485 U.S. 995 (1988)

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U.S. Supreme Court

LOWENFIELD v. BUTLER , 485 U.S. 995 (1988)

485 U.S. 995

Robert Hilton BUTLER, Warden.
No. A-792 (87-6780)

Supreme Court of the United States

April 13, 1988

Case below, 843 F.2d 183.

The application for stay of execution of the sentence of death presented to Justice WHITE and by him referred to the Court is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Petitioner Leslie Lowenfield has been sentenced to death. The law of the State that is about to execute him entitles him to "rais[e] at any time" the issue of his "mental incapacity to proceed" with the execution. La.Code Crim.Proc.Ann., Art. 642 (West 1981). See State v. Perry, 502 So. 2d 543, 564 (La.1986). If there is a "reasonable ground to doubt" petitioner's sanity, the court "shall order a mental examination," La.Code Crim.Proc.Ann., Art. 643 (West 1981), and may permit "no further steps" in his punishment until he "is found to have the mental capacity to proceed," Art. 642. In any event, state law affords petitioner the right to pre- execution review by a sanity commission if he can "show by a preponderance of evidence that he lacks the present capacity to undergo execution." Perry, supra, at 564.

Petitioner moved for review by a sanity commission, presenting evidence that he is currently insane. The evidence consisted of a sworn affidavit by Dr. Marc L. Zimmerman, a duly licensed clinical psychologist who interviewed and tested petitioner for five hours on March 26, 1988, and concluded that "it is highly probable that Mr. Lowenfield is suffering from paranoid schizophrenia. . . . A study has found that 85% of persons who obtain the same profile as Mr. Lowenfield . . . are diagnosed as paranoid schizophrenics." App. to Pet. for Cert. 2 (citation omitted). Dr. Zimmerman continued: "As a paranoid schizophrenic, Mr. Lowenfield's capacity to understand the death penalty would be impaired. Indeed, my

Page 485 U.S. 995 , 996

clinical interview with Mr. Lowenfield indicated that he is currently unable to understand the death penalty." Id., at 3 (emphasis added). The State presented no evidence either to refute Dr. Zimmerman's conclusions or to question his credentials. In the face of that unrefuted evidence, the Louisiana trial court, and then the Louisiana Supreme Court, denied the motion without explanation.

Petitioner thereafter filed an application for habeas relief with the District Court. The District Court denied on the basis of an "extended conversation" with Dr. Zimmerman. Civ. Action No. 88-1549, p. 3 (ED La., Apr. 12, 1988) 1988 WL 34935. From that conversation, which the District Court conducted without any notice to petitioner's counsel and apparently before petitioner's application was filed, the District Court concluded that, contrary to Dr. Zimmerman's affidavit, "petitioner has the capacity to understand the realities of the pending execution. Petitioner, though [ a] paranoid schizophrenic, is apparently able to understand that the execution is going forward in accordance with law." Ibid. A divided panel of the Court of Appeals affirmed in an opinion that reached this chambers a mere 15 minutes before the scheduled execution. 843 F.2d 183 ( CA5 1988).

Every court that has considered petitioner's insanity claim has made a mockery of this Court's precedent and of the most fundamental principles of ordered justice. In Ford v. Wainwright, 477 U.S. 399, 409, 2602 (1986), we held that "the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane." In the course of the opinion, we characterized any such execution as " 'savage and inhuman' " id., at 406 (citation omitted): " 'a miserable spectacle, both against Law, and of extreme inhumanity and cruelty,' " id., at 407 (citation omitted); " 'cruel and inhumane,' " id., at 408, n. 1, n. 1 (citation omitted); and "abhorren[t]," id., at 409.

A majority of this Court did not agree on the precise procedures that the Constitution requires when the question is raised of a prisoner's sanity for execution. A majority did, however, hold that due process demands a hearing at least once the prisoner has made some "threshold showing" that he has become insane since his trial. Id., at 417, 106 S.Ct ., at 2605 (opinion of MARSHALL, J., joined by BRENNAN, BLACKMUN, and STEVENS, JJ.); id., at 426 (Powell, J., concurring in part and concurring in judgment). Justice Powell, pro- [485 U.S. 995 , 997]

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