Thursday, May 29, 2014

Intellectual Disability and the Death Penalty

SCOTUS Extends Curbs on Death Penalty and Retardation:

The Supreme Court on Tuesday continued a trend to limit capital punishment, ruling that Florida’s I.Q. score cutoff was too rigid to decide which mentally disabled individuals must be spared the death penalty.

“Florida seeks to execute a man because he scored a 71 instead of 70 on an I.Q. test,” Justice Anthony M. Kennedy wrote for the majority in a 5-to-4 decision.

Justice Kennedy was joined by the court’s four-member liberal wing, a recurring coalition in cases concerning harsh punishments.

When the court barred the execution of people with mental disabilities in 2002 in Atkins v. Virginia, it largely let the states determine who qualified. Tuesday’s decision, Justice Samuel A. Alito Jr. wrote for the four dissenters, represented a “sea change” in the court’s approach.

The ruling will affect not only Florida, which has the nation’s second-largest death row after California, but also as many as eight other states by Justice Kennedy’s count, including Alabama and Virginia. 
For students who may remember, this all goes back to Trop v. Dulles (1958), "evolving standards of decency," and counting states. The majority concluded that 41 states did not use IQ tests solely to determine whether an inmate should be executed. The dissenters concluded the majority was using fuzzy math (from Alito's dissent).
Attempting to circumvent these statistics, the Court includes in its count the 19 States that never impose the death penalty, but this maneuver cannot be justified. he fact that a State has abolished the death penalty says nothing about how that State would resolve the evidentiary problem of identifying defendants who are intellectually disabled.
This is the same debate they've had since Atkins in 2002, when Kennedy et al began to add non-death penalty states to states that had the death penalty but may have refused to apply it to certain categories of defendants (the intellectually disabled, juveniles, child rapists, etc.) to come up with "majorities" of states that have done away with certain kinds of punishments, thus indicating cruel and unusual.

Conservatives have long had a beef with the "Trop test," and the idea of a living Constitution, but Alito's dismissal of scientific evidence is more troubling.
I cannot follow the Court’s logic. Under our modern Eighth Amendment cases, what counts are our society’s standards—which is to say, the standards of the American people—not the standards of professional associations, which at best represent the views of a small professional elite.
Apparently, he's either ignoring or hasn't read the other parts of the Trop test, which clearly allow for scientific evidence to be taken into account when deciding whether a punishment is cruel and unusual (along with world opinion and action, anathema to conservatives). From Warren's opinion "the words of the 8th amendment are not precise and their scope not static."

I also find it troubling that Alito cites Penry v. Lynaugh (1989) over and over in his dissent, which was done away with in Atkins over 12 years ago. The regressive analysis suggests that "evolving standards of decency" stopped evolving back in the days when we were whacking juveniles and the mentally retarded in our society.

Anyway, it's been predicted since Atkins that the court would eventually have to come back and determine a more "bright line" for states to follow when it comes to executing the intellectually disabled, and that's precisely what the Hall decision of yesterday has done (from Kennedy's opinion):
No legitimate penological purpose is served by executing a person with intellectual disability. To do so contravenes the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being. “[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.” Kennedy v. Louisiana , 554 U. S. 407, 420 (2008). Rehabilitation, it is evident, is not an applicable rationale for the death penalty. As for deterrence, those with intellectual disability are, by reason of their condition, likely unable to make the calculated judgment s that are the premise for the deterrence rationale. They have a “diminished ability” to “process information, to learn from experience, to en­ gage in logical reasoning, or to control impulses . . . [which] make[s] it less likely that they can process the information of the possibility of execution as a penalty
and, as a result, control their conduct based upon that information.” Atkins , 536 U. S., at 320. Retributive val­ues are also ill-served by executing those with intellectual disability. The diminished capacity of the intellectually disabled lessens moral culpability and hence the retribu­tive value of the punishment. 

The professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range. See D. Wechsler, The Measurement of Adult Intel­ ligence 133 (3d ed. 1944) (reporting the range of error on an early IQ test). Each IQ test has a “standard error of measurement,” ibid. , often referred to by the abbreviation “SEM.”
Can I just pause, as a sociologist, to say how happy I am part of this debate centered on something as common (in my work) as standard error of measurement?

The majority goes on to make its case in a very scientific manner, and thus fulfills the Trop test regarding scientific and intellectual evidence of the constitutionality of a punishment.

But I'll let Kennedy's words summarize this issue for me:
The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for  experimentation, but those experiments may not deny the basic dignity the Constitu­tion protects.
The case is Hall v. Florida (2014).

Cross posted to: The Cranky Sociologists

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