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December 4, 2014

"The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling"

The title of this post is the title of this notable and timely new paper by Scott Sundby now available via SSRN. Here is the abstract:

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty "disproportional" for certain types of defendants and crimes.  This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding.  In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated "evolving standards of decency."  This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making.

The Court thus articulated expressly for the first time what this Article calls the "unreliability principle:" if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed.  In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants.  And, unlike with the "evolving standards" analysis, the unreliability principle does not depend on whether a national consensus exists against the practice.

This Article identifies the six Atkins-Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional.  The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court's core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness.

December 4, 2014 at 04:21 PM | Permalink


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And although the unreliability principle was not directly at issue in Hall v. Florida, the case in which the Court struck down Florida's rule that Atkins could not apply unless a defendant had an IQ test of 70 or under, the Court expressly acknowledged "protect[ion] [of] the integrity of the trial process" as one of Atkins's key rationales. Moreover, the Hall opinion revolved around the idea that because Florida's "rigid rule of a hard cut-off of a 70 IQ ignored how medical professionals use and understand the role of IQ tests, the state Acreate[d] an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional. p 24

Fascinating paper. It is enlightening because we so often hear defense attorneys are solely responsible for the long capital punishment litigation, but it is clear that the executive and legislative are responsible for much of the arguing. Conservatives might claim that is because the court overruled the will of the people and legislated from the bench, but is that it? Do the majority of the people disagree with the Court's reasoning? Do the majority want people who cannot adequately defend themselves in court sentenced to death? Or has there been sly maneuvering around these SCOTUS opinions that resulted in prolonged litigation, such as the Florida IQ of 70 conflict?

Another way to pose the question is why do some want to execute people who cannot adequately defend themselves?

Posted by: George | Dec 4, 2014 8:33:58 PM

This article is from the Comic Neighborhood of the Twilight Zone. We have often proposed the phrase lawyer dumbass as a term of art. It means that intelligent, modern students are turned into people with less intelligence and common sense then students in Special Ed Life Skills Class, idiots dumber than idiots. So for example, my points are all from high school academic course. The lawyer? No idea what I am saying. Puzzled

First, the IQ test was developed as a predictor and tracker of school performance. How it came to be used as a measurement of culpability is wrongful. It is the most validated test in human history, with many thousands of studies, none for reliability of measurement for culpability. So the Supreme Court should hold a Daubert hearing and stop promoting garbage science. Reliability is a modest idea, just agreement between 2 rater at the same time, agreement by one rater over time. This is necessary but not sufficient to show validity, the ability to measure what one is trying to measure.

So Atkins survived in his meat grinder environment, and was part of a lucrative drug business from age 9. What were the Justices doing at age 9? He lured a competitor into a car, drove him and executed him. Could the Justices do that, with its advanced socials and soldierly skills? So Atkins was intelligent despite a low IQ score. If you are making $100's a day from childhood, school causes financial losses. Go to school, lose $hundreds. If you are not educated, the IQ properly drops. The Japanese IQ went from 100 after the War to now 110. One may not change the gene pool that quickly (more like 2000 years). The entire effect is likely from strenuous education.

According to a NYT, Atkins spent so much time with appellate lawyers, his vocabulary and language abilities have improved to such a point that he now qualifies for the death penalty.

I guess the lawyer dumbing down is not restricted to them only. Here is a question posed by a non-lawyer, why do some want to execute people who cannot adequately defend themselves? Strange question given the superior competence of Atkins. But also, the answer is self evident. The safety of the public, including staff, fellow prisoners, and visitors to prison. Job First, Job Last of the government.

I thank the Supreme Court for accidentally coming upon a new method of remediation of mental retardation. Instead of wasting time and massive costs on special ed, send all MR students to lawyers' office as one of the most important developments in the field of special ed.

Posted by: Supremacy Claus | Dec 5, 2014 1:30:42 AM

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