June 2, 2014
Private: High Court Still Fumbling Over Executions of Intellectually Disabled
Atkins v. Virginia, Frank Housh, Hall v. Florida, Justice Samuel Alito
by Frank Housh, owner of Housh Law Offices, PLLC, and chair of the ACS Western New York Lawyer Chapter. He participated in the preparation of the petition for a writ of certiorari in Johnson v. Texas, 509 US 350 (1993), a case related to the issue of the intellectual capacity of the defendant in a capital case.
The Supreme Court’s May 27 decision in Hall v. Florida makes clear that fundamental notions of human dignity and the validity of the scientific method axiomatic in developed nations of the 21st Century have found no purchase by the majority of the Court. As a nation which still executes its own, the United States remains a peculiar outlier in the international order; the fact that our constitutional jurisprudence still tinkers with the obsolete machinery of death drags down the rule of law below the minimum standards of the world community.
In 1989, a 5-4 Supreme Court in Atkins v. Virginia held that executing the “mentally retarded” was a violation of the Eighth Amendment. “Mentally retarded,” however, remained undefined in the decision. What followed was a macabre race to the bottom among the states, including Florida’s bright-line standard that funneled those capital defendants with an IQ of 69 or less to life without parole and those with a score of 70 and above to the gallows (Freddie Lee Hall scored a 71). Unfortunately, that race continues, as Hall does little to clarify the issue.
Hall had two holdings: first, the more palatable “intellectual disability” is the phrase of choice over “mental retardation;” second, IQ score alone cannot be the final and conclusive evidence of the defendant’s intellectual capacity because “experts in the field would consider other evidence” due to the presence of a “standard error measurement.” No further guidance was given as to what constitutes a constitutionally permissible scheme to determine the the minimum standard of intellectual function necessary to strap someone to a gurney and shoot poison into them until they die.
As an aside, it should be noted that like Atkins, Hall was a 5-4 decision. Writing for the dissent in Hall, Justice Alito found fault with the fact that the majority decision informed its evaluation of the Florida’s definition of mental retardation with the scientific consensus contained in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM), rather than a definition based on some sort of popular opinion. Justice Alito said:
Under our modern Eight Amendment cases, what counts are our society’s standards – which is to say, the standards of the American people – not the standards of the views of a small professional elite.
I would respectfully suggest that the reason the Court labors so unsuccessfully to find the appropriate constitutional rationale for executing the intellectually disabled is the fact that there isn’t one. No other civilized nation executes its own people and only Kyrgyzstan still executes the intellectually disabled. As long as we cast the light of scientific progress through an ideological lens, our Eighth Amendment jurisprudence will continue to decay, doomed to eternal error and trapped forever in a counterfeit calculus of death.