report, the

United Nations Human Rights Committee stated it “regrets

that, in some cases, there appears to have been a lack of

protection from the death penalty of those mentally

retarded.”” The United Nations Commission on Human

Rights adopted a resolution on 27 April 2000, sponsored by

the European Union, calling on retentionist countries “not to

impose the death penalty on a person suffering from any form

of mental disorder or to execute any such person.”'” The UN

Special Rapporteur on Extrajudicial, Summary or Arbitrary

Executions has stated that international law prohibits the

capital punishment of mentally retarded or insane persons,

pregnant women and mothers of young children."

International tribunals have found that such executions

violate international law. In the case of Francis v. Jamaica,

Communication No. 606/1994 U.N.H.R.C., on 12 August

1994, the United Nations Human Rights Committee held that

the execution of a man suffering from mental anguish, but

examined and found not to be insane, together with a delay in

death row of over 12 years, amounted in that case to cruel,

inhuman or degrading treatment in violation of Article 7 of

* — Resolution of ECOSOC, 1989/64, adopted 24 May 1989, UN Doc.

No. E/1989/INF/7.

9

Note 8, supra, para. 281.

'© Resolution of the UN Commission on Human Rights, adopted 27 April

2000, UN Doc. No. CN.4/RES/2000/65.

ie

Report by the UN Special Rapporteur on Extrajudicial, Summary or

Arbitrary Execution, UN Doc. No. E/CN.4/1994/7 (December 7, 1993).

16

the ICCPR. Similarly, the European Court of Human Rights

in the case of Soering v United Kingdom, cited above, held

that:

“Although it is not for this Court to prejudge

issues of criminal responsibility and

appropriate sentence, the applicant’s youth at

the time of the offence and his then mental

state, on the psychiatric evidence as it stands,

are therefore to be taken into consideration as

contributory factors tending, in his case, to

bring the treatment on death row within the

terms of Article 3” at para. 109.

Consequently, it is obvious that this Court would have

to allow the law of the United States to act in opposition to

the rest of the world if Johnny Paul Penry is executed.

6. Where the death penalty for the mentally

retarded is retained, the jury should be given sufficient

instructions to allow for full consideration of mental

retardation as mitigation.

The trial judge’s instructions in the instant case

created an insoluble dilemma for the jurors. He instructed

them that they were to consider mitigating evidence only

when answering the special issues questions.

If you find that there are any mitigating

circumstances in this case, you must decide

how much weight they deserve, if any, and

therefore, give effect and consideration to

them in assessing the defendant’s personal

culpability ai the time you answer the special

issue. If you determine, when giving effect to

the mitigating evidence, if any, that a life

17

sentence, as reflected by a negative finding to

the issue under consideration, rather than a

death sentence, is an anpropriate response to

the personal culpability of the defendant, a

negative finding should be given to one of the —

three special questions.

This instruction was given despite the fact that much

mitigation evidence in Penry’s case, e.g. the evidence

concerning his brutal treatment as a child, had no relevance to

any of the three special issue questions. Thus, in order to

consider the mitigation evidence presented, which the jury

was told it must do, it had to consider such evidence in a

context in which it was completely irrelevant.

In Boyde v. California, 494 U.S. 370 (1990), this court

decided that if there was a real possibility that a juror might

interpret a charge in a way that prevented them giving proper

consideration or effect to mitigating evidence, the charge

would not pass constitutional muster. In the instant case a

reasonable and conscientious juror might well have concluded

from the judge’s charge and the verdict form that

constitutionally relevant mitigating evidence had no relevance

to the special issues presented for answer. In such

circumstances, such a juror could not both hold to the oath he

or she had taken and yet give effect to mitigating evidence if

they wished to do. The judge effectively invited the jurors to

consider disregarding part of their oath if they found it

expedient to do so.

Carrollean logic of such a kind is manifestly unjust

and likely to give rise to those ‘freakish’ or ‘arbitrary’

impositions of the death penalty that were condemned in

Furman v. Georgia, 408 U.S. 238 (1972). In the case of a

mentally retarded defendant like the petitioner,

constitutionally relevant evidence as to his cognitive abilities

18

goes to the very heart of his culpability. A jury charge that

obfuscates the relevance or consideration of such mitigating

evidence is a denial of a defendant’s entitlement to due

process guaranteed by the Fifth and Fourteenth Amendments.

7. Conclusion

In 1989, the Supreme Court stated that “a national

consensus against execution of the mentally retarded may

someday emerge, reflecting the ‘evolving standards of

decency that mark the progress of a maturing society.’” Penry

v. Lynaugh, 492 U.S. 302, 340 (1989). Clearly, there is a

strong argument for stating that such a consensus has now

emerged, not only amongst the individual states, but amongst

the community of democratic nations. This issue, dealing with

the fundamental humanity of the nation, should be properly

19

argued before the Courts. Consequently, counsel for Amici

Curiae urge the Court to grant the relief sought by the

Petitioner.

Respectfully Submitted,

- >

Counsel of Record \ :

M. SUE WYCOFF

Member of the Supreme

Court Bar

The Legal Aid Society

90 Church Street

New York, NY 10007

Tel: (212) 577-3430

ae pon x i wy \

EDWARD FITZGERALD

Q.C.

11 Doughty Street

London WCI

Tel: 00 44 20 7404 1313

RUPERT SKILBECK,

Barrister

36 Bedford Row

London WCI1R 4JH

Tel: 00 44 20 7421 8000 :

Counsel for Amici Curiae,

the Bar Human Rights

Committee of England and

Wales, and “Amicus.”

20