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December 7, 2013

"How should states decide if someone convicted of a crime has an intellectual disability, when the answer means life or death?"

The title of this post is the first sentence of this lengthy USA Today article headlined "Supreme Court to revisit death penalty for mentally disabled."  Here is more from an effective review of the challenging capital procedure issues now before SCOTUS:

In its 6-3 decision in Atkins v. Virginia, authored by Justice John Paul Stevens, the court prohibited states from executing anyone with "mental retardation."  Mental health professionals define it as substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or "street smarts," and evidence of the condition before age 18.  (Mental retardation is the term used in law, but most clinicians and The Associated Press refer to the condition as intellectual disability.)

After the decision, most states stuck with the three-pronged clinical definition, but Florida, Georgia, Mississippi and Texas set their own standards. Under Florida's law, if you have an IQ over 70, you're eligible for execution regardless of intellectual function or adaptive behavior.

Freddie Lee Hall, who has been on Florida's death row for more than 30 years and scored in the mid-70s on IQ tests, is arguing the state's standard amounts to unconstitutional punishment.  Most likely, the case won't result in a dramatic shift in national criminal justice policy, but will further clarify who should and should not be eligible for execution, said Ronald Tabak, an attorney who has represented multiple clients with intellectual disabilities and chairs the American Bar Association's death penalty committee....

The court's makeup has shifted since the 2002 Atkins decision.  But if the justices split along ideological lines, the vote could favor Hall, assuming that swing vote Justice Anthony Kennedy sides with Hall, as he did with Atkins in 2002.  Arguments are set for March 3.

Similar cases are percolating beyond Florida.  In Georgia, death row inmate Warren Hill is fighting execution based on substantial evidence that he is intellectually disabled. In Texas, where the courts use an anecdotal seven-part test largely based on the characteristics of the fictional character Lennie from John Steinbeck's novel "Of Mice and Men" to determine intellectual disability, multiple prisoners have been executed in recent years even when they've scored well below 70 on IQ tests.

Last year, Texas executed Marvin Wilson, who was convicted of murder in 1994, even though he had an IQ of 61.  In 2010, Virginia executed Teresa Lewis for her role in a murder-for-hire scheme, even though she had an IQ of 72 and her co-conspirators admitted Lewis did not plan the murder....

Still, the Atkins decision has had an impact on executions. At least 98 people have had their death sentence changed since 2002 by proving that they were intellectually disabled, according to data from the Death Penalty Information Center.  By their count, in the 18 years before the Atkins decision, at least 44 people who likely suffered from intellectual disabilities were executed.

December 7, 2013 at 03:10 PM | Permalink


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This "life or death" thing is so maudlin. The question is whether people should escape justice for an alleged intellectual disability.

Posted by: federalist | Dec 7, 2013 3:41:51 PM

That might have been the question before Atkins, but it's not the question anymore. The question now is whether states can avoid their constitutional obligation not to execute those with intellectual disabilities through unorthodox definitions of "mentally retarded"?

There are two components. The first is one of the integrity of Supreme Court decisions and whether states should be given complete deference in defining the term (even if it makes the Supreme Court's decision an empty letter). Assuming that's not the case, the second question is a technical one of creating working rules for carrying out Adkins. More specifically, whether Florida's method is reasonable.

That being said, whether members of the Court think Adkins was correctly decided will color how likely they are to find Florida's method reasonable.

Posted by: Erik M | Dec 7, 2013 5:27:51 PM

Erik, even with Atkins, that's the same question--this life or death thing isn't the only issue--killers have escaped death by puffing up an MR case and getting some judge to buy it.

From what I understand of the florida case, Florida basically says that if you score above 70, it's conclusive. How states aren't allowed to do that is beyond me--but "Death is different." covers over a lot of lousy reasoning.

Posted by: federalist | Dec 7, 2013 7:29:30 PM

Thou Shalt Not Kill An M.R.

Posted by: Liberty1st | Dec 7, 2013 8:48:33 PM

I propose the one prong Lawyer Dumbass Rule.

If the defendant showed more skill than a Supreme Court Justice would be capable of, he is not intellectually disabled (ID).

For example, run a drug business at age 9. Lure a competitor into a car, drive around and shoot him. Could a Justice do that? No. Defendant not ID.

The defendant is serving LWOP. He attains a board with a nail in it inside prison, and kills his annoying cellmate. Could a Justice do that? No. Defendant not ID.

By definition, people with ID do not learn well. So there is weak specific deterrence. Only incapacitation will work. ID would be an aggravating factor anywhere else than the upside down, Twilight Zone world of the lawyer dumbass. Or perhaps, it professional courtesy, where mental cripples on the Court seek to cut a break for mental cripples before them.

Posted by: Supremacy Claus | Dec 8, 2013 10:22:15 AM

federalist, he's only escaping justice if he isn't intellectually disabled. If he is, then the death penalty is considered an excessive punishment, which also isn't just.

Given that our justice system is one where it's better for 10 guilty men to go free than an innocent to suffer (and, in this context, I would argue excessive punishment falls under the same rule), you have to err on the side of the accused. This means the question is how to determine this most accurately while doing all possible to eliminate false negatives (in this case) of MR.

Posted by: Erik M | Dec 8, 2013 11:12:14 AM

"you have to err on the side of the accused."

Says who?

Georgia certainly does not. How much have we heard about a "constitutionally intolerable event"--well, I think that a federal court tossing a death sentence on flimsy MR evidence should qualify.

Posted by: federalist | Dec 8, 2013 11:20:02 AM

"Given that our justice system is one where it's better for 10 guilty men to go free than an innocent to suffer (and, in this context, I would argue excessive punishment falls under the same rule), you have to err on the side of the accused."

That idiocy was from from one of the worst catastrophes in legal history, William Blackstone. That Royalist toadie voted for the Stamp Act. He also condemned our beloved patriots to death in absentia.

Have anyone here ever wondered why the above idiocy is touted by the lawyer profession?


Because the guilty are lawyer clients, and their thousands of future victims are not. Letting 10 guilty men go free will generate 2000 serious crimes a year, a man made disaster, and require more government services.

How much would you pay to avoid getting pistol whipped and losing your ride to a carjacker? Say, $10,000. Then the value of those crimes is $20 million, compared to $500,000 to house them for a year. That covers direct damages. It does not cover collateral damages such as drops in real estate values. Those may amount to a $million each additional expense, each year after year.

Posted by: Supremacy Claus | Dec 8, 2013 4:34:08 PM

Would you prefer to err on the side of convicting the innocent?

Posted by: Erik M | Dec 8, 2013 8:20:26 PM

Erik M: When you say, stuff like that Gladstone line, you must disclose your conflict of interest in a footnote. "I make my living from the criminal, and am biased in his favor." That would be true whether in the defense or prosecution bar, or a judge.

Posted by: Supremacy Claus | Dec 9, 2013 6:51:34 AM

The mean is 100, the standard deviation is 15. MR at 70 is 2 standard deviations from the mean of 100. If the mean in prison is 85, MR starts at 55 or below for that population. If you come from the family of Prof. Berman and everyone's IQ is 175 (pre-law school), and one has an IQ of 100, there has been brain damage sand is less culpable.

Apologies in advance for the arithmetic on this lawsite.

Posted by: Supremacy Claus | Dec 9, 2013 12:24:46 PM

\\ Would you prefer to err on the side of convicting the innocent?
Erik M //

Would you prefer to thwart the conviction of the guilty because
a proven aggravated murderer has an "intellectual disability"?

Posted by: Adamakis | Dec 9, 2013 1:15:40 PM

"Would you prefer to err on the side of convicting the innocent?"

Were talking about the penalty phase here. By definition, the defendant has already been proved guilty beyond a reasonable doubt. I agree that we should err on the side of the "accused" -- Blackstone's better than 10 guilty go free and all that. But at this point in the proceedings the defendant is convicted, not merely accused.

What happens if the jury finds he is not retarded? He still gets to submit his intellectual deficiency (borderline intellectual functioning, the next level up) as a mitigating circumstance under Lockett/Penry. Is that so bad? The jury still gets to consider it for what it is worth and weigh it in the balance.

Posted by: Kent Scheidegger | Dec 9, 2013 8:02:27 PM

I sat down with a Pastor from a Christian denomination at breakfast this morning. He explained the Ten Commandments. I now agree with most of you on this blog that it is foolish to believe that the Sixth Commandment applies to criminals or the mentally retarded. So, I am changing my position. Take that lady who pushed the new husband off the cliff. Kill her. Push her off a cliff. People with life without parole. Kill em. Push em off cliffs. Without Cliff Notes. It is not efficient really to spend money to keep people alive so that they can just die in prison when they are old and infirm. Then, consider killing all prisoners with sentences of more than ten years. If we want some advice and consent on the issue we can look to what the Germans wisely did in the 1930s and 40s with all sorts of criminals and mentally deficient people. And even people of little faith or the wrong faith. Let us take logic to its logical conclusion. We do not have the time, the money or patience to put up with mental patients. Kill em all. If you have no liberty then you outta be dead. Better dead than Red.

Posted by: Liberty1st | Dec 10, 2013 7:15:21 AM

I was reading a book by William Shirer called The Berlin Diary. He got the heck out of Berlin and back to the States in December of 1940, about a year ahead of Pearl Harbor. In the Diary he recounts a lot of things the Germans were doing to mental incompetents. I.e. killing them. Our government knew of the Holocaust and its beginnings at the beginning. This is about the time that Joseph Kennedy was Ambassador to Great Britain and was holding Neville Chamberlain's umbrella as he caved into the Nazis. When I read the drivel coming out of the Kennedy foundations for Johnboy and Bobby I see none of this. So, in light of the posts on what to do with the mentally deficient, do we side with Joseph Kennedy and allow them all to be killed? One of the defenses posed by the Germans to this genocide at the Nuremberg Trials in 1946-47 was quotes from some Justice of the U.S. Supreme Court named Oliver Wendell Holmes who said that "Three generations of idiots are enough." I wonder what Justice Holmes would say today. Maybe it is fair to just kill these defendants who are mentally deficient or who have a mens rea that is more woman oriented than male oriented. Pushing hubbypoo over the cliff on the honeymoon is a bit much. Even with a full moon. She was a bit overweight. Three generations of fat people are enough.

Posted by: Liberty1st | Dec 10, 2013 8:11:27 AM

While we are on the subject of the notion of punishing the mentally deficient. What about short people? Randy Newman covered the topic in one of his songs.

"Short People"

Short People got no reason
Short People got no reason
Short People got no reason
To live

They got little hands
Little eyes
They walk around
Tellin' great big lies
They got little noses
And tiny little teeth
They wear platform shoes
On their nasty little feet

Well, I don't want no Short People
Don't want no Short People
Don't want no Short People
`Round here

Short People are just the same
As you and I
(A Fool Such As I)
All men are brothers
Until the day they die
(It's A Wonderful World)

Short People got nobody
Short People got nobody
Short People got nobody
To love

They got little baby legs
That stand so low
You got to pick 'em up
Just to say hello
They got little cars
That go beep, beep, beep
They got little voices
Goin' peep, peep, peep
They got grubby little fingers
And dirty little minds
They're gonna get you every time
Well, I don't want no Short People
Don't want no Short People
Don't want no Short People
'Round here

Posted by: Liberty1st | Dec 10, 2013 8:23:52 AM

I started thinking about Buck v. Bell and so I went to Wikipedia. Here is an excerpt from the 1927 case. Not much has changed since then really:

The ruling was written by Justice Oliver Wendell Holmes, Jr. In support of his argument that the interest of the states in a "pure" gene pool outweighed the interest of individuals in their bodily integrity, he argued:

“ We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. ”

Holmes concluded his argument by declaring that "Three generations of imbeciles are enough".[5] The sole dissenter in the court, Justice Pierce Butler, a devout Catholic,[6] did not write a dissenting opinion: the practice of a Justice's noting a dissent without opinion was much more common than it would be in the late 20th and early 21st centuries.

Of course I quoted Holmes wrongly when I invoked the word "idiots". He employs the word "imbecils". It is improper to this day to say "retard" or "idjit".

Posted by: Liberty1st | Dec 10, 2013 2:06:43 PM

Try reading "Inside the Third Reich" & "Bonhoeffer"

Posted by: Adamakis | Dec 10, 2013 2:25:20 PM

The Nazis murdered INNOCENT retarded and 'undesirable' people.
We're debating the execution of non-retarded CONVICTED AGGRAVATED MURDERERS,
who have questionable intellectual functioning.

Posted by: Adamakis | Dec 10, 2013 2:31:24 PM

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