BREWER v. QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, COR- RECTIONAL INSTITUTIONS DIVISION

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Syllabus
BREWER v. QUARTERMAN, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, COR-
RECTIONAL INSTITUTIONS DIVISION
certiorari to the united states court of appeals for
the fifth circuit
No. 05–11287. Argued January 17, 2007—Decided April 25, 2007
Petitioner Brewer was convicted of murder committed during the course
of a robbery. At sentencing, he introduced mitigating evidence of his
mental illness, his father’s extensive abuse of him and his mother, and
his substance abuse. His counsel made the strategic decision not to
present any expert psychological or psychiatric testimony. The trial
judge rejected all of Brewer’s proposed instructions designed to give
effect to the mitigating evidence he presented, instructing the jury in
stead to answer only two special issues: whether his conduct was com
mitted deliberately and with the reasonable expectation it would result
in his victim’s death and whether it was probable he would commit fu
ture violent acts constituting a continuing threat to society. In closing
argument, the prosecutor emphasized that Brewer’s violent response to
physical abuse by his father supported an affirmative answer to the
“future dangerousness” special issue; he deemphasized any mitigating
effect such evidence should have, stressing that the jurors lacked the
power to exercise moral judgment and, in determining Brewer’s sen
tence, must answer the questions according to the evidence. Ulti
mately, the jury answered both special issues in the affirmative, and
Brewer was sentenced to death. The Texas Court of Criminal Appeals
(CCA) affirmed on direct appeal and denied Brewer’s application for
state postconviction relief. He then filed a federal habeas petition.
Following supplemental briefing concerning Tennard v. Dretke, 542 U. S.
274, the District Court granted conditional relief, but the Fifth Circuit
reversed and rendered its own judgment denying the petition.
Held: Because the Texas capital sentencing statute, as interpreted by the
CCA, impermissibly prevented Brewer’s jury from giving meaningful
consideration and effect to constitutionally relevant mitigating evidence,
the CCA’s decision denying Brewer relief under Penry v. Lynaugh, 492
U. S. 302 (Penry I), was both “contrary to” and “involved an unreason
able application of, clearly established Federal law, as determined by
[this] Court,” 28 U. S. C. § 2254(d). Pp. 292–296.
(a) Brewer’s trial was infected with the same constitutional error that
occurred in Penry I, where the Court held that jury instructions that

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merely articulated the Texas special issues, without directing the sen
tencing jury “to consider fully Penry’s mitigating evidence as it bears
on his personal culpability,” did not provide an adequate opportunity for
the jury to decide whether that evidence might provide a legitimate
basis for imposing a sentence other than death. 492 U. S., at 323. The
Court characterized Penry’s mental-retardation and childhood-abuse ev
idence as a “two-edged sword” that “diminish[ed] his blameworthiness
for his crime even as it indicate[d] a probability” of future dangerous
ness. Id., at 324. Brewer’s mitigating evidence similarly served as a
“two-edged sword.” Even if his evidence was less compelling than Pen
ry’s, that does not justify the CCA’s refusal to apply Penry I here. It
is reasonably likely the jurors accepted the prosecutor’s argument to
limit their decision to whether Brewer had acted deliberately and was
likely a future danger, disregarding any independent concern that his
troubled background might make him undeserving of death. Also un
persuasive is the Fifth Circuit’s explanation that Brewer’s lack of expert
evidence and that court’s precedents holding that mental retardation,
but not mental illness, can give rise to a Penry I violation prompted the
Circuit’s reversal of the grant of habeas relief. This Court has never
suggested that the question whether the jury could have adequately
considered mitigating evidence is a matter purely of quantity, degree,
or immutability. Rather, the Court has focused on whether such evi
dence has mitigating relevance to the special issues and the extent to
which it may diminish a defendant’s moral culpability for the crime.
See id., at 322. Pp. 292–294.
(b) Under the narrowest possible reading of Penry I, Texas’ special
issues do not provide for adequate jury consideration of mitigating evi
dence that functions as a “two-edged sword.” The Fifth Circuit’s mis
characterization of the law as demanding only that such evidence be
given “sufficient mitigating effect,” and improperly equating “sufficient
effect” with “full effect,” is not consistent with the reasoning of Penry
v. Johnson, 532 U. S. 782 (Penry II), which issued after Penry’s resen
tencing (and before the Fifth Circuit’s opinion in this case). Like the
“constitutional relevance” standard rejected in Tennard, a “sufficient
effect” standard has “no foundation” in this Court’s decisions. 542
U. S., at 284. For the reasons explained in this case and in Abdul-
Kabir, ante, p. 233, the Circuit’s conclusions that Brewer’s mental-illness
and substance-abuse evidence could not constitute a Penry violation,
and that troubled-childhood evidence may, because of its temporary
character, fall sufficiently within the special issues’ ambit, fail to heed
this Court’s repeated warnings about the extent to which the jury must
be allowed not only to consider mitigating evidence, or to have such
evidence before it, but to respond to it in a reasoned, moral manner

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and assign it weight in deciding whether a defendant truly deserves
death. Pp. 294–296.
442 F. 3d 273, reversed.
Stevens, J., delivered the opinion of the Court, in which Kennedy,
Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dis
senting opinion, in which Scalia, Thomas, and Alito, JJ., joined, ante,
p. 265. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined,
and in which Alito, J., joined as to Part I, ante, p. 280.
Robert C. Owen, by appointment of the Court, 549 U. S.
1029, argued the cause for petitioner. With him on the
briefs were Jordan M. Steiker and John King.
Edward L. Marshall, Assistant Attorney General of
Texas, argued the cause for respondent. With him on the
briefs were Greg Abbott, Attorney General, Kent C. Sulli
van, First Assistant Attorney General, Eric J. R. Nichols,
Deputy Attorney General, and Gena Bunn and Carla E. El
dred, Assistant Attorneys General.*
Justice Stevens delivered the opinion of the Court.
This is a companion case to Abdul-Kabir v. Quarterman,
ante, p. 233. Like the petitioner in that case, petitioner
Brent Ray Brewer claims that the former Texas capital sen
tencing statute impermissibly prevented his sentencing jury
from giving meaningful consideration to constitutionally rel
evant mitigating evidence.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I), we
held that jury instructions that merely articulated the Texas
“special issues,” without directing the jury “to consider fully
Penry’s mitigating evidence as it bears on his personal culpa
bility,” did not provide his sentencing jury with an adequate
opportunity to decide whether that evidence might provide
*Briefs of amici curiae urging reversal were filed for the American
Academy of Child and Adolescent Psychiatry et al. by James W. Ellis,
April Land, and Stephen K. Harper; and for the Child Welfare League of
America et al. by Jeffrey J. Pokorak, Marsha Levick, and Pamela Harris.

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a legitimate basis for imposing a sentence other than death.
Id., at 323. We characterized the evidence of Penry’s mental
retardation and history of childhood abuse as a “two-edged
sword,” because “it may diminish his blameworthiness for
his crime even as it indicates that there is a probability that
he will be dangerous in the future.” Id., at 324.
As an overview of the cases both preceding and following
Penry I demonstrates, we have long recognized that a sen
tencing jury must be able to give a “ ‘reasoned moral re
sponse’ ” to a defendant’s mitigating evidence—particularly
that evidence which tends to diminish his culpability—when
deciding whether to sentence him to death. Id., at 323; see
also Abdul-Kabir, ante, at 246–256, 260–263. This principle
first originated in Lockett v. Ohio, 438 U. S. 586 (1978), and
Eddings v. Oklahoma, 455 U. S. 104 (1982), in which we held
that sentencing juries in capital cases “must be permitted to
consider any relevant mitigating factor,” id., at 112 (empha
sis added). In more recent years, we have repeatedly em
phasized that a Penry violation exists whenever a statute,
or a judicial gloss on a statute, prevents a jury from giving
meaningful effect to mitigating evidence that may justify the
imposition of a life sentence rather than a death sentence.
See Abdul-Kabir, ante, at 260–263. We do so again here,
and hold that the Texas state court’s decision to deny relief
to Brewer under Penry I was both “contrary to” and “in
volved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U. S. C. § 2254(d).
I
In 1991, Brewer was convicted of murder committed dur
ing the course of a robbery. At sentencing, he introduced
several different types of mitigating evidence, including
“that he had a bout with depression three months before
the murder; that he was briefly hospitalized for that de
pression; that his co-defendant, a woman with whom he

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was apparently obsessed, dominated and manipulated
him; that he had been abused by his father; that he had
witnessed his father abuse his mother; and that he had
abused drugs.” Brewer v. Dretke, 442 F. 3d 273, 275
(CA5 2006) (per curiam) (footnotes omitted).1
As a result of a strategic decision on his counsel’s part,
Brewer neither secured nor presented any expert psycholog
ical or psychiatric testimony.
At the conclusion of the sentencing hearing, Brewer sub
mitted several additional instructions designed to give effect
to the mitigating evidence he did present. App. 81–87.
The trial judge rejected all of his proposed instructions and
instead instructed the jury to answer only two special issues:
“ ‘Do you find from the evidence beyond a reasonable
doubt that the conduct of the defendant, BRENT RAY
BREWER, that caused the death of the deceased, Rob
ert Doyle Laminack, was committed deliberately and
with the reasonable expectation that the death of the
deceased would result?
. . . . .
1 On direct appeal, the Texas Court of Criminal Appeals (CCA) summa
rized the same evidence as follows:
“1) Appellant was not mentally retarded, but was involuntarily committed
on January 1, 1990, for ‘major depression, single episode, without psychotic
features, polysubstance abuse.’ The examining physician based his opin
ion on a suicide note appellant wrote to his mother. On January 25, appel
lant signed a request for voluntary admission to Big Springs State Hospi
tal for fourteen days.
“2) Appellant came from an abused background where he was ignored by
both his father and step-father. He did not have a relationship or live
with his real father until after he was fifteen-years old. Appellant’s fa
ther hit him on several occasions, once with the butt of a pistol and once
with a flashlight. Appellant’s father frequently beat his mother. Appel
lant’s father had once told him, ‘If you ever draw your hand back, you’d
better kill me because I’ll kill you.’
“3) Appellant had smoked marijuana when he was a teenager.” Brewer
v. State, No. 71,307 (June 22, 1994), p. 15, App. 140 (footnotes omitted).

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“ ‘Do you find from the evidence beyond a reasonable
doubt that there is a probability that the defendant,
BRENT RAY BREWER, would commit criminal acts
of violence that would constitute a continuing threat to
society?’ ” 442 F. 3d, at 277.
In closing argument, the prosecutor emphasized that
Brewer’s violent response to his father’s extensive physical
abuse of both Brewer and his mother supported an affirma
tive answer to the “future dangerousness” special issue. In
contrast, he deemphasized any mitigating effect that such
evidence should have on the jury’s determination of Brew
er’s fate:
“And, you know, folks, you can take a puppy, and you
can beat that puppy and you can make him mean, but if
that dog bites, he is going to bite the rest of his life, for
whatever reason.
“Whatever got him to this point, he is what he is today.
And that will never change. That will never change.
“All that’s happened to this time or all those years can
not change the violence and the cold, cold-bloodedness
that he’s exhibited right here. Not one tear. Not one
tear, because life means nothing to him. Zero.
“You go back, you look at the evidence and you decide,
not because of a poor family and not because of the sur
vivors, because of the evidence that you see that he has
shown.” App. 118.
The prosecutor stressed that the jurors lacked the power to
exercise moral judgment in determining Brewer’s sentence,
admonishing them that “[y]ou don’t have the power to say
whether [Brewer] lives or dies. You answer the questions
according to the evidence, mu[ch] like you did at the guilt or
innocence [sic]. That’s all.” Id., at 114. Ultimately, the
jury answered both special issues in the affirmative, and
Brewer was sentenced to death.

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Brewer’s conviction and sentence were affirmed on direct
appeal.2 Brewer v. State, No. 71,307 (Tex. Crim. App., June
22, 1994) (en banc), App. 122–171. He then filed an applica
tion for state postconviction relief, which the CCA denied
on January 31, 2001, over the dissent of three judges.3
Ex parte Brewer, 50 S. W. 3d 492 (2001) (per curiam order).
Brewer subsequently filed a federal habeas petition in
the United States District Court for the Northern District
of Texas. After requesting supplemental briefing concern
ing Tennard v. Dretke, 542 U. S. 274 (2004), the District
Court granted conditional relief. Brewer v. D retke,
No. Civ.A.2:01–CV–0112–J (Aug. 2, 2004), App. 185–213. On
March 1, 2006, the United States Court of Appeals for the
Fifth Circuit reversed the judgment of the District Court
and rendered its own judgment denying the petition. 442
F. 3d, at 282. We granted certiorari. 549 U. S. 974 (2006).
II
Like the petitioner in Abdul-Kabir, Brewer contends that
the same constitutional error that infected Penry’s sentenc
ing hearing occurred in his trial. We agree. As did Pen
ry’s, Brewer’s mitigating evidence served as a “two-edged
2 The CCA’s opinion on direct appeal provides the only meaningful ex
planation by a Texas state court as to why Brewer’s Penry I claim was
denied. See n. 5, infra. When Brewer raised the same claim in his state
postconviction proceedings, the trial court set forth, and the CCA adopted,
a one-sentence ruling embracing the holding previously made on direct
appeal: “The . . . special issues . . . were an adequate vehicle for the jury’s
consideration of the mitigating evidence . . . .” App. 176; Ex parte
Brewer, 50 S. W. 3d 492, 493 (2001) (per curiam).
3 Judge Price filed a dissent to the order dismissing Brewer’s postconvic
tion application for relief, joined by Judges Johnson and Holcomb. Id., at
493–495. In the dissenters’ view, Brewer had alleged a colorable claim of
ineffective assistance of counsel, based on his counsel’s failure to procure
a mental health expert who could have examined him in preparation for
trial. Id., at 493.

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sword” because it tended to confirm the State’s evidence of
future dangerousness as well as lessen his culpability for the
crime.4 Penry I, 492 U. S., at 324. It may well be true that
Brewer’s mitigating evidence was less compelling than Pen
ry’s, but, contrary to the view of the CCA, that difference
does not provide an acceptable justification for refusing to
apply the reasoning in Penry I to this case.5 There is surely
a reasonable likelihood that the jurors accepted the prosecu
tor’s argument at the close of the sentencing hearing that
all they needed to decide was whether Brewer had acted
deliberately and would likely be dangerous in the future,6
4 For example, the prosecution introduced the testimony of a police offi
cer who had been called to quell a family dispute as evidence of Brewer’s
violent character. App. 6–15. The prosecution also introduced testi
mony from a doctor who treated Brewer’s father after Brewer struck him
with a broom handle in response to his father’s attack on his mother. Id.,
at 23–25.
5 The CCA’s opinion purporting to distinguish Penry I simply stated:
“We conclude the second punishment issue provided an adequate vehicle
for the jurors to give effect to appellant’s mitigating evidence. We have
held a stay in a mental hospital does not evidence a ‘long term mental
illness which would affect appellant’s ability to conform to the require
ments of society.’ Joiner [v. State, 825 S. W. 2d 701, 707 (1992) (en banc)].
As in Joiner, the evidence shows no more than appellant’s threat to commit
suicide and a stay at a hospital on one occasion. Id. Further, appellant’s
evidence of drug abuse and an abusive homelife was given effect within
the scope of the punishment issues. Ex parte Ellis, 810 S. W. 2d 208,
211–212 (Tex. Cr. App. 1991) (drug addiction); Goss v. State, 826 S. W.
2d 162, 166 (Tex. Cr. App. 1992) (abusive household).” No. 71,307, at 15,
App. 141.
In neither its opinion in this case nor in Joiner did the CCA explain why
Brewer’s evidence was not the same kind of “two-edged sword” as Penry’s,
other than to suggest that it was less persuasive. 492 U. S., at 324.
6 “It’s not a matter of life and death. It’s whether it was deliberate.
Was this act deliberate? Will he continue to commit violent acts? That’s
all you answer. And every one of you people told me you would base that
not upon the result, but upon what the evidence dictates you must do.”
App. 115 (paragraph break omitted).

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necessarily disregarding any independent concern that,
given Brewer’s troubled background, he may not be deserv
ing of a death sentence.
Also unpersuasive in distinguishing the instant case from
others to which Penry I applies is the Fifth Circuit’s explana
tion regarding the lack of expert evidence in Brewer’s case
(as compared to that presented by the petitioner in Abdul-
Kabir) and its distinction between mental illness and mental
retardation. In its opinion reversing the District Court’s
conditional grant of habeas relief, the Court of Appeals noted
that, under its precedents, “[t]he only instances in which
mental illness has given rise to Penry I violations involve
those where the illness in question is chronic and/or immuta
ble [as in the case of mental retardation].” 442 F. 3d, at 280.
The court also emphasized the lack of expert psychiatric evi
dence in this case, contrasting the record below with that in
Abdul-Kabir, and concluded that Brewer “came nowhere
near to producing evidence sufficient for us to grant relief.”
442 F. 3d, at 281. Nowhere in our Penry line of cases have
we suggested that the question whether mitigating evidence
could have been adequately considered by the jury is a mat
ter purely of quantity, degree, or immutability. Rather, we
have focused on whether such evidence has mitigating rele
vance to the special issues and the extent to which it may
diminish a defendant’s moral culpability for the crime. The
transient quality of such mitigating evidence may make it
more likely to fall in part within the ambit of the special
issues; however, as we explained in Penry I, such evidence
may still have “relevance to the defendant’s moral culpability
beyond the scope of the special verdict questions.” 492
U. S., at 322 (citing and quoting Franklin v. Lynaugh, 487
U. S. 164, 185 (1988) (O’Connor, J., concurring in judgment)).
III
Under the narrowest possible reading of our opinion in
Penry I, the Texas special issues do not provide for adequate

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consideration of a defendant’s mitigating evidence when that
evidence functions as a “two-edged sword.” As the District
Court explained in its opinion granting habeas corpus relief
in this case:
“The mitigating evidence presented may have served as
a basis for mercy even if a jury decided that the murder
was committed deliberately and that Petitioner posed a
continuing threat. Without an instruction, much less a
special issue on mitigation, this evidence was out of the
jury’s reach. Given the nature of the mitigating evi
dence before the jury and the lack of any instruction on
mitigation, there is a reasonable likelihood that the jury
applied its instructions in a way that prevented the con
sideration of the mitigating evidence. Reviewing the
evidence in light of the special issues, a jury would be
very hard pressed to see the evidence presented as any
thing but aggravating. Failure to submit an instruction
on mitigation evidence was an unreasonable applica
tion of federal law and Supreme Court precedent. Ac
cordingly, habeas relief on this issue is conditionally
granted.” No. Civ.A.2:01–CV–0112–J, at 9, App. 196.
In reversing the District Court’s grant of habeas relief,
and rejecting that court’s conclusion that Brewer’s mitigat
ing evidence was effectively “out of the jury’s reach,” the
Court of Appeals mischaracterized the law as demanding
only that such evidence be given “sufficient mitigating ef
fect,” and improperly equated “sufficient effect” with “full
effect.” 7 This is not consistent with the reasoning of our
7 The Court of Appeals explained: “For the mitigating evidence to be
within the effective reach of the jury in answering the special issues, the
special interrogatories must be capable of giving relevant evidence consti
tutionally sufficient mitigating effect. Whether that sufficiency requires
that the evidence be given ‘full,’ or merely ‘some,’ mitigating effect has
been the subject of considerable discussion in this court, but ultimately
the distinction is only one of semantics, because regardless of what label
is put on the word ‘effect,’ it is indisputable that the effect must be consti

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opinion issued after Penry’s resentencing (and before the
Fifth Circuit’s opinion in this case). See Penry v. Johnson,
532 U. S. 782 (2001) (Penry II). Like the “ ‘constitutional
relevance’ ” standard that we rejected in Tennard, a “suffi
cient effect” standard has “no foundation in the decisions of
this Court.” 542 U. S., at 284.
For reasons not supported by our prior precedents, but
instead dictated by what until quite recently has been the
Fifth Circuit’s difficult Penry jurisprudence, the Court of
Appeals concluded that Brewer’s evidence of mental illness
and substance abuse could not constitute a Penry violation.
It further concluded that “evidence of a troubled childhood
may, as a result of its temporary character, fall sufficiently
within the ambit of ” the special issues. 442 F. 3d, at 280.
For the reasons explained above, as well as in our opinion in
Abdul-Kabir, these conclusions fail to heed the warnings
that have repeatedly issued from this Court regarding the
extent to which the jury must be allowed not only to consider
such evidence, or to have such evidence before it, but to re
spond to it in a reasoned, moral manner and to weigh such
evidence in its calculus of deciding whether a defendant is
truly deserving of death. Accordingly, the judgment of the
Court of Appeals is reversed.
It is so ordered.
[For dissenting opinion of The Chief Justice, see ante,
p. 265; for dissenting opinion of Justice Scalia, see ante,
p. 280.]
tutionally ‘sufficient.’ Even if the requirement is called ‘full,’ it means
nothing more than ‘sufficient.’ ” Brewer v. Dretke, 442 F. 3d 273, 278–279
(CA5 2006) (per curiam) (footnote omitted).