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Expanding the Definition of Retardation

Today, the U.S. Supreme Court, 5-3, took a step toward forcing states to consider a broader group of people to be intellectually disabled (formerly called mentally retarded) and thus exempt from capital punishment regardless of how many or how heinous their crimes and regardless of how little they are over the fuzzy and shifting line between qualifying for the diagnosis and being just a little brighter.  CJLF wrote an amicus brief in this case supporting Texas.

It was no surprise in the case of Moore v. Texas that the high court would disapprove of the Texas Court of Criminal Appeals' home-brewed list of seven factors, the Briseno factors.  The court was unanimous on that point.  I was pleased to see that they did not endorse the myth that the factors are based on Steinbeck's Lennie.  Maybe footnote 3 of our brief had an effect.

The more critical question was whether private organizations with pro-defendant agendas (including the American Psychiatric Association and the Association on Intellectual and Developmental Disabilities) have the power to amend the Eighth Amendment so that states must follow their latest pronouncements, rather than their previous pronouncements, in deciding who qualifies for the no-matter-what exemption.  On this essential point the Court hands us a bowl of mush, and Chief Justice Roberts, in dissent, properly takes the majority to task for it.

A second problem with the Court's approach is the lack of guidance it offers to States seeking to enforce the holding of Atkins. Recognizing that we have, in the very recent past, held that "'the views of medical experts' do not 'dictate' a court's intellectual-disability determination," the Court assures us that it is not requiring adherence "to everything stated in the latest medical guide," ante, at 9- 10 (quoting Hall, 572 U. S., at ___ (slip op., at 19)); States have "some flexibility" but cannot "disregard" medical standards. Ante, at 10, 17. Neither the Court's articulation of this standard nor its application sheds any light on what it means.
The whole reason for having a Supreme Court in the first place is to establish a clear rule of law for all the other courts of the nation to follow.  The high court's precedents may not be right in the abstract, but they are "right" by operational definition.  "We are not final because we are infallible, but we are infallible because we are final," as Justice Jackson famously said. 

What should a state supreme court do now if the DSM-IV definition of "retardation" is written into its statute, but the defendant claims the DSM-5 definition is now required as a matter of federal constitutional law under Moore?  A court applying a statutory definition cannot simply "consider" the DSM-5.  A statute must be obeyed unless it is unconstitutional.  Is a statute codifying the DSM-IV standard, constitutional when it was enacted, now unconstitutional because a bunch of politicized psychiatrists, motivated to minimize the number of death sentences, pronounces the definition to have changed? 

Today, the Supreme Court said, "Maybe, maybe not.  You have to guess."  That is not why we have a Supreme Court.  This is an institutional failure.


The supreme court in my state has repeatedly referred to the DSM as an "evolving," "imperfect," and "political" document. An expert witness I recently worked with (a psychologist) referred to the DSM as nothing more than a way for the American Psychiatric Association to make money, since the ICD-10 makes the DSM unnecessary. Quite frankly, we'd probably be better off with the ICD-10 - at least it has worldwide recognition (and, off-topic, it has a much more sensible definition of what constitutes pedophilia than the DSM does).

What a mess.

I used to use the latest version of the DSM in cross-examining defense mental state "experts." Its diagnostic criteria were actually quite helpful to the prosecution in this endeavor.

I believe the Court has provided enough clarity that if states want to ensure that their capital case intellectual disability criteria can withstand constitutional scrutiny they should incorporate the DSM-5 criteria into their statutes or, at a minimum, into their jury instructions. And they should ensure that their statutes/instructions are in sync with any "evolving" DSM standards.

With respect to the DSM having a pro-defendant bent, as noted above, I haven't found that to be the case. But, to the extent this is a potential problem with respect to the definition of intellectual disability, I believe that psychiatric experts who don't have a pro-defendant agenda (and there many as I used them to support the prosecution during trial) can provide input before the next version of the DSM is issued.

In addition, even if the DSM criteria (as drafted by pro-defendant psychs) are the federal constitutional guidepost, there is enough wiggle room in those criteria -- including the definition of intellectual disability -- that prosecutors will easily be able to obtain testimony from highly qualified psychs that the defendant doesn't meet the DSM definition of intellectual disability.

Bottom line: The Court has for all practical purposes simply approved of a scenario (like so many others in the case of criminal cases, especially where the defendant's mental state is in issue) that will involve a battle of the experts -- a credibility determination to be resolved by the trier of fact.

It used to be said among mental health experts that the DSM sacrificed validity for reliability. After the DSM5 field trials we learned that reliability was also sacrificed, but for nothing.

All of this confusion was completely foreseeable when Atkins was handed down. To say that a punishment is forbidden for a class of defendants who are classified by an evolving standard is an invitation to uncertainty.

This case shows that the Supreme Court has become a bad joke. And who is to say that this sort of nonsense doesn't leak out into other areas of the law?

States should defy the Court on this. When the Supreme Court just makes up mush, then there is no duty to follow it. It's all in the realm power-judging, and the problem with power-judging is that other actors in our political system have power.

Sorry, I'm not jumping on that bandwagon.

Gorsuch plus one more equally solid pick, and we will be headed in the right direction again.

Can you articulate clear principles for distinguishing 4A and 5A and 6A "mush" from 8A "mush" federalist? Concerns about rules being made up by SCOTUS to limit state powers have always struck me as being even more trenchant with respect to police practices than to punishment practices. Do you endorse states ignoring police practice constitutional rulings they view as "mush"?

Doug two points:

(1) that there is mush in other areas of jurisprudence doesn't excuse it here.

(2) Atkins said that the states got to define MR (much like insanity), now the states have to continuously update the standards . . . .

My original criticism of Atkins was that these guys constitutionalized an IQ score. That was bad enough--but now we constitutionalize the ever evolving pronouncements of a group of docs?

Hall was a joke--what are the odds of a guy getting an 80 and a 79 on an IQ test and being MR (if the standard is 70)--pretty slim, but the Court reached out and decided that case. But the Court blew off Pa's right to use the fugitive disentitlement doctrine.

Whatever you want to call it, this isn't law. This is raw naked power in the cause of virtue-signaling (damn, of course, the victims who have to go through this endless game of Mother, may I?). Well, Doug, once we are in the realm of power judging (I hope you get the reference.), who knows where it ends, and that's a hell of a price to pay for being stylish (another reference I hope you get.)

Other actors in our political system have power too, and if push ever comes to shove and the federal courts lose, we've lost a lot. And given some of the nonsense coming out of them, they deserve to lose.

Intellectual disability is not a self-defining concept. There is nothing to prevent the APA from defining it as an IQ of 99 or lower. How much deference does the law want to give to science?

Deference to science is one thing but deference to a self-serving, agenda-driven, fuzzy-thinking organization is quite another.

That's the problem though MJS, science never exists apart from the scientists.

I understand your concerns, federalist, and I do not dispute that states eager for a robust death penalty face many Eight Amendment headaches. But you seem to posit that it would be legitimate and wise for a state to just defy SCOTUS rulings like Moore. I am eager to better understand the basis and any limits of your call for state defiance. Is it limited to capital rulings a state dislikes (Kennedy v LA comes to mind)? All Eight Amendment rulings (Graham)? Criminal cases of all sorts (Miranda, Griswold, Citizens United)? Any ruling that is new or novel or highly contested (Roe, Heller, Obergerfeld)?

Saying a ruling stinks, is wrong, should be reversed, reflects bias etc all are common and understandable ways to express disagreement with a ruling. Asserting that states should actively defy the ruling seems like a response of a different character, and I am trying to understand and imagine where such an assertion might take us. If you do not wish to explain your defiance suggestion, so be it. But I am eager to hear more about you vision of how states should respond to decisions they dislike.

First of all, Doug, as you will note, I have put this in the realm of power--so, really, the answer is embedded in that characterization--it's what the states can get away with. It is my view that the federal judiciary has seriously overstepped its constitutional role. I don't think the polity is powerless against that.

Remember, judicial power relies on societal consensus and respect for the courts. That's not nromative--that's just reality. And part and parcel of that consensus is that the courts must be perceived as purely neutral arbiters of the law. Now, of course, there is always going to be "play in the joints" (to borrow from Rehnquist), and that's life. But it's hard to argue that the Supreme Court is a neutral arbiter of the law when it comes to the Eighth Amendment (and in other areas too, but I will stick to the Eighth Amendment). I say that this delegitimizes the Court, and tosses everything into the realm of raw power. Yes, that is scary--Citizens United (eminently rightly decided--really?, the First Amendment contemplates jail for political speech?), but the federal courts simply cannot expect losers like Texas here to roll over and play dead with this nonsense.

And I don't think you realize how close we may be to this.

But I've made all these points before. Perhaps you ought to ponder the other pernicious effects of "power-judging"(and that includes blowing off constitutional protections as well). Whether stated or not, federal courts have to fundamentally get that their power does, as a matter of reality, on the support of national government actors--so that is going to engrain an institutional bias towards decisions that back federal government power. And it will encourage federal government actors to push boundaries.

I'll give you a f'rinstance: remember the stunt the IRS tried to pull a few years back--intercepting refunds of people who were children of allegedly overpaid disability recipients? The overpayments (which were NEVER proved up other than government say-so) were often made 50 years prior. Does ANYONE think that a country governed by the rule of law would permit this? Of course not, and the federal court put a stop to this. But, and here's the but, does anyone think that federal courts would be super-aggressive in allowing those citizens who, let's face it, had their money criminally stolen from them to pursue offensive type remedies against these government actors?

And here I am to my next point--federal courts have drifted leftward, and the drift has not, in my opinion, been the result of neutral arbitration of the law. And left-wing demagogues (many in the legal profession) attack nn-conforming decisions ruthlessly, and that has an effect on outcomes. Why should conservatives simply stand by and allow this to happen? Why is it so wrong to question the power of federal courts and to take active steps to undermine that power (a la Barack Obama's DoJ in Texas or Barack Obama himself with the CU decision?).

I don't see judicial supremacy as a categorical imperative. And you tell me Doug, with respect to Frye/Lafler--have you ever seen a constitutional right with so little teeth? And what does that say about constitutional rights generally? Many of the same people who voted for Lafler/Frye also voted that a failure to adhere to a defendant's choice of counsel was subject to a balancing test, i.e., watered-down what is actually in the constitution.

I'd prefer to have the rights that I actually have (e.g., political speech) to be unfettered and protected by courts, not have a judiciary who will water down some of them in order to protect its outsized role in American governance.

By the by, I am sure you saw that Rockville, Maryland rape case---let's say that a right-wing demagogue chose to use that case to delegitimize Plyler v. Doe (the case that imposed on local taxpayers the duty to fund the education of illegals). I know I personally would have the wherewithal to do that. What if Donald Trump did? And what if Trump won such a hypothetical fight? Think he'd stop there? Think it wouldn't trigger others to take up the cudgel? Could Zavydas v. Davis sustain a withering full-court press?

"To say that a punishment is forbidden for a class of defendants who are classified by an evolving standard is an invitation to uncertainty."

Aside from the shifting sands of the relativist -- the latter portion of your thought -- why countenance two standards of justice: one for protected classes; another for the rest of us? Such is a summons for the very definition of partiality. Col 3:25

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