U.S. Supreme Court
SMITH v. FRANCIS , 474 U.S. 925 (1985)
474 U.S. 925
William Alvin SMITH
Robert O. FRANCIS, Warden.
Supreme Court of the United States
October 21, 1985
Rehearing Denied Dec. 9, 1985.
See 474 U.S. 1026
On petition for writ of certiorari to the Supreme Court of Georgia.
The petition for a writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my views that the death penalty is in all circumstances cruel
and unusual punishment prohibited by the Eighth and Fourteenth Amendments,
Gregg v. Georgia, 428 U.S. 153, 227
2950, 49 L.
Ed.2d 859 (1976), I would grant certiorari and vacate the death sentence
this case. [474 U.S. 925 , 926]
Justice MARSHALL, dissenting.
I would vacate the judgment of the Georgia Supreme Court insofar as it
undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428
U.S. 153, 231 </cgi-bin/getcase.pl?navby=case&court=us&vol=428&invol=153>,
2973 (1976) ( MARSHALL, J., dissenting). The petitioner has presented an
important question concerning the Eighth Amendment's ban on cruel and
unusual punishment as applied to the execution of a mentally retarded
The petitioner is mentally retarded, with an IQ of 65 and mental abilities
roughly equivalent to those of a 10-year-old child. He was tried for the
murder of one Dan Turner, a friend of the petitioner and his family. There
were no eyewitnesses to the crime. The petitioner had gone into Turner's
grocery store to buy some cigarettes. The petitioner testified at trial
he grabbed Turner when the latter opened the cash register. Turner reacted
by picking up a hammer, and the petitioner then stabbed him and hit him
the hammer after it fell from the victim's hand. The petitioner took money
from the cash register and Turner's wallet and fled.
The petitioner turned himself in to the police and gave a lengthy
in which he admitted stabbing Turner. When asked about the reasons for his
actions, the petitioner stated that he had wanted to get money. At trial,
however, the petitioner stated that he had not entered the store intending
to rob Turner, and did not know why he had grabbed Turner as the latter
getting the petitioner's cigarettes.
A psychiatrist who examined the petitioner stated that the petitioner
considerable remorse in discussing the murder. The petitioner testified at
trial that he "didn't mean to kill Mr. Dan," but had gotten
" carried away"
after he saw the victim wielding the hammer in what the petitioner
interpreted as a threatening manner. There was evidence that the
was under considerable stress in the days preceding the murder. The
petitioner's counsel argued that the petitioner was insane or, at minimum,
lacked the requisite mental intent because of his retardation.
the jury found the petitioner guilty of malice murder and armed robbery
sentenced him to death. [474 U.S. 925 , 927] II
In Furman v. Georgia, 408 U.S. 238
2789-2792 (1972) (MARSHALL, J., concurring), I concluded that the death
penalty was "morally reprehensible" to contemporary society
based, in part,
on its discriminatory imposition. Statistically, it was "evident that
burden of capital punishment falls upon the poor, the ignorant, and the
underprivileged members of society." Id., at 365-366-2791 (footnote
omitted). The petitioner suffers the unfortunate distinction of meeting
of these criteria. His case, like so many others coming before this Court,
convinces me of the continuing validity of my observations in Furman.
I need not recount here our country's shameful history with respect to the
mentally retarded. See Cleburne v. Cleburne Living Center, 473 U.S. 432,
(MARSHALL, J., concurring in judgment in part and dissenting in part). I
believe, however, that the courts bear a special responsibility when faced
with the possible execution of a member of a group that has been subject
so long to irrational social stigma. 1 This is particularly true in the
instant case, because the petitioner's handicap necessarily diminishes his
culpability. A mentally retarded person who is susceptible to confusion
impulsive reaction when put in a stressful situation 2 is the very
of the cold-blooded, calculating killers that populate this Court's
validating the death penalty. See, e.g., Gregg v. Georgia, supra, 428
(opinion of STEWART, POWELL, and STEVENS, JJ.). [474 U.S. 925 , 928] This
Court has demanded that a capital sentencing scheme provide, at a minimum,
"meaningful basis for distinguishing the few cases in which it is
from the many cases in which it is not," Furman, supra, 408 U.S., at
concurring); see Godfrey v. Georgia, 446 U.S. 420
1764-1765 ( 1980) (plurality opinion). In this case, the mechanical
application of the Georgia sentencing scheme undermined one purpose that
Court has determined to underlie such procedures-to reserve the penalty of
death for the most culpable killers, thus satisfying society's "
for retribution,' " Gregg v. Georgia, 428 U.S., at 183
Furman, supra, 408 U.S., at 308
concurring)).3 The execution of a [474 U.S. 925 , 929] mentally retarded
person serves this retributive function extremely poorly, because the
of "personal responsibility and moral guilt," Enmund v. Florida,
782, 801 </cgi-bin/getcase.pl?navby=case&court=us&vol=458&invol=782>,
(1982), is so much lower than in the case of a fully competent person who
commits the same crime. 4 As applied to the petitioner, the death penalty
" nothing more than the purposeless and needless imposition of pain
suffering," Coker v. Georgia, 433 U.S. 584, 592
2866, 53 L.
Ed.2d 982 (1977) (plurality opinion), and therefore unconstitutional.
[ Footnote 1 ] It cannot be denied that American communities have
traditionally shown a strong desire to be rid of the mentally retarded in
any way possible. See Cleburne, 473 U.S., at 462
subjected during end of 19th and beginning of 20th centuries to a
state-mandated segregation and degradation . . . that in its virulence and
bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow
See also Buck v. Bell, 274 U.S. 200, 207
</cgi-bin/getcase.pl?court=us&vol=274&invol=200>, 585 (1927)
compulsory sterilization as alternative to "waiting to execute
offspring for crime"); Halderman v. Pennhurst State School &
F.Supp. 1295, 1299-1300 (ED Pa.1977) (noting history of
of mentally retarded), aff'd in part and rev'd in part, 612 F.2d 84 (CA3
1979), rev'd, 451 U.S. 1
[ Footnote 2 ] A psychiatrist who examined the petitioner testified that
exhibits these characteristics. See Affidavit of Dr. Fisher, App. H to
for Cert. The characteristics are typically found in the mentally
See M. Sternlicht & M. Deutsch, Personality Development and Social
in the Mentally Retarded 81-82 (1972).
[ Footnote 3 ] Courts have often shown reluctance to impute to a retarded
defendant the necessary culpability to uphold a sentence of death. See, e.
g., State v. Hall, 176 Neb. 295, 309-310, 125 N.W.2d 918, 926-927 (1964)
exercising its statutory prerogative to " 'reduce the sentence
rendered . .
. when in its opinion the sentence is excessive,' " court concluded
where the defendant, had an IQ of 64, "reduction of the death penalty
of life imprisonment is warranted"); State v. Behler, 65 Idaho 464,
146 P.2d 338, 343 (1944) ("Undoubtedly, one possessing a normal mind
be held to a full, strict accountability for his conduct, but, should a
person with a pronounced subnormal mind be held to the same high degree of
accountability?"); Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241
(vacating death sentence where sentencer had failed to consider mitigating
factors, including defendant's youth and subnormal intelligence ). See
Thompson v. State, 456 So.2d 444, 448 (Fla.1984) (trial judge erred in
overriding jury recommendation of life imprisonment on the grounds that no
mitigating circumstances existed, where "appellant's mental
could have been considered by the jury as a basis for recommending life
imprisonment"). Legislatures have also acknowledged that the retarded
less deserving of the death penalty than other offenders. Many state
statutes make mental disease or defect at the time of the criminal act a
mitigating factor. See Ark.Stat.Ann. 41-1304(3) ( 1977); Cal.Penal Code
190.3(h) (West Supp.1985); Conn.Gen.Stat. 53a-46a(f)(2) (1985); Ind.Code
35-50-2-9(c)(6) (1985); Ky.Rev.Stat. 532.025(2)(b)(7) (1985); La.Code
Crim.Proc.Ann., Art. 905.5(e) (West 1984 ); Md.Ann.Code, Art. 27,
(Supp.1985); Neb.Rev.Stat. 29- 2523(2)(g) (1979); N.J.Stat.Ann.
2C:11-3(c)(5)(d) (West 1982); Ohio Rev.Code Ann. 2929.04(B)(3) (1982);
Tenn.Code Ann. 39-2-203(j)(8) ( 1982); Wash.Rev.Code 10.95.070(6) (1983).
See also Ala.Code 13A-5-51( 6) (1982); Ariz.Rev.Stat.Ann. 13-703(G)(1)
(Supp.1984-1985); Fla.Stat . 921.141(6)(f) (1983); Miss.Code Ann.
99-19-101(6)(f) (Supp.1985); Mo.Rev.Stat. 565.032(3)(6) (Supp.1984);
Mont.Code Ann. 46-18-304(4) ( 1983); N.H.Rev.Stat.Ann. 630:5(II)(b)(4)
(1983); N.M.Stat.Ann. 31- 20A-6(C) (1981); N.C.Gen.Stat. 15A-2000(f)(6)
(1983); 42 Pa.Cons.Stat . 9711(e)(3) (1982); S.C.Code 16-3-20(C)(b)(6)
(1985); Va.Code 19. 2-264.4(B)(iv) (1983); Wyo.Stat. 6-2-102(j)(vi)
[ Footnote 4 ] Recognizing the greatly lower culpability of the mentally
defective is certainly not novel; Blackstone notes that "by the law .
ever since the time of Edward the Third, the capacity of doing ill, or
contracting guilt, is not so much measured by years and days, as by the
strength of the delinquent's understanding and judgment." 4 W.