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May 27, 2014

Will Hall have import or impact other then when states seek to execute the possibly disabled?

Hall is a very big deal for the administration of capital punishment (opinion here, basics here), especially for those states with lots of murderers on death row and/or for those states that have been applying Atkins in restrictive ways.   Nevertheless, while a big round of new Atkins/Hall litigation is sure to churn in a number of states in the months and years ahead, in the end the fate of probably only a few dozen capital defendants will be significantly impacted by the holding in Hall.

But, of course, the dicta and direction of the Supreme Court's Eighth Amendment work in Hall could be a big deal in lots of other setting if lower courts conclude that the import and impact of this ruling should extend beyond capital cases involving intellectionally challenged defendants.  Here is a sampling of some (mostly new) Eighth Amendment language from the majority opinion in Hall that I could envision having some bite in some other settings:

The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the Nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force....

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....

[A]ggregate numbers are not the only considera­tions bearing on a determination of consensus. Consistency of the direction of change is also relevant.... The rejection of the strict 70 cutoff in the vast majority of States and the “consistency in the trend,” Roper, supra, at 567, toward recognizing the SEM provide strong evi­dence of consensus that our society does not regard this strict cutoff as proper or humane....

The actions of the States and the precedents of this Court give us essential instruction, but the inquiry must go further. The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. That exercise of independent judgment is the Court’s judicial duty....

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.

As these quotes highlight, the majority opinion per Justice Kennedy in Hall makes much of the "Eighth Amendment’s protection of dignity." (For those into counts, the term dignity is used nine times in Justice Kennedy's majority opinion, while the term is not used even once in Justice Alito's dissent.) Needless to say, I can identify a number of non-capital punishments that states and the federal government have been known to experiment with that seem to "deny the basic dignity the Constitu­tion protects" (such as LWOP for non-violent offenders). I am hopeful that not only the Supreme Court but also lower courts continue to be open to arguments that it is not only some capital punishment provisions that can and sometimes do "contravene our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world."

Today's posts on Hall:

May 27, 2014 at 12:42 PM | Permalink


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The use of the word "dignity" by Justice Kennedy echoes the Catholic Church's emphasis on the "dignity of the human person" as a core precept of Catholic Social teaching. I am not Catholic, but six of the Justices (Alito, Kennedy, Roberts, Scalia, Sotomayor, and Thomas) are. The word "dignity" when associated with life and death decisions has a special power to Catholics.

Posted by: Mark Osler | May 27, 2014 12:58:21 PM

It is notable that "dignity" is a concern for Kennedy in various respects, including in the area of gay rights. Justice Brennan, a Catholic, also used the word "dignity."

But, in the 8A context, the term has a long history. Trop v. Dulles:

"The basic concept underlying the Eighth Amendment is nothing less than the dignity of man."

Written by a Methodist (h/t Wiki). The social justice traditions of Catholicism is notable but 'dignity' has a broader reach too.

Posted by: Joe | May 27, 2014 1:33:38 PM

The Court also uses dignity in Skinner v. Oklahoma:

"There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority -- even those who have been guilty of what the majority define as crimes."

Another reach for this opinion might be the use of the Static99 number* as the sole basis for civil commitment. Everyone wants to protect any future Jessica Lunsfords, but we need not sacrifice our Constitution to do so.

* Static-99R risk estimates wildly unstable, developers admit

Posted by: George | May 27, 2014 2:03:43 PM

"The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. That exercise of independent judgment is the Court’s judicial duty...."

The Constitution does NOT give to the court that independent judgement. That is a power which the court has taken on to themselves and in which their own weakness the people have not taken back. Phrase like "human dignity" are nothing more than the tyranny of reason used to cover up the tyranny on man. There is nothing eternal, normal, or even natural about this so-called dignity. It as much as fantasy as elfs and orcs.

In the end all these types of decision do is strengthen the case for either abolishing the court or imposing term limits.

Posted by: Daniel | May 27, 2014 3:17:52 PM

James Madison on Bill of Rights:

"If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

I think he was right on this point. Life tenure, e.g., is there in part to provide independence of judgment here. "Human dignity" is a perfectly fair way to discuss the values behind the 8A & why 'cruelty' is a problem. History can be cited here rather easily.

"Tyranny"? I think not.

Posted by: Joe | May 27, 2014 3:43:52 PM

Daniel, are you saying SCOTUS should have left Oklahoma alone?

In Reckless Hands: Skinner v. Oklahoma and the Near-Triumph of American Eugenics

In the 1920s and 1930s, thousands of men and women were sterilized at asylums and prisons across America. Believing that criminality and mental illness were inherited, state legislatures passed laws calling for the sterilization of “habitual criminals” and the “feebleminded.” But in 1936, inmates at Oklahoma’s McAlester prison refused to cooperate; a man named Jack Skinner was the first to come to trial. A colorful and heroic cast of characters—from the inmates themselves to their devoted, self-taught lawyer—would fight the case all the way to the U.S. Supreme Court. Only after Americans learned the extent of another large-scale eugenics project—in Nazi Germany—would the inmates triumph. Combining engrossing narrative with sharp legal analysis, Victoria F. Nourse explains the consequences of this landmark decision, still vital today—and reveals the stories of these forgotten men and women who fought for human dignity and the basic right to have a family.

Posted by: George | May 27, 2014 5:05:35 PM

Yes. I also think that Buck vs Bell was correctly decided. I would have thought it clear by know that I am big fan of judicial restraint as a matter of legal philosophy. Perhaps my own favorite legal quote is Holmes statement that "It has given great pleasure to uphold laws that I dislike because it illustrates the distinction between what the Constitution would permit and I would forbid." My own view is the court today is nothing more than a shadow legislature run by a bunch of elitist oligarchs who seek to slam their own demented version of reality on to a resistive populace. I think this is true regardless of whether there are specific decision where I agree with SCOTUS--for example, I very much enjoyed the smack down that the State of Illinois got today--and when I do not such as in this opinion. I probably tend to articulate my views on judicial restraint more vocally when I disagree, as here, but it remains true even when I agree. SCOTUS as an institution is totally out of control and needs to be reigned in, harshly if necessary.

Will restraining SCOTUS have negative effects even on programs or policies I happen to value? Yes. But in the long run what is happening is fundamentally destructive to the basic fabric of our democracy--if it can even be called that anymore. And I value democracy as an idea and as an ideal even more than I value any particular instantiation of it in culture or history.

Posted by: Daniel | May 27, 2014 7:51:23 PM

Anyway, on topic, others have pointed out that "dignity" in Eighth Amendment jurisprudence is nothing new. However, it's also a very Kennedy word. I believed he used it quite a bit in Windsor as well.

Posted by: Erik M | May 27, 2014 9:48:48 PM

Kennedy sure does like to swell the US Reports with drivel.

Posted by: federalist | May 27, 2014 11:08:15 PM

Just another arbitrary, ipse dixit pro-criminal decision from the Twilight Zone world of the morally reprehensible lawyer, imposing personal and religious beliefs on a besieged nation, at the point of a gun.

I have rebutted all mitigating factors as really aggravating factors in the past.

I pray that a mentally retarded released prisoner personally attack each of these lawyers on the Supreme Court. I pray, the Justice not be killed but suffer an injury with a lifetime of agonizing pain. Let them share the pain of crime victims and of their family members.

It is time for the public to crush all Congressional members who protect this sick institution. It is now taboo to say anything critical. The Supreme Court is the dog of the Congress fetching the decisions the Congress does not want to face. The public can start by voting out all lawyers from the Congress. Nor is there any difference in the betrayal of the nation by political affiliation.

I would support the impeachment of Justice Kennedy for the treasonous, highly damaging nature of his votes, not for any pretextual personal corruption. Impeach for the stupidity of actual votes, the biggest crimes of these lawyers.

Other measures to improve the decsions of the Court:

1) Make the number an even number.

2) If the Court will legislate from the bench, let it have a legislative number such as 500 Justices. Appoint bums from the street. The quality and common sense of decisions can only improve.

3) Move it from Washington, DC to a central location such as Wichita, KS. Let Justices acclimate to the culture of the Midwest rather of the effete, all homosexual, rent seeking, left wing corrupt culture of Washington. The town is a freakin' Sodom and Gomorah.

4) By a new Judiciary Act, exclude all lawyers from the Supreme Court. If that cannot be done, exclude all from the First Tier of law schools. If that is not possible, exclude all graduates of the Ivy League. If not possible, exclude those from Harvard and Yale, America hating, treason indoctrination camps. One cannot graduate from these without wanting to change America into France, so it may be run by them. Outside of Prof. Berman, I have never met one I could hire to represent me in a parking beef. They are all idiots.

Posted by: Supremacy Claus | May 28, 2014 12:01:25 AM

The problem with the entire line of cases dealing with mental retardation and the death penalty is it suffers from some faulty premises. The rationale is that persons below a certain level of intelligence are less blameworthy than smarter folk and executing them does not deter other retarded people nor is it retributive because they are not as culpable.

This might hold true in scenarios regarding felony-murder (mentally retarded guy driving getaway car thinks his cohorts are just going to make a deposit at the bank) or being a fall guy in a conspiracy (i.e. it was all the mentally retarded guys idea). However, where the mentally retarded person is the perpetrator of a violent crime such as this, I cannot see how he is less culpable unless he is so retarded he does not know rape or murder is a bad thing. Seems unlikely.

All this decision does is further expand who may be considered mentally retarded and basically allows for more and more offenders to claim this defense. At this rate, the Unabomber may eventually be the only non-retarded prisoner in America.

Posted by: Matt Faler | May 28, 2014 6:17:49 AM

Mental disability should be a mitigating factor at sentencing and not a total exclusion. Hall's crimes that day resulted in a pregnant woman's and a deputy's death show planning beyond what a mentally infirm person could accomplish.

Posted by: DaveP | May 28, 2014 8:07:56 AM

One more problem with Atkins and progeny is the assertion that mentally retarded people should be excluded from the death penalty as their mental impairments increase the risk of being wrongfully convicted. This may be true but it has nothing to do with the culpability of a guilty offender. The potential for wrongful conviction of mentally impaired should be addressed with safeguards / procedures at the guilt phase (whatever those may be).

It is completely ludicrous to say well since there may be some wrongfully convicted mentally impaired people on death row but if we move them to LWOP it is ok and also we are going to categorically exempt putative mentally impaired offenders who complete horrible, violent crimes from the death penalty.

Posted by: Matt Faler | May 28, 2014 8:21:54 AM

The up to date definition of MR includes function. So Atkins was higher functioning than the Justices,at age 11 inthe drug business, and at the time of the murder, luring a competitor. Low score came from education deprivation. He hadsuperior social and earning skills. His IQ went up from his hanging out with lawyers. He is now death eligible.

Posted by: Supremacy Claus | May 28, 2014 11:21:51 AM

Lawyer question.

IQ = 60.

Functionis higher, a charismatic, innovative, savvy drug kingpin.

Does Hall make him death elijble? Can it do the opposite of its intenf?

Posted by: Supremacy Claus | May 28, 2014 12:20:18 PM

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