Response by Professor Christy H. DeSanctis
Geo. Wash. L. Rev. Docket (Oct. Term 2014)
Brumfield v. Cain, 575 U.S. ___ (2015).
Docket No. 13-1433; March 30, 2015; June 18, 2015
Slip Opinion | New York Times | SCOTUSblog
Nearing the twentieth anniversary of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Court’s decision in Brumfield v. Cain represents only one of a handful of times that the Petitioner in a § 2254(d)(2) merits case has been successful; indeed, few such cases have reached the merits phase at all.1 Compare that to the countless (d)(1) cases to have reached the Court, still just a tiny fraction of the estimated 16,000-18,000 AEDPA cases filed by state prisoners in federal court each year.2 Beneath its surface, the decision is as nuanced as the case is procedurally complex. Understanding these procedural intricacies, however, is essential to appreciating just how fine a needle the majority decision threads, as well as the perhaps even more dramatic agenda of the principal dissent.
Brumfield was tried, convicted, and sentenced to death for first-degree murder in Louisiana state court in 1993, before the Supreme Court, in Atkins v. Virginia, prohibited the execution of the intellectually disabled as a violation of the Eighth Amendment.3 Indeed, at the time of Brumfield’s trial, precedent specifically permitted it.4 Brumfield thus put on no evidence of intellectual disability (ID) at that time. Nor did he have an incentive to develop a record for that purpose, a decision entirely consistent with the Atkins Court’s observation—later echoed by the Louisiana Supreme Court in State v. Williams5—that penalty phase evidence of ID can be a “two edged sword” given the possibility of its making a finding of future dangerousness more likely.6 Atkins held that it is unconstitutional to execute individuals with ID. But it made clear that not every defendant will be entitled to a hearing to determine ID. The Court thus left to the States the role of establishing the substantive standards defining ID and the appropriate procedural mechanisms by which state courts would make such a determination.
After Atkins, Brumfield amended his pending state postconviction petition, seeking an evidentiary hearing on the issue of his ID and for funding to develop that claim. Without holding a hearing or granting funds to investigate, the state trial court dismissed Brumfield’s petition. That dismissal ultimately led to the two bases for federal habeas relief that Brumfield has since maintained: (1) that denial of an Atkins hearing based on evidence from a pre-Atkins sentencing record was an unreasonable determination of the facts; and (2) that denial of his request for funding violated clearly established federal law. At this point, introducing the specific language of AEDPA, 28 U.S.C. § 2254(d)(1) and (d)(2) is useful. AEDPA limits the power of a federal court to grant an application for writ of habeas corpus on behalf of a state prisoner; it can do so only if the claim resulted in a decision “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2); or “that was contrary to, or involved an unreasonable application of Federal law,” § 2254(d)(1). The majority decision focused on the first ground, or the lack of a postconviction opportunity to prove ID, under (d)(2). It declined to reach the second issue under (d)(1).7
A quick mention of one more complexity is necessary to establish a sufficient structural framework to appreciate the opinion and its longer-term ramifications. Brumfield prevailed on his habeas petition in federal district court, where the court ultimately held an Atkins hearing and, in fact, found Brumfield to be intellectually disabled. The Fifth Circuit subsequently reversed on the ground that the district court never should have held the hearing in the first place. The question for the Supreme Court, then, was not whether Brumfield is entitled to a hearing to determine ID. He already had that hearing in federal court, a point that appears lost on most commentators to date. The question, instead, was—regardless of the federal habeas court’s actual finding of ID—whether the state court had acted reasonably in denying Brumfield even a hearing to determine the answer to that very question. Kafka, anyone?
In Louisiana, the state-specific application of Atkins previously had been established in Williams, which identified three elements of a diagnosis of ID: (1) subaverage intelligence, measured by standardized IQ tests; (2) significant impairment in adaptive skills; and (3) manifestations of the disorder prior to adulthood.8 Williams further explained that a defendant demonstrates the need for an Atkins hearing when he proffers “sufficient evidence to raise a ‘reasonable ground’ to believe” that he is intellectually disabled.9
A five-Justice majority (Justice Sotomayor writing, and joined by Justices Kennedy, Ginsburg, Breyer, and Kagan) vacated the Fifth Circuit’s decision. For the majority, it seemed fairly straightforward that the state court’s denial of Brumfield’s request for an Atkins hearing based on his pre-Atkins record was an unreasonable determination of the facts under (d)(2). Why? Notwithstanding that he was denied funding to develop a proper record of his ID, Brumfield proffered to the state court that he scored only a 75 on a standard IQ test, which is squarely within the range of ID; that he suffered from an abnormally low birth weight, suffered slowness in motor development, was diagnosed early on with learning disabilities, was placed in special education classes from an early age, had been on numerous neurological medications since childhood, had barely a fourth grade reading level, and was unable to properly process information.10 Thus, the majority held that each of the three factual bases articulated by the state court was unreasonable: (1) it was unreasonable for the state court to have found that the IQ score of 75 was not “some evidence” of intellectual disability; (2) it was unreasonable to have suggested that Brumfield had proffered no evidence of impairment in adaptive skills; and (3) it was unreasonable to have found that an earlier diagnosis of antisocial personality disorder was inconsistent with ID when the weight of accepted medical literature is to the contrary.
Was it enough to justify relief under (d)(2) that the majority found the preceding facts sufficient to warrant an Atkins hearing? No. That would vitiate the deference to state courts that AEDPA so clearly embraces. According to the majority, review under (d)(2) is triggered not when a federal court disagrees with a state court’s factual determination, but when no “[r]easonable minds reviewing the record might disagree.”11 Query what this implies about the majority’s view of the minds of their four dissenting colleagues.
Though it did not reach the second issue (on funding), the majority incorporated the fact that the denial of funding to develop a claim of ID contributed to the unreasonableness of the determination of the facts. In other words, it folded the second issue into its (d)(2) analysis, thus treating it as another factor in determining unreasonableness of the state court’s factual determination, as opposed to analyzing it as an alleged violation of clearly established federal law under (d)(1). Ultimately, the majority’s holding was at once quite narrow, in that it necessarily was informed by what was actually in the record before the state court in this particular case. At the same time, however, its reasoning was not necessarily limited to the specific facts of any one individual’s ID, or even to >em>Atkins claims—as opposed to any other constitutional claim giving rise to federal habeas relief.
Justice’s Thomas’s passionate dissent—in which the Chief Justice and Justices Scalia and Alito joined except as to Part I-C—is worthy of considerable discussion. First, it was a powerful dissent that exposed the myriad substantive and procedural challenges that have plagued this case and so, too, many other AEDPA cases. It exposed the wealth of evidence in the pre-Atkins sentencing record that potentially undermines Brumfield’s ID claim and, thus, the vulnerabilities inherent in the majority’s analysis. But, to the charge that there was sufficient evidence in the record to justify the state court’s denial of a hearing, the majority responded that contrary evidence in the record was not a reason to deny a hearing; it was all the more reason to have one.12
Second, the dissent accused the majority of “recasting legal determinations as factual ones,”13 or fancy AEDPA footwork, to which the majority responded swiftly and dismissively, emphasizing that it applied (d)(2) at the State’s own behest.14 For the majority, the decision is a clear-cut application of Atkins at a specific procedural juncture. The opinion thus makes apparent that what is relevant is not whether Brumfield is, in fact, intellectually disabled or can prove that he is; rather, given the facts before the state court in Brumfield’s proffer, it was unreasonable to deny him a hearing. That said, one unanticipated consequence of the majority’s decision might be to provide a vehicle for a defendant sentenced to death by virtue of an alleged violation of state law to challenge his conviction and sentence under section (d)(2), as having been based on an unreasonable determination of the facts.
The most remarkable feature of Justice Thomas’s dissent, however, is Part I-C, in which the other three dissenting Justices declined to join. There, Justice Thomas cited at least fifteen times to the autobiography of the victim’s son, NFL star Warrick Dunn, which, needless to say, was not in the record. “This case is a study in contrasts,” he writes.15 Part I-C elaborated on this theme: “Brumfield’s argument that his actions were the product of his disadvantaged background is striking in light of the conduct of [the victim’s] children following her murder.”16 The narrative was both literary and compelling; for an added visual, he attached a picture of the victim, Betty Smothers, in her prime—a rather unusual move. Brumfield’s poor life choices were contrasted to the honorable ones made by Dunn.
Reading the narrated contrast is reminiscent of Justice Thomas’s discussion in his confirmation hearings of Richard Wright’s Native Son, and the last two chapters of Justice Thomas’s own memoir, My Grandfather’s Son, in which he recognized that his own difficult circumstances early in life could have rendered him, too, a tragic figure. Justice Thomas, of course, made far different and better life choices. As did Warrick Dunn. According to the dissent, Brumfield did not. Returning to the majority opinion, though, the Court was called upon in Brumfield “to resolve a different issue.”17 Brumfield’s claim is not about life choices, but the very capacity to make them. Finally, Justice Alito, joined by the Chief Justice, offers a one-paragraph separate dissent, recognizing the value of the inspiring story narrated in Part I-C of the Thomas dissent. But Justice Alito emphasized that, while a valuable read, the recitation must not be viewed as germane to the legal analysis.18
The majority closed its decision with its own powerful contrast. “There has already been one death that society rightly condemns,” wrote Sotomayor. “The question here is whether Brumfield . . . was entitled to a hearing to show that he so lacked the capacity for self-determination that it would violate the Eighth Amendment to permit the State to impose the ‘law’s most severe sentence,’. . . and take his life as well.”19 The majority’s answer to that question was a resounding yes.
1. For two prior successful (d)(2) cases, see Wiggins v. Smith, 539 U.S. 510 (2003), and Miller-El v. Dretke, 545 U.S. 231 (2005).
2. See Nancy J. King et al., Habeas Corpus Litigation in United States District Courts: An Empirical Study, 2000-2006, http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/21200.
3. 536 U.S. 304 (2002).
4. Penry v. Lynaugh, 492 U.S. 302, 340 (1989).
5. 831 So. 2d 835 (La. 2002).
6. Brumfield v. Cain, No. 13-1433, slip op. at 16 (U.S. June 18, 2015) (majority opinion) (quoting Atkins, 536 U.S. at 321).
7. Id. at 7 (majority opinion) (footnote 3 is particularly illuminating and important on this issue).
8. See id. at 2 (majority opinion).
9. Id.. at 3 (majority opinion).
10. Id. at 9–15 (majority opinion) (discussing at length these factors, and evidence of them in the pre-Atkins, state postconviction sentencing record).
11. Id. at 8 (majority opinion) (internal quotation marks omitted).
12. See id. at 15-16 (majority opinion).
13. Id. at 15 (Thomas, J., dissenting).
14. Id. at 7–8 & n.3 (majority opinion).
15. Id. at 1 (Thomas, J., dissenting).
16. Id. at 7 (Thomas, J., dissenting).
17. Id. at 19 (majority opinion).
18. Id. at 1 (Alito, J., dissenting).
19. Id. at 19 (majority opinion).
Recommended Citation
Christy H. DeSanctis, Response, Brumfield v. Cain, Geo. Wash. L. Rev. Docket (june 23, 2015), http://www.gwlr.org/brumfield-v-cain/.
