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Will SCOTUS Micromanage Determinations of Retardation?

In 1976, the US Supreme Court allowed the resumption of capital punishment under revamped statutes, stating only a broad outline of the kind of statute required and approving three quite different systems as coming within that outline.  In the years that followed, the high court proceeded to micromanage the capital sentencing system, ultimately disapproving essential features of the Florida and Texas systems it had initially approved.

The result was a disaster.  Justice was badly delayed and in many cases ultimately denied as judgments that were valid when entered were overturned on the basis of rules conjured up out of blue sky years or decades after the trial.

In more recent years, the high court has stopped tinkering with sentencing procedure but has instead announced categorical rules of exclusion from the death penalty.  For persons under 18 at the time of the crime and for crimes where the victim survives, these rules at least have the benefit of clarity.  For the mental retardation exclusion, however, the court has attempted to draw a bright line in dry sand.  Intellectual disability is a continuum, and for anyone close to the line there will always be room for disagreement among experts.  Questions of procedure and definition may therefore make the difference between a person being eligible for the death penalty or not.

In the Atkins case, the court said states would have leeway in this area.  Will the court now break this promise and micromanage the retardation determination procedure, repeating its huge mistake of 1980s?  That is the question presented in Hall v. Florida, No. 12-10882, taken up by the high court today.

There is no need for micromanagement because there is no need for a categorical exclusion for anyone close to the line.  Under the preexisting rule of Penry v. Lynaugh (1989), capital defendants have been allowed to present any intellectual disability to the sentencer as a mitigating circumstance, regardless of whether it meets the DSM or other definition for a particular diagnosis.  If the defendant is not so clearly retarded that he would be found so under any reasonable procedure and definition, then he is not so impaired that the national consensus found in Atkins warrants removing the case from the discretion of the sentencer.


Don't mean to sound stupid, but can you explain why the Court shouldn't adopt a definition of mental retardation that would have nationwide application for purpose of Atkins? Having decided Atkins, isn't the next logical step for the Court to do just that, rather than leave it up to the states? How would this constitute "micromanagement"?

When cert. was granted on Atkins, I wondered whether the Court would really constitutionalize an IQ test. Of course, the Court skirted that issue when it said that there was some thing called mental retardation which, constitutionally excluded the sufferer from execution, but would be defined by the states. Now, it appears that the Court, unsatisfied with that state of affairs will try to speak, before all others, on the precise definition of mental retardation. (Hey, after "What is golf?" what's mental retardation among friends? And yes, I get that "What is golf" was decided in a case of statutory construction, but the Wille zur Macht sans shamelessness is the same.")

The issue, and I think Kent explained it will, is that trying to define "mental retardation" for purposes of a constitutional standard is a fool's errand. But the Court seems bound and determined to speak on the matter before state legislatures and state courts. If they do, of course, we will have a torrent of litigation arguing that the execution of someone determined to be not mentally retarded under a state's definition is now a "constitutionally intolerable event." (Funny how the release of someone from death row by a willful federal habeas court is never ever called that--even though it's far more constitutionally intolerable than some murderer who might be retarded finding himself on the the business end of the "big jab.)

I do take issue with one part of Kent's post. He writes: "For the mental retardation exclusion, however, the court has attempted to draw a bright line in dry sand. Intellectual disability is a continuum, and for anyone close to the line there will always be room for disagreement among experts."

Expert opinion isn't necessarily all its cracked up to be. Experts, of course, may be unanimous, but sometimes the common sense of a factfinder pushes its way through. Supposedly a guy who can pass advancement exams in the US Navy is retarded--according to the experts (and patently biased judges like Rosemary Barkett). Unless Georgia loses its nerve, justice will be meted out to Warren Hill.

It is more than a matter of definition. For the first prong of the definition of retardation, for example, there is general agreement that the threshold is two standard deviations below the mean, which in IQ score terms is 70 or below.

The disputes come when the defense wants to fudge these numbers higher in various ways. The main issue is Hill is whether the "standard error of measurement" should be thrown in so as to find a person retarded up to a test score of 70. (The answer is no, for reasons I will explain in my brief.) Then there is the notorious "Flynn effect," a thesis not accepted as a score adjustment in any other context but this one.

If the Supreme Court gets into issues like these and declares them to be federal constitutional mandates, we will have a long stretch of litigation as the high court resolves one issue after another, never reaching the end. We've been there and done that with sentencing procedure, and we don't need to do it again with retardation procedure.

I look forward to reading the briefs, especially Kent's.

FWIW, I don't see the slippery slope of unending Supreme Court litigation if the Court adopts a jury instruction that is to be given in every capital prosecution where the defendant asserts that he/she is "mentally retarded."

The instruction could state something along these lines: "You must decide if the defendant is mentally retarded. It is the prosecution's burden to establish beyond a reasonable doubt that the defendant is not mentally retarded. (Or?, It is the defendant's burden to establish by a preponderance of the evidence that he is mentally retarded.) A person is not 'mentally retarded' unless the evidence establishes the following: first prong, ... etc."

The jury will then have a nationally applicable standard to apply to the particular facts of the case. The prosecution and defense can then call their experts to testify whether or not the defendant meets that standard. Ultimately, it is the jury's call.

Why wouldn't this resolve the post-Atkins problem of state-by-state definitions and procedures, without causing an endless stream of future litigation in the Court?

Once again, I may be missing something. And I will have to wait to read all the briefs to have a better grasp of the issues.

You don't see the possibility of unending litigation? Well, first of all, what you propose would create two standards for many states--so you'd have that source of litigation. And remember, Atkins gave the states the green light to define mental retardation--so the Supreme Court would be pulling the rug out from underneath states (and victims' families--funny how people who make suggestions like yours never seem to care about their interests).

But putting that aside--your suggestion clearly intrudes on states' power to determine procedure. Last I checked, jury instructions weren't obtainable simply because a criminal defendant asserted something. There has to be evidence, and states certainly have the right to demand that defendants pass a certain evidentiary threshold before they get a jury instruction. Additionally, states get the right to bar some evidence based on factual predicates. Rape shield laws bar probative evidence with respect to guilt/innocence (which is, ipso facto, more important than whether a murderer gets the death sentence), so why can't states bar mental retardation claims if certain factual predicates are met, e.g., a high IQ score.

And putting that aside--your "it's the jury's call" is demonstrably false given the reality of federal habeas proceedings. Just take a look at the Warren Hill case. You may not like the state rule of procedure, but the reality is that the state of Georgia had a habeas judgment in its favor, yet federal courts saw fit to jerk the state around by giving it one last look-see. And read Rosemary Barkett's dissent--it's indefensible, but how many federal judges would rule the same way? A lot.

You give away the game when you say "the post-Atkins problem." What problem is there? What problem is crying out for a solution. None, unless you want to inflict more pain on victims' families

Federalist, I respect your opinion and your intellect. But your suggestion that I don't care about the interests of victims' families is offensive. FWIW, I spent many, many years fighting in court for the rights of victims and their families. I would venture to guess, that I have devoted far more time and energy on their behalf than 99% of Americans, including you?

The point I am making is simply a legal, logical one: When the Court decided Atkins, it should have defined "mental retardation." Despite claims of "states' rights," it was irresponsible for the Court to go half-way (i.e., preclude capital punishment if the accused is "mentally retarded," and fail to define that term). The Court has created the specter of unending federal habeas proceedings by death row inmates who alleged that they were "mentally retarded," and were deemed not be so because of state definitions that might prove to be at odds with the Court's (decade-long belated) forthcoming definition.

Kennedy's short-sighted, "let the states sort it out," jurisprudence is not an example of respecting federalisim, but, as I said, irresponsible constitutional adjudication.

"But your suggestion that I don't care about the interests of victims' families is offensive."

Offensive? Your posts have this idee-fixe that somehow, to the exclusion of all other considerations, the Court must set a national standard for MR. One of the other considerations is victims' families, many of whom would be tormented with endless litigation brought about by your proposal. (Of course, earlier on, you had dismissed that possibility.) So I don't think that my comment was out of line, particularly since I raised the issue of harm to victims' families upthread.

Your posts also have this very annoying quality. You have this faux earnestness about just wanting to be true to the Constitution, but you consistently ignore issues like states' settled expectations and the institutional limitations of the Court--which are clearly part of our Constitutional system. Moreover, you have no answer for the basic question of why this is all necessary. What pressing problems demand the Court's answer?

Finally, you studiously ignore (all the while professing this earnest desire to set the Constitution right) the power of states to deal with the procedural aspects of admitting evidence. You sweep that away with your, "Well, if the criminal asserts it, it goes to the jury." I wasn't aware that state rules of criminal procedure could be so lightly tossed aside because you're upset that different states have different rules with respect to an inherently subjective determination.

Maybe the Court ought to deal with a standard definition of insanity. Last I checked, there wasn't a national standard on that.

"Last I checked, there wasn't a national standard on that."

"[R]ational understanding of the reason for the execution." (Panetti v. Quarterman, 127 S.Ct. 2842,2845 (2007).)

FWIW, and without taking a position on whether it is morally wrong or right to do so, at this juncture, I believe there will be five votes in Hall to constitutionalize the definition of "mental retardation."

As Paul says, there is a national standard for insanity for the purpose of execution. As Federalist says, there is no national standard for insanity for the purpose of a not-guilty-by-reason-of-insanity verdict at trial.

That's enough, guys. We welcome frank exchange of views here, but this thread has deteriorated.

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