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November 22, 2013

"High Court May Clarify Rule on Impairment and Death Penalty"

Jello wallThe title of this post is the headline of this notable new New York Times piece which astutely recognizes that the Supreme Court may (or may not) clear up the application of its landmark 2002 Atkins Eighth Amendment ruling in a (long-overdue) follow-up Hall case being heard this Term.  Here are excerpts from the piece:

The United States Supreme Court’s ruling in a Florida death penalty case, in which an inmate argued that his intellectual disability made him exempt from execution, could help answer a decade-old question in Texas and other states about how to establish whether an inmate is too severely impaired to be subject to the death penalty.  “This is the courts trying to play catch-up with where the mental health community is going,” said Shannon Edmonds, director of governmental affairs at the Texas District and County Attorneys Association.

The Supreme Court last month agreed to hear the case of Freddie L. Hall, who was sentenced to death for the 1978 rape and murder of a pregnant woman and the fatal shooting of a police officer.  Oral arguments are expected in the spring.

Mr. Hall’s lawyers assert that his low I.Q., his deficits in adaptive behavior and a history of a lack of intellectual abilityrender him ineligible for execution. The high court is expected to decide whether Florida’s criteria for evaluating intellectual disability in death penalty cases — similar to those Texas uses — are adequate.

In Atkins v. Virginia (2002), the Supreme Court ruled that states could not execute the intellectually disabled.  The court found that a lack of brain functioning made them less culpable and more susceptible to flaws in the justice system that could lead to wrongful convictions.  But it was left up to states to determine how intellectual disability would be assessed.  Both Texas and Florida rely on a three-pronged evaluation that requires the defendant to have a low I.Q. and reduced adaptive function and to have exhibited both before the age of 18....

Both prosecutors and defense lawyers in Texas are looking to the high court for clarity when it comes to evaluating intellectual disability.  Texas lawmakers have been unable to pass a law creating a standard, so the existing criteria come from a 2004 decision from the state’s Court of Criminal Appeals in the case of Jose Garcia Briseño. The appeals court invoked, in part, an evaluation of Lennie from John Steinbeck’s 1937 novel “Of Mice and Men,” writing that "most Texas citizens would agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution.  But does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"

Defense lawyers have called the standards unscientific, and they drew national attention ahead of the 2012 execution of Marvin Wilson, whose lawyers argued that he was intellectually disabled.  Steinbeck’s son Thomas described the court’s reliance on the fictional character as “insulting, outrageous, ridiculous and profoundly tragic.”

Maurie Levin, a lawyer who represents several Texas death row inmates, said the Supreme Court’s decision could result in a more scientifically sound set of standards. “The acknowledgment or possibility that they will articulate a need for a respect for scientific principles has the potential for bringing states like Texas back in line,” Ms. Levin said.

For prosecutors, Mr. Edmonds said, guidance from the high court would help them confront cases involving mental health in which the science used to assess conditions is constantly changing. “It’s like trying to nail Jell-O to the wall,” Mr. Edmonds said. “You can never get a handle on it.”

November 22, 2013 at 10:51 AM | Permalink


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Perhaps I am too impaired to comprehend, but someone please try to explain to me how
someone can be
▼ sufficiently unimpaired to be found and convicted of pre-meditated, aggravated murder,▼
▼“too severely impaired to be subject to the death penalty”?▼

Posted by: Adamakis | Nov 22, 2013 11:57:43 AM

The USSC ruling will at best clarify things somewhat, reducing state discretion. This is from the nature of things and the tendencies of minimalism in this Court.

The reference to a fictional character should not really be seen as "insulting" by Steinbeck's son -- he should be honored that the courts seem to see so much wisdom in his father's writings. Fiction can do that -- dare I quote Jane Austen how fiction can inform us of the "most thorough knowledge of human nature." Shakespeare or the Bible surely are at times alluded to gain insights.

I don't think Lenny is being used as a sole test here -- that is, some sort of "Lenny Rule." It is a down to earth way to get a feeling of what ultimately will not be totally a scientific thing, but have a shade of art to as well. Like many legal tests, probably.

Posted by: Joe | Nov 22, 2013 1:59:16 PM

adamakis, because 1) the substantive standards differ, and 2) mental condition can deteriorate between the crime and the execution.

Posted by: HGD | Nov 22, 2013 2:06:06 PM

The SCOTUS justices might have a chance to clarify the legal situation but I doubt they will actually do so. The strategic ambiguity can only be of benefit to the forces on the court that would prefer to abolish the death penalty but know the political will is not present.

A categorical ruling from SCOTUS that execution is simply an unconstitutional sentence is the one item I could see the court making that would prompt a successful amendment effort. Either to re-instate execution directly or to somehow rein in the power of the courts.

But doing it in pieces and making it ever more difficult to actually carry out executions while not formally ruling it unconstitutional does not carry those risks.

Posted by: Soronel Haetir | Nov 22, 2013 5:00:04 PM

The case that referenced "Lenny" can be read here:


It cites him once as a colloquial example.

Posted by: Joe | Nov 22, 2013 6:39:11 PM

I think clarity is needed; I doubt the Court will attempt to provide that clarity. In thorny issues like the death penalty, they seem to want to outline a broad standard and let the lower courts figure it out. Then, only after everyone has tried every conceivable combination do they step in to figure out which is which. From the aspect of crafting legal rules, this is often a good practice. But, from the perspective of those involved in capital case litigation, it will literally cost lives.

Posted by: Erik M | Nov 22, 2013 8:44:37 PM

Welcome to the lawyer Twilight Zone, where everything known to us is upside down. The most dangerous murderers are the most protected by the lawyer.

The average IQ in the population is 100. The average in prison is 85, mostly due to the prevalence of under educated black people from the South. Each 15 points has been tweeked to represent a standard deviation. The test is built that way. So MR is 70 or below, or two standard deviations below the mean of 100. About 13% of people will be one standard deviation (SD) from the mean, 2% 2 SD, and 0.1% 3 SD. For example, Prof Berman is likely 3 standard deviations above the mean, or smarter than 999 of 1000 people. He started out that way. After law school, a severe crash took place, as it did with his fellow HLS grads on the Court. Now, people with real MR, and in special ed have more common sense.

That being said, a single SD in prison puts the prisoner in the MR camp, that is 13% + 2% + 0.1% (15% not 2.1% as in the general population) are not culpable according to the Supreme Court. These should be released immediately on a habeas cert.

While the lawyer IQ is plummeting, that of Japanese kids is shooting up. At this time, the average IQ in Japan went from 100 after WWII to 110 today. Thank the lawyer for crushing the ability of our schools to teach, and all striving by American kids who want to learn in the face of the relentless, disruptive fatherless, bastard thug, fully protected by the lawyer from facing the lash in Assembly. To deter.

Love the low academics, the high crime rates in our nation? Thank the lawyer.

At some point, the public will understand the betrayal of the lawyer. And full payback will visit that profession.

Posted by: Supremacy Claus | Nov 22, 2013 9:11:25 PM

I see that Joe has caved on the Missouri execution thread. I know, Joe, better to silently concede defeat than remove all doubt as to the bankruptcy of your position. It's a little less unseemly than Professor Berman's tactic of goalpost moving and endless pivots.

As for this case, and I havent read the briefs closely, I think the discreet issue is that Florida has apparently barred an MR finding if the subject tested over 70. Seems to me that this is basically an evidence exclusion issue--one that Florida courts are well-equipped to make.

Posted by: federalist | Nov 23, 2013 11:46:05 AM

I think that we should create "an experimental State"-- one where anything goes in the death penalty thing. Texas would be good. Start with no pardons from the Governor. I recall in the last election cycle Rick Perry did not have time to review a convict on death row and it became clear after his execution that the guy was innocent. It would have been clear to that schmuck in the Steinbeck novel that the guy was innocent. Then, Seoond, let em execute any mental defective person they want to. Third, employ any means they deem efficient to kill the convicts. Fourth, let the victims, or victim family memebers shoot the convicts. Fifth, televise the killing of the convicts. Sixth, outlaw the use of phony words to describe the killing. No more "execute", "expired", "lethal", "executioner", etc. The press release must say: the convict JoeBob, was killed by gunshots fired by humans into his head at six a.m. Eastern Standard Time and JoeBob died right then and there. His dead body was burned and the ashes placed in the trash can and hauled away by the garbage company. A prayer was said before and after by a Baptist Minister who was asked to participate in the firing squad but refused. The minister was paid a daily stipend for showing up. It is unknown if the person killed was allowed into Heaven or went to Hell in a handbasket."

Posted by: Liberty1st | Nov 23, 2013 12:40:46 PM

Lib. Not funny because of the murder victims you are disrespecting.

A wrongful death c laim should be allowed when an innocent is jailed or killevd.

Posted by: Supremacy Claus | Nov 23, 2013 3:21:16 PM

Why don't we execute the retarded? Is this some kind of namby-pamby soft-hearted "liberal" lets-all-sing-kumbaya criminal-coddling nonsense?

No. In fact the pro-execution folks should be working hard for this.

At some point video is going to surface showing a retarded fellow being led to the electric chair, farting and smiling and thanking his executioners for how well they take care of him. And then the carefully constructed picture of the wicked evil-doer will suffer, and support for execution will decline.

Posted by: Boffin | Nov 23, 2013 3:37:28 PM


Posted by: Adamakis | Nov 23, 2013 10:05:55 PM

Boffin: What were you doing at age 9? Did you have a lucrative drug business? Would you have lost $thousands by attending school, especially worthless special ed classes, where the tuition is 4 times that of regular class, but the education is a complete waste of time.

Could you lure a competitor into your car, and shoot him in the head? Do you have enough social skill to lie that way? Street wise, you are hopelessly retarded.

One thing the retarded, they do not learn well, so punishment does not work as well to deter the sociopaths among them. These are fearless, selfish, and presentist to the extreme. They need to be eradicated as soon as possible, after the lawyer hierarchy protecting these vicious predators has been arrested, tried and eradicated.

Posted by: Supremacy Claus | Nov 23, 2013 10:10:16 PM

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