Elmore v. Holbrook ( 2016 )

Cite as: 580 U. S. ____ (2016) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
CLARK ELMORE v. DONALD R. HOLBROOK,
SUPERINTENDENT, WASHINGTON
STATE PENITENTIARY
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 15–7848. Decided October 17, 2016
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting from the denial of certiorari.
Petitioner Clark Elmore was convicted of murder in
1995 and was sentenced to death. His court-appointed
lawyer, who had never tried a capital case before, knew
that Elmore had been exposed to toxins as a young adult
and that he had a history of impulsive behavior. A more
experienced attorney encouraged Elmore’s lawyer to in-
vestigate whether Elmore had suffered brain damage as a
young man. Instead of doing so—indeed, instead of con-
ducting any meaningful investigation into Elmore’s life—
Elmore’s lawyer chose to present a one-hour penalty-phase
argument to the jury about the remorse that Elmore felt
for his crime. As a result, the jury did not hear that
Elmore had spent his childhood playing in pesticide-
contaminated fields and had spent his service in the Vi-
etnam War repairing Agent Orange pumps. The jury did
not hear the testimony of experts who concluded that
Elmore was cognitively impaired and unable to control his
impulses. The jury heard only from an assortment of local
judges that Elmore had looked “dejected” as he pleaded
guilty to murder, not from the many independent witnesses
who had observed Elmore’s searing remorse.
The Constitution demands more. The penalty phase of a
capital trial is “a constitutionally indispensable part of the
2 ELMORE v. HOLBROOK
SOTOMAYOR, J., dissenting
process of inflicting the penalty of death.” Woodson v.
North Carolina, 428 U.S. 280, 304 (1976). It ensures that
a capital sentencing is “humane and sensible to the
uniqueness of the individual.” Eddings v. Oklahoma, 455
U.S. 104, 110 (1982). Elmore’s penalty phase fell well
below the bare minimum guaranteed by the Constitution.
His lawyer acted deficiently in choosing a mitigation
strategy without fully exploring the alternatives and in
failing to investigate the mitigation strategy that he did
choose to present. And had the jury known that Elmore—
who had never before been convicted of a crime of violence
and felt searing remorse for the heinous act he commit-
ted—might be brain damaged, it might have sentenced
him to life rather than death.
This Court has not hesitated to summarily reverse in
capital cases tainted by egregious constitutional error,
particularly where an attorney has rendered constitution-
ally deficient performance. See, e.g., Hinton v. Alabama,
571 U. S. ___ (2014) (per curiam); Sears v. Upton, 561
U.S. 945 (2010) (per curiam); Porter v. McCollum, 558
U.S. 30 (2009) (per curiam). This case plainly meets that
standard. For that reason, I respectfully dissent from the
denial of certiorari.
I
A
Elmore was born in 1951 in central Oregon, where he
lived until his teens. Social History, 12 Record 5524–5530.
He was exposed to powerful neurotoxins from a young age.
Elmore’s house in Oregon was located next to an airport
from which crop dusters regularly sprayed pesticides.
Trial Court Findings of Fact, No. 95–1–00310–1 (Sup. Ct.
Whatcom Cty., Wash., Sept. 10, 2004), 14 id., at 6519–
6520 (FOF). Decades after Elmore moved away, the state
environmental agency took soil samples that showed toxin
levels over 4,500 times the maximum amounts allowed by
Cite as: 580 U. S. ____ (2016) 3
SOTOMAYOR, J., dissenting
state law. Decl. of Raymond Singer, 11 id., at 5394 (Singer
Decl.). Later, Elmore worked on cars and oil pipelines
where he regularly melted lead batteries and handled
solvents without gloves. FOF, 14 id., at 6521–6522. And
when Elmore left home at age 17 to serve in the Vietnam
War, he was tasked with repairing Agent Orange pumps
without protective equipment. Id., at 6522; Singer Decl.,
11 id., at 5395.
Experts who testified at Elmore’s postconviction hearing
agreed that this exposure placed him at serious risk of
brain damage. They conducted neuropsychological tests
that revealed mild to moderate cognitive impairments, see
Reporter’s Tr. in No. 95–1–00310–1, 15 id., at 7076 (PRP
Tr.), including a marked inability to control his emotions
and impulses, see id., at 7079–7080. Elmore tested in the
bottom one percent on tests measuring that characteristic.
Id., at 7080. The experts concluded that damage to
Elmore’s frontal lobe had made him impulsive and suscep-
tible to emotion. See Decl. of Dale Watson, 11 id., at 5383;
Decl. of Raymond Singer, 13 id., at 6389 (2d Singer Decl.);
Decl. of George Woods, 11 id., at 5360–5361 (Woods Decl.).
And they agreed that the murder Elmore later committed
was linked to Elmore’s cognitive deficits—for instance, by
making him unable to “pu[t] on the brakes” when emo-
tional. See FOF, 14 id., at 6495; see also Woods Decl., 11
id., at 5358; 2d Singer Decl., 13 id., at 6389–6390; PRP
Tr., 15 id., at 7094.
Elmore was discharged from the Army under honorable
conditions in 1972, but found it hard to return to civilian
life. 12 id., at 5631. He moved around the United States,
taking jobs in hotels, gas stations, farms, and oil fields.
Social History, id., at 5532–5538. Elmore was arrested
three times—once for stealing checks, once for stealing
furniture, and once for stealing appliances from a motel.
Reporter’s Tr. in No. 95–1–00310–1, 5 id., at 2470–2473
(Trial Tr.); Social History, 12 id., at 5532, 5536. Officers
4 ELMORE v. HOLBROOK
SOTOMAYOR, J., dissenting
at one prison reported that Elmore was nonviolent and, if
anything, was the victim of other inmates’ threats. Id., at
5533–5534. After his second conviction, Elmore was in-
carcerated for two years in Washington state prison,
where he was repeatedly raped by another inmate. Id., at
5536. Until the murder for which he was ultimately sen-
tenced to death, and despite his emotional challenges,
Elmore was never convicted of a violent crime.
Elmore’s death sentence arises out of a murder that he
committed in 1995. The crime was horrific. Elmore raped
and murdered his stepdaughter, first strangling her with
a belt, then driving a sharp object through her ear, and
finally bludgeoning her with a hammer. In re Elmore, 162
Wash. 2d 236, 244, 172 P.3d 335, 340 (2007). Elmore was
apparently motivated by fear that the victim would tell
the authorities that he had previously sexually abused
her. Ibid. After several days of misdirecting the authori-
ties, Elmore turned himself in and confessed. FOF, 14
Record, at 6460. In the wake of the murder, Elmore ex-
pressed extreme remorse. A jailhouse minister who vis-
ited Elmore in prison later attested that, the day after he
arrived, he “was huddled into a ball at the back of the
room, shaking uncontrollably.” Decl. of Dana Paul Sellars,
11 id., at 5399 (Sellars Decl.). Elmore, he said, “was un-
like any prisoner I had counseled before. He was wracked
with anguish and dripping with remorse.” Id., at 5400. A
correctional officer at the prison later testified that Elmore
appeared “in a state of disbelief about what he had done”
and was “an emotional wreck.” Decl. of Donald Pierce, id.,
at 5404–5405.
B
The jury that sentenced Elmore to death learned about
the terrible crime he committed, but heard virtually noth-
ing about his troubling background and cognitive defects.
A lawyer named Jon Komorowski was appointed to repre-
Cite as: 580 U. S. ____ (2016) 5
SOTOMAYOR, J., dissenting
sent Elmore at trial. Komorowski had never previously
worked on a capital case. Decl. of Jon Komorowski, 11 id.,
at 5325 (Komorowski Decl.). On Komorowski’s advice,
Elmore pleaded guilty to capital murder without any
negotiations with the prosecution. Id., at 5326. Because
Elmore pleaded guilty, the trial consisted of only a penalty
phase. During that penalty phase, the State presented
nine witnesses, all of whom testified regarding the horrific
circumstances of the crime. Trial Tr., 5 id., at 2348–2580.
The State also presented evidence of Elmore’s three crimi-
nal convictions, all two decades old. Id., at 2470–2473.
Komorowski’s mitigation case for Elmore lasted only an
hour. See 162 Wash. 2d, at 250, 172 P.3d, at 343. The
theme was remorse: “[T]here are no excuses in this case
and none are offered. There is acceptance of responsibility
and punishment.” Trial Tr., 5 Record 2367; see also id., at
2580–2658 (defense case). The only character witnesses
were the three judges who had presided over Elmore’s
pretrial appearances, who testified that he had sought to
plead guilty from the outset. Id., at 2581–2582, 2587–
2588, 2590–2592. One described Elmore as “somewhat
upset” and “overwhelmed,” a second as “dejected.” Id., at
2586, 2592. The defense investigator read out a “bare
bones” summary of Elmore’s biography. Id., at 2306,
2599–2601. Finally, an expert witness testified that
Elmore’s prior convictions were not violent felonies under
Washington’s three-strikes law. Id., at 2644–2658.
Years later, in postconviction proceedings, Komorowski
acknowledged his error, explaining that the decision not to
investigate Elmore’s medical history was “the product of
. . . inexperience” and “not a strategic decision.” Komo-
rowski Decl., 11 id., at 5329. He admitted that he and the
defense team had reviewed Elmore’s prison records and
some of his hospital records, and had spoken to Elmore’s
family, who had told them about Elmore’s hardships as a
child and as a young adult. PRP Tr., 15 id., at 6907–6911.
6 ELMORE v. HOLBROOK
SOTOMAYOR, J., dissenting
And he consulted with more experienced counsel, includ-
ing an attorney named Todd Maybrown, who strongly
advised Komorowski to investigate indicia of “organic
brain disorder” and cautioned that the testimony of a
psychologist with no neurology background would not be
sufficient. Decl. of Todd Maybrown, 12 id., at 5540–5541
(Maybrown Decl.). Maybrown advised Komorowski that
“he might need to hire a medical doctor to try to determine
if his client suffered from brain damage.” Id., at 5541–
5542.
But Komorowski did not hire a neuropsychiatrist, nor
did he conduct any further investigation into the possibil-
ity of brain damage. Komorowski consulted with three
mental health professionals, but none of them tested for
any sort of brain damage. PRP Tr., 15 id., at 6985–6986,
7406–7407. The first administered a personality test and
concluded that Elmore was not insane, but recommended
that Komorowski consult a second expert about whether
Elmore was a psychopath. Id., at 7404–7405, 7412. The
second concluded that Elmore was not a psychopath: He
demonstrated remorse and empathy, and his crime was
impulsive and reactive, indicating heightened emotional
arousal rather than psychopathy. Id., at 7230–7231. The
third was not a licensed psychologist at all. Id., at 6889,
6911, 6924. The two psychologists later agreed that, had
Komorowski told them about Elmore’s exposure to toxins,
they would have recommended neuropsychological testing.
Id., at 7422–7423, 7243–7244.
C
Elmore moved for postconviction relief in state court,
arguing that Komorowski’s representation deprived him of
effective assistance of counsel in violation of the Sixth
Amendment. But the Washington Supreme Court denied
his claim. In re Elmore, 162 Wash. 2d 236, 172 P.3d 335.
“There is no question that the defense team did investi-
Cite as: 580 U. S. ____ (2016) 7
SOTOMAYOR, J., dissenting
gate petitioner’s mental health deficiencies,” the state
court held. Id., at 258, 172 P. 3d, at 347. “Rather, the
issue is whether counsel’s failure to conduct further eval-
uations amounted to deficient representation. We believe
it did not.” Ibid. The Washington Supreme Court ruled
that Komorowski did not perform below the constitutional
standard and had instead made a “strategic” decision to
curtail the investigation. Ibid. According to the state
court, Komorowski’s strategy was defensible for four rea-
sons: Presenting more mitigation evidence might have
opened the door to damaging rebuttal evidence; additional
witnesses would have been “cumulative” of the judges who
testified; Komorowski worried that if he did not rush to
trial, the prosecution might find witnesses who would
testify that Elmore’s remorse was waning; and Elmore had
objected to the presentation of any mitigation case. Id., at
257–258, 263–265, 172 P.3d, at 346–347, 348–350.
A Federal District Court denied Elmore’s habeas peti-
tion, and the Ninth Circuit affirmed. Elmore v. Sinclair,
799 F.3d 1238 (2015). Two judges held that the Washing-
ton Supreme Court’s decision was not unreasonable. Id.,
at 1243. The third would have found that the Washington
Supreme Court’s determination that Komorowski was
constitutionally effective was unreasonable, but concurred
because he did not believe that the question of prejudice
was beyond debate. Id., at 1256–1257 (opinion of Hurwitz,
J.). Elmore petitioned for certiorari.
II
I would grant the petition and summarily reverse on the
ground that Komorowski’s performance during the penalty
phase of Elmore’s trial violated his Sixth Amendment
right to effective assistance of counsel.
Under the Antiterrorism and Effective Death Penalty
Act of 1996, Elmore is entitled to relief only if the state
court’s adjudication of his claim “resulted in a decision
8 ELMORE v. HOLBROOK
SOTOMAYOR, J., dissenting
that was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S. C.
§2254(d)(1). In other words, we may not grant relief
where reasonable minds could differ over the correct ap-
plication of legal principles, and we must evaluate that
application on the basis of the law that was “clearly estab-
lished” at the time of the state-court adjudication. See
Williams v. Taylor, 529 U.S. 362, 402–409 (2000).
The legal principles that govern claims of ineffective
assistance of counsel (IAC) come from Strickland v. Wash-
ington, 466 U.S. 668 (1984), and were clearly established
over a decade before Elmore’s trial. An IAC claim has two
components: A petitioner must show that counsel’s per-
formance was deficient and that the deficiency prejudiced
the defense. See id., at 687. To establish deficient repre-
sentation, a petitioner must demonstrate that counsel’s
representation “fell below an objective standard of reason-
ableness.” Id., at 688. In order to establish prejudice, a
petitioner must show that, but for the constitutionally
deficient representation, there is a “reasonable probabil-
ity” that the outcome of the proceeding would have been
different. Id., at 694.
“A standard of reasonableness applied as if one stood in
counsel’s shoes spawns few hard-edged rules.” Rompilla v.
Beard, 545 U.S. 374, 381 (2005). But our cases reveal
clearly established principles that, taken together, demon-
strate that the state court’s decision here was contrary to
this Court’s precedents and that the state court unreason-
ably applied the Strickland standard in evaluating
Elmore’s claim.
A
“This is not a case in which defense counsel simply
ignored their obligation to find mitigating evidence.”
Rompilla, 545 U.S., at 381. But Komorowski’s decision
Cite as: 580 U. S. ____ (2016) 9
SOTOMAYOR, J., dissenting
not to search for much of the important mitigating evi-
dence of Elmore’s life was objectively unreasonable under
Strickland. And the Washington Supreme Court’s opinion
declaring Komorowski’s conduct reasonable was contrary
to our precedents. Clearly established legal principles
make that apparent.
First, it was clearly established that constitutionally
effective counsel must thoroughly investigate the defense
he chooses to present. In this case, that was the remorse
defense, the basket into which Komorowski had put all of
Elmore’s eggs. See Wiggins v. Smith, 539 U.S. 510, 526
(2003). Had Elmore’s defense team interviewed even the
jailhouse minister, for instance, whom they knew was
visiting Elmore, the jury would have heard a description of
Elmore’s remorse that was far more robust than the tes-
timony of judges who had observed Elmore for short peri-
ods during his few court appearances. E.g., Sellars Decl.,
11 id., at 5400.
The Washington Supreme Court dismissed this testi-
mony as “cumulative,” but that conclusion was unreasonable
in light of this Court’s precedent. In re Elmore, 162 Wash.
2d, at 265, 172 P.3d, at 350. The judges testified that
Elmore wanted to plead guilty and commented on his
appearance; the jailhouse minister, the correctional of-
ficer, and others would have discussed Elmore’s actual
emotional state over the course of months. Cf. Williams,
529 U.S., at 396 (faulting counsel for presenting some
character witnesses, but not other, stronger character
witnesses, such as certified public accountant); Wiggins,
539 U.S., at 518, 526 (faulting counsel where counsel
stopped investigation before finding evidence about abu-
sive childhood that was more “detailed” and “graphic” than
evidence in counsel’s possession).
Second, we have said time and again that while “strate-
gic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchal-
10 ELMORE v. HOLBROOK
SOTOMAYOR, J., dissenting
lengeable[,] . . . strategic choices made after less than
complete investigation are only reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation.” Strickland, 466 U.S., at
690–691. Before Komorowski decided to focus exclusively
on a remorse-based defense, he had an obligation to fully
investigate other possible mitigation cases. See Sears, 561
U.S., at 953–954; Wiggins, 539 U.S., at 521–526. For
example, Komorowski had been specifically told by an
experienced capital attorney that the testimony of a psy-
chologist was unlikely to be sufficient and that the details
of the crime, standing alone, strongly suggested “some sort
of organic brain disorder or dysfunction.” Maybrown
Decl., 12 Record 5541. Yet he did not pursue neuro-
psychological testing or investigate Elmore’s exposure to
neurotoxins.
The Washington Supreme Court concluded that because
Komorowski had conducted some mental health investiga-
tion, any decision he made about which information to
present to the jury was strategic. In re Elmore, 162 Wash.
2d, at 263–264, 172 P.3d, at 349–350. This was error.
This Court has squarely rejected the notion that “because
counsel had some information with respect to petitioner’s
background . . . they were in a position to make a tactical
choice.” Wiggins, 539 U.S., at 527. To the contrary, we
have often emphasized that an attorney who learns some
information about a defendant’s background is under an
obligation to pursue that information in order to “mak[e]
an informed choice among possible defenses.” Id., at 525.
So too here: The information Komorowski did have about
Elmore’s background and the advice he received from
Maybrown would have prompted a competent attorney to
conduct further investigation and consult with experts
about brain damage. See Komorowski Decl., 11 Record
5329; Social History, 12 id., at 5526, 5531–5538. While
Komorowski consulted with three experts as to Elmore’s
Cite as: 580 U. S. ____ (2016) 11
SOTOMAYOR, J., dissenting
mental health, he neither provided them with sufficient
information to make an informed evaluation nor asked
any of them to administer tests designed to measure
Elmore’s brain functioning. PRP Tr., 15 id., at 6985–6986,
7406–7407.
Third, it was clearly established that, while fear of a
prosecutor’s rebuttal case may justify a decision not to
present certain mitigating evidence, it can rarely justify a
failure to investigate in the first place. See Williams, 529
U.S., at 396 (counsel should have investigated juvenile
records even where records contained evidence he had
been previously committed to the juvenile system); Rom-
pilla, 545 U.S., at 386, n. 5 (counsel should have investi-
gated prior crime even though defense strategy was predi-
cated on keeping evidence of prior crime out). So even if
Komorowski’s fear of opening the door to damaging rebut-
tal evidence could have justified a decision not to intro-
duce mitigating evidence, it could not have justified his
failure to investigate whether that evidence existed in the
first place.
And it is questionable whether Komorowski’s fear could
even have justified the decision not to introduce the evi-
dence. Komorowski identified three aggravators that he
claimed the prosecution could have presented in rebuttal:
the gruesome details of the crime, Elmore’s sexual abuse
of the victim, and his waning remorse. But the first two
aggravators were presented to the jury: the details of the
crime in the State’s penalty-phase argument, Trial Tr., 5
Record 2361–2362, 2500, 2502–2503, and the sexual abuse
during the taped confession that was played to the jury,
PRP Tr., 15 id., at 6952. Nor was there a strong basis for
Komorowski to conclude that Elmore’s remorse was wan-
ing, as his own defense investigator testified that Elmore
remained as remorseful through the day of trial as he had
ever been. Id., at 7439–7440.
Finally, it was clearly established that counsel has an
12 ELMORE v. HOLBROOK
SOTOMAYOR, J., dissenting
obligation to pursue reasonable inquiries even where a
client is “actively obstructi[ng]” that effort. Rompilla, 545
U.S., at 391. Here, evidence introduced at the postconvic-
tion hearing indicated that Elmore resisted some of Ko-
morowski’s efforts to develop a mitigation case, telling him
that he would act out in the courtroom if Komorowski put
on testimony about his personal life. PRP Tr., 15 Record
6994–6995. The Washington Supreme Court drew from
this that Elmore “objected to the presentation of a mitiga-
tion case and threatened to act out in the courtroom if
mitigation was put on for the jury.” In re Elmore, 162
Wash. 2d, at 258, 172 P.3d, at 347. But Komorowski said
no such thing: He testified only that Elmore objected to
the presentation of details about his personal life, not to
the presentation of any mitigation case at all. PRP Tr., 15
Record 6994–6995. Our precedent makes clear that such
an objection does not justify a wholesale failure to investi-
gate readily available mitigating evidence. Rompilla, 545
U.S., at 381.
In short, all of the Washington Supreme Court’s justifi-
cations for Komorowski’s performance stand in sharp
contrast with principles clearly established by this Court.
No reasonable jurist could conclude that Komorowski’s
performance was not deficient.
B
Our precedents make it equally clear that Elmore was
prejudiced by Komorowski’s deficient performance.
First, it was clearly established that the key inquiry for
prejudice purposes is the difference between what was
actually presented at trial and what competent counsel
could have presented. See id., at 393. Here, the difference
between the two is stark. At trial, Komorowski presented
no witnesses who knew Elmore personally; the jury none-
theless deliberated for more than a full day. Trial Tr., 5
Record 2733–2734. By contrast, postconviction counsel
Cite as: 580 U. S. ____ (2016) 13
SOTOMAYOR, J., dissenting
put forth a wealth of mitigating information that was
available to trial counsel: well-respected community mem-
bers who could attest to Elmore’s remorse; neuropsycho-
logical evidence about Elmore’s frontal lobe damage and
how it may have directly affected the commission of his
crime; and information about Elmore’s history of head
injuries and exposure to neurotoxins, including his expo-
sure to Agent Orange when he served in the Vietnam War.
Second, it was clearly established that an inquiry to
prejudice should not presume that an expert opinion about
the magnitude and effect of a defendant’s mental health
issues is rendered meaningless by the State’s introduction
of a contrary opinion. In Porter, for example, the State’s
two experts disputed petitioner’s postconviction expert’s
conclusion that he was acting under the influence of an
extreme emotional disturbance and that brain damage
impaired his ability to obey the law. 558 U.S., at 36. We
nonetheless concluded that the absence of an expert wit-
ness at trial prejudiced petitioner: “While the State’s
experts identified perceived problems with the tests that
[petitioner’s expert] used and the conclusions that he drew
from them, it was not reasonable to discount entirely the
effect that his testimony might have had on the jury.” Id.,
at 43.
Here, too, it was not reasonable to “discount entirely”
the testimony of Elmore’s three postconviction experts.
Particularly given that this was Elmore’s first conviction
for a violent crime, a jury might have been convinced that
this crime was a direct result of Elmore’s cognitive im-
pairments, as Elmore’s three experts opined. And even if
the jury was not convinced that there was a causal nexus
between the crime and Elmore’s brain damage, there was
a reasonable probability that the jury would have at least
credited evidence on which all parties—including the
State’s expert—agreed, namely, that Elmore’s cognitive
limitations contributed in at least a “longer term” way to
14 ELMORE v. HOLBROOK
SOTOMAYOR, J., dissenting
the crime. PRP Tr., 15 Record 7355; see, e.g., Williams,
529 U.S., at 398 (considering evidence of borderline men-
tal retardation even though crime was not linked to cogni-
tive impairments); Sears, 561 U.S., at 945 (considering
frontal lobe damage even though crime was not linked to
brain damage).
Finally, it was clearly established that even a defendant
who committed a heinous crime can be prejudiced by
ineffective counsel. See Williams, 529 U.S., at 368 (peti-
tioner “brutally assaulted an elderly woman”); Rompilla,
545 U.S., at 397 (KENNEDY, J., dissenting) (“brutal
crime”; victim was stabbed 16 times, beaten with a blunt
object, gashed in the face with beer bottle shards, and set
on fire); Wiggins, 539 U.S., at 553, n. 4 (Scalia, J., dissent-
ing) (“bizarre crime” in which 77-year-old woman was
found drowned in her bathtub, missing her underwear,
and sprayed with insecticide). Elmore’s crime was hor-
rific, but there was a dramatic difference between the miti-
gation that was presented and the mitigation that should
have been presented. The evidence presented by postcon-
viction counsel “adds up to a mitigation case that bears no
relation to the few naked pleas for mercy actually put
before the jury, and although we suppose it is possible that
a jury could have heard it all and still have decided on the
death penalty, that is not the test.” Rompilla, 545 U.S.,
at 393.
* * *
Many observers, on and off this Court, have questioned
the reliability and fairness of the imposition of capital
punishment in America. See, e.g., Glossip v. Gross, 576
U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at
1); Baze v. Rees, 553 U.S. 35, 86 (2008) (Stevens, J., con-
curring in judgment); Callins v. Collins, 510 U.S. 1141,
1145 (1994) (Blackmun, J., dissenting from denial of certi-
orari); Fletcher, Our Broken Death Penalty, 89 N. Y. U.
Cite as: 580 U. S. ____ (2016) 15
SOTOMAYOR, J., dissenting
L. Rev. 805 (2014); D. Baldus et al., Equal Justice and the
Death Penalty: A Legal and Empirical Analysis (1990).
Whether our system of capital punishment is inconsistent
with the Eighth Amendment, as these critics have
charged, is not at issue here. I do believe, however, that
whatever flaws do exist in our system can be tolerated
only by remaining faithful to our Constitution’s procedural
safeguards.
All crimes for which defendants are sentenced to death
are horrific. See Glossip, 576 U. S., at ___ (BREYER, J.,
dissenting) (slip op., at 14); id., at ___ (THOMAS, J., concur-
ring) (slip op., at 6–10). But not all defendants who com-
mit horrific crimes are sentenced to death. Some are
spared by juries. The Constitution guarantees that possi-
bility: It requires that a sentencing jury be able to fully
and fairly evaluate “the characteristics of the person who
committed the crime.” Gregg v. Georgia, 428 U.S. 153,
197 (1976) (joint opinion of Stewart, Powell, and Stevens,
JJ.). That guarantee is a bedrock premise on which our
system of capital punishment depends, and it is a guaran-
tee that must be honored—especially for defendants like
Elmore, whose lives are marked by extensive mitigating
circumstances that might convince a jury to choose life
over death. Only upon hearing such facts can a jury fairly
make the weighty—and final—decision whether such a
person is entitled to mercy.
I respectfully dissent from the denial of certiorari.