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Getting Into the Weeds on Intellectual Disability

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There is a regular pattern in constitutional law.  The U.S. Supreme Court announces that the Constitution has magically sprouted a new rule, trumping the power of the people to enact laws through the democratic process in a way that it never did before.  Many people, perhaps most, agree with the rule in its simple form.  Ah, but life is not simple.  With every rule comes pesky little details about its boundaries in the gray zone and the means by which disputes on its application are resolved.  Since no one but the U.S. Supreme Court can authoritatively decide for the whole country what a federal constitution rule actually means, the high court is stuck with the details.

Should people with intellectual disability, formerly called mental retardation, be categorically exempt from capital punishment, regardless of how many or horrible their crimes?  I will assume for the sake of argument that the consensus of the American people would be "yes" for the moderately retarded and below.  I very much doubt that such a consensus would exist for the mildly retarded if people knew what that meant.  If fully informed, I think most people would agree with the 1989 rule of Penry v. Lynaugh that intellectual disability in that range should be considered as a mitigating factor to be weighed in the balance, not a trump card.

Even so, in Atkins v. Virginia in 2002, the Supreme Court extended the blanket prohibition to everyone diagnosable as retarded, but not to "borderline intellectual functioning," the next step up.  The fuzzy distinction between mildly retarded and borderline had been of little consequence while both were mitigating and neither was a trump card, but suddenly the distinction made a great difference.  A wave of death row inmates claiming to be retarded, a few of whom actually were, made Atkins claims.  How do we go about deciding them?  Does every one who makes the claim get a full-blown hearing?

Should a judge who receives an Atkins claim look to the record of a pre-Atkins sentencing and decide on the basis of that record alone, without giving the inmate an opportunity to submit any additional evidence, that he has no claim?  Of course not.  If you read only the question presented as phrased by lawyers for the inmate in Brumfield v. Cain, No. 13-1433, you might think that is what happened in that case.  Not really.
The oral argument in the Supreme Court was yesterday, March 30.  The transcript is here.  Lyle Denniston has this post at SCOTUSblog.

The legal issue the Court said it would decide is simple enough.  But, when that issue came up for argument, eight Justices who took an active part and two lawyers went back and forth for an hour, sometimes impatiently, trying to figure out just what happened in this Louisiana murder case that could lead to the execution of a man found by a federal judge to be mentally [sic, intellectually] disabled -- a category that normally would exempt him from the death penalty.
Louisiana has a correct rule.  An inmate sentenced before Atkins who wants a hearing after must make a threshold showing.  He doesn't have to prove his case at the doorstep, but he needs to show there is something there.  How the judge applied a correct rule in the particular case is not usually the kind of thing the Supreme Court gets into.  Such cases are called "fact-bound," and the Court generally declines to take up fact-bound cases.

This case may end up being a narrow and fact-specific decision picking through one particular record to decide what the trial judge actually did and whether he was correct on the facts of the case.  Then again, the Court could simply dump the case -- "dismissed as improvidently granted."

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