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Mental disability and the death penalty

One telltale sign of capital punishment’s entrenchment in American politics can be seen in the unwillingness of death-penalty abolitionists to bring full-frontal challenges to the practice. Ever since 1976, when the Supreme Court held capital punishment constitutional, opponents have opted instead to chip away at capital punishment, focusing on such issues as racial bias, categories of defendants who may be executed, the use of the death penalty for offenses other than murder, and methods of execution. This strategy reflected a certain pessimism about whether a Supreme Court that had grown more conservative since the mid-70s would consider rethinking the constitutionality of capital punishment. While we can’t know for certain whether this pessimism was justified–my sense is that it was–we do know that attacking around the edges has produced some results that abolitionists like.

One of these results was a ban on executing mentally disabled capital defendants. Prior to the Court’s 2002 holding in Atkins v. Virginia, states had leeway to determine, on a case-by-case basis, whether defendants’ cognitive limitations so closely reflect diminished moral culpability as to warrant exclusion from execution. Atkins stripped sentencing juries and judges of this discretion, yet the Court opted not to establish a bright-line definition of mental disability. Instead, as it has done with insanity, it left states to define the concept. The result was substantial variation across states, with several adopting a strict IQ cutoff for determining eligibility to be executed.

It was inevitable that the Court would be called upon to determine how states would be allowed to apply Atkins, but whether the Court would resolve the question conclusively remained open. Tuesday’s ruling, in which the Court held that states could not rely exclusively on IQ scores to determine whether a capital defendant is mentally disabled, did not provide this conclusive resolution. The Court, recognizing that IQ test results have an associated margin of error, stated that when a defendant’s score falls within this margin of error, he or she must be allowed to present other evidence supporting a claim of mental disability. Anyone who hoped for the Court to impose a bright-line rule would have been disappointed, as the primary thrust of the ruling in Hall v. Florida was to deny states the right to impose their own bright-line rules.

Why did the Court decline the opportunity to bring some clarity to this area of the law, and to prevent lower courts from being inundated by Atkins claims? Consider what the majority coalition–no point being coy; we’re really talking about Justice Kennedy now–needed to do to remain a majority coalition:

  • Avoid questioning the constitutionality of capital punishment itself.
  • Avoid reversing the Atkins precedent.
  • Avoid allowing the states to effectively reverse Atkins by establishing a definition of mental disability that virtually no defendant could meet.
  • Avoid having to establish best practices for states with the death penalty.

Given these conflicting imperatives, the majority’s decision makes perfect sense. States still have some leeway to determine their own definitions of mental disability, but their application of these definitions must allow for some flexibility and must account for scientific understanding of cognitive disability. The Court doesn’t have to worry about imposing a definition that could be made obsolete by future developments in how the medical community understands mental disability. And the Court doesn’t have to confront the larger question about capital punishment’s compatibility with the Eighth Amendment’s stricture against “cruel and unusual punishment.” The community of death penalty opponents will take Hall as a meaningful victory, and it should.


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