Before I get into any more of the recent death penalty cases, let me clear up the Penry decision that seems to be central in all three of these cases. The state of Texas had created a system of questions or “special issues” (the court uses the latter term) for juries to answer that were designed to assist them in determining whether the death penalty should be issued to people convicted of crimes. There were usually two or three questions which ranged from “Would the convicted individual be harmful to society if released?” to “Was this person fully aware of the repercussions of their actions?” The Court upheld this process facially in Penry but stipulated on due process grounds that this process must have an option for juries to take mitigating circumstances into account and “express their reasoned moral response.”

The Court held this week in Abdul-Kabir v. Quarterman and Brewer v. Quarterman that the instructions given to the jury in Abdul-Kabir’s trial “prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence.” Interestingly, the Court held that if evidence could “diminish his blameworthiness … even as it indicated a probability that he would be dangerous” the evidence is not required to be considered by a jury. The Court ruled that the Fifth Circuit misinterpreted the Supreme Court’s ruling on these issues.

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