Whether evidence of or reference to psychopathy should be treated as potentially mitigating or as categorically aggravating in capital sentencings

QUESTIONS PRESENTED During Petitioner Thomas Creech’s most recent sentencing, he was referred to as a “psychopath.” That is not uncommon in capital sentencings, and defense lawyers must decide how to respond to the label. The Courts of Appeals are divided on whether that label is always aggravating—such that a defense lawyer who does not prevent or at least respond to it may have been ineffective for Sixth-Amendment purposes. The Fifth, Eighth, and Tenth Circuits have treated psychopathy as categorically aggravating, as have the Ninth and Eleventh Circuits in some cases. On the other hand, the Ninth Circuit (in Mr. Creech’s case) and the Eleventh Circuit have held that the label may in some situations be mitigating and, so, not a basis for an claim. Mr. Creech has been on death row for forty-one years. His tenure there was greatly prolonged by the need for him to be resentenced after he obtained habeas relief and by fluctuations in this Court’s precedent that occasioned two appeals below and a remand for extensive litigation. Mr. Creech’s time on death row has been typified by the kind of “[y]ears on end of near-total isolation” that multiple Justices have identified as a constitutional problem calling for this Court’s review, Ruiz v. Texas, 1378. Ct. 1246, 1247 (2017) (Breyer, J., dissenting) (quoting Davis v. Ayala, 135 S. Ct. 2187 (2015) (Kennedy, J., concurring)), with twenty-three hours a day by himself in a tiny cell facing the execution chamber and very few opportunities for meaningful human contact. The questions presented are these: 1. Whether, for purposes of measuring claims arising from capital sentencings, evidence of or reference to psychopathy should be treated as potentially mitigating or as categorically aggravating? 2. Whether the Eighth Amendment is implicated by a prisoner’s excessively long residence on a highly restrictive death row. PETITION FOR WRIT OF CERTIORARI — Page i