Three Justices Say Supreme Court Should Review Death Sentence for Man With Brain DamageJanuary 11, 2019

On Monday, the United States Supreme Court declined to review the case of Donnie Lance, a man suffering from severe mental impairment who was sentenced to death in Georgia after his lawyer failed to present any evidence to the jury about why his life was worth sparing.

Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, dissented from the Supreme Court's denial of review, writing that "the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied."

Donnie Lance was charged with capital murder in the killing of his ex-wife and her boyfriend in 1997. He was represented at trial by a solo practitioner who became convinced that he could prove Mr. Lance's innocence and thus did not prepare at all for the penalty phase of the trial.

"So when the jury found Lance guilty and the question became whether Lance should be put to death," Justice Sotomayor wrote, "Lance's counsel had no evidence whatsoever to present."

In sharp contrast, state prosecutors called six witnesses to tell the jury why Mr. Lance deserved to die. The jury sentenced Mr. Lance to death.

New counsel presented extensive evidence of Mr. Lance's serious cognitive impairments. Mr. Lance had suffered repeated serious head traumas caused by multiple car crashes, alcoholism, and being shot in the head by unknown assailants. After the shooting, he had "terrible headaches," "dizziness," "difficulty working," and "became even more quiet than he had before."

Four mental health professionals testified that Mr. Lance had permanent damage to his brain's frontal lobe; his IQ was in the borderline range for intellectual disability; and he suffered from clinical dementia.  Three of the experts agreed that Mr. Lance’s brain damage significantly impaired his ability to control his impulses at the time of the crime; the state's expert disagreed about the extent of his impairment.

The trial court who heard the evidence vacated Mr. Lance's death sentence, holding that his trial lawyer's failure to investigate and present evidence of his medical condition was ineffective assistance in violation of the Sixth Amendment. "The missing evidence could have prompted a different sentence, the court explained, because it went directly to the key issue before the jury: the assessment of Lance's character, culpability, and worth."

Prosecutors appealed, and the Georgia Supreme Court reversed, holding that the lawyer's failure to investigate was deficient, but it did not matter, because any mitigating evidence would have been outweighed by the nature of the crime.

On appeal, the United States Court of Appeals for the Eleventh Circuit ruled the state supreme court's ruling was not unreasonable.

Georgia law permits a death sentence only after a unanimous jury recommendation for death, so Mr. Lance only needed to show a reasonable probability that the mitigating evidence would have persuaded a single juror to vote for life. The trial court that heard the mitigating evidence concluded it met that standard.

The three-justice dissent agreed. Mr. Lance's jurors knew hardly anything about him other than the facts of the crime and heard nothing that humanized him. But if counsel had done his job, they would have learned that Mr. Lance's brain "endured physical trauma throughout his life, resulting in frontal lobe damage and dementia" and that his "cognitive deficits could affect his impulse control and capacity to conform his behavior to the law, especially at moments of emotional distress."

Taken together, those facts—with their accompanying explanatory potential to humanize Lance, or at least to render less incomprehensible his conduct—were significant mitigating evidence.

Because that mitigating evidence "reasonably could have affected at least one juror's assessment of whether Lance deserved to die for his crimes," the dissenters concluded, the Georgia Supreme Court's decision that it would have been futile to present it was unreasonable."

"Lance should have been given a chance to make the case for his life," Justice Sotomayor wrote in conclusion. Instead, because the Court refused to intervene, "Lance may well be executed without any adequately informed jury having decided his fate."

The failure to provide adequate counsel to capital defendants and death row prisoners is a defining feature of the American death penalty. Whether a defendant will be sentenced to death typically depends more on the quality of his legal team than any other factor. While some lawyers have provided outstanding representation to capital defendants, few defendants facing capital charges can afford to hire an attorney, so they are appointed attorneys who are frequently overworked, underpaid, and/or inexperienced in trying death penalty cases.

A lawyer's failure to do any work at all in preparation for the sentencing phase is especially prejudicial when his or her client suffers from intellectual disability or serious mental illness. In 2002, the Supreme Court in Atkins v. Virginia held that the execution of people with intellectual disability (formerly known as mental retardation) violates the Eighth Amendment’s ban on cruel and unusual punishment. And evidence of severe mental impairments can convince jurors to reject the death penalty because people whose mental illness, disorder, or disability significantly impaired their cognitive or volitional functioning at the time of the offense clearly are not as culpable or deterrable as mentally healthy people.