JOHNSON v. THIGPEN
481 U.S. 1061

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U.S. Supreme Court

JOHNSON v. THIGPEN , 481 U.S. 1061 (1987)

481 U.S. 1061

Edward Earl JOHNSON v. Don CABANA, Acting Commissioner, Mississippi Department of Corrections
No. 86-6919 (A-842)

Supreme Court of the United States

May 19, 1987

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The application for stay of execution of the sentence of death presented to JUSTICE WHITE and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Adhering to my view 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, 2973 (1976), I would grant the application for stay of execution and the petition for certiorari, and would vacate the death sentence in this case.

Even if I did not take this view, I would still grant the application for a stay and the petition for certiorari. Petitioner raises a substantial claim that, since trial, he has become incompetent and therefore may not be executed. In Ford v. Wainwright, 477 U.S. ___ (1986), the Court held that the Eighth Amendment bars execution of convicted prisoners found to be incompetent. The Court rested its holding on the lack of "retributive value [in] executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life." Id., 106 S.Ct. at 2602. The Court also relied on "the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity." Ibid. In a concurring opinion, Justice POWELL stated:

    "If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the pun-

    Page 481 U.S. 1061 , 1062

    ishment they are about to suffer and why they are to suffer it." Id., 106 S.Ct. at 2608-09.

Petitioner's claim is founded on an affidavit by a licensed clinical psychologist stating his findings as to petitioner's sanity. Following a five-hour evaluation of petitioner, and after a review of petitioner's medical records and of statements by others acquainted with petitioner, the affiant concluded:

    "Edward Johnson is unable to relate any punishment through execution to his own conduct, or the conduct alleged against him. He does not understand why he is being singled out, and does not have the proper mental framework to come to grips with his own conscience. It is quite clear that this is the product of mental disease or defect." App. to Pet. for Cert. 2.

The plausibility of this conclusion is buttressed by the affidavit of a psychiatrist, who evaluated petitioner prior to his trial. That evaluation "revealed substantial mental defects," and the affiant diagnosed that petitioner had "suffered from brain dysfunction" from birth, and "suffered from [an] organic brain syndrome" that intermittently caused personality and behavioral changes. He concluded "that [petitioner's] mental problems were severe." Id., at 3-4.

Petitioner first presented this evidence to the Mississippi Supreme Court pursuant to the State's post-conviction procedures set forth in Miss. Stat.Ann. 99-19-57(2)(b). In response, the State submitted affidavits that disputed petitioner's claims. The Mississippi Supreme Court did not hold a hearing in this matter, nor did it even consider the affidavits presented by the State. Instead, the court simply concluded, without explanation, that it did "not find it necessary to consider [the State's affidavits] because Petitioner fails to make out a prima facie case of present insanity by his affidavits." Johnson v. State, --- So.2d ___, ___ n. 1 (No. DP-16, May 18, 1987) (slip op. 1, n. 1). The court summarily held that petitioner's evidence was insufficient standing alone to raise "a reasonable probability" that petitioner is presently "insane." Id., at ___.

The Constitution does not require an indigent prisoner to produce more than what petitioner has in order to meet the burden of coming forward. There is nothing amiss, at least facially, in petitioner's affidavits. The affidavits were prepared by licensed professionals, not by family members or friends. Compare Evans v. [481 U.S. 1061 , 1063]


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