by J. Amy Dillard, Associate Professor of Law, University of Baltimore School of Law
Early next year, the Court will hear argument in Hall v. Florida, a case that many practitioners have awaited since 2002. That year, the Court issued its opinion in Atkins v. Virginia, wherein it held that “the mentally retarded should be categorically excluded from execution.” The 6-3 decision in Atkins marked the great divide between those on the Court who embrace the concept of evolving standards of decency and those who eschew itfor determining which defendants may be put to death and which should be categorically excluded. The Court declined to define the parameters of mental retardation and left that task to the states. Some state legislatures, like Florida, have adopted a constrained definition of mental retardation, relying heavily on an I.Q. of 70 as a bright line.
A fact often overlooked in Atkins is that the majority and Justice Scalia, in dissent, agreed that some people, due to their lack of cognitive capacity, should be excluded from the penalty of death. The majority reached its conclusion after a careful examination of the trends in state legislatures to exclude mentally-retarded defendants from execution. Justice Scalia reached his conclusion after several paragraphs of constitutional hermeneutics, whereby he ascertained that profoundly mentally-retarded defendants were excluded from execution at the time of the framing of the Constitution and its Eighth Amendment prohibition on cruel and unusual punishment. Where the majority and Justice Scalia were at odds was in defining which people fit into the category of defendants who should be categorically excluded from execution. But both the majority and Justice Scalia use the term “mental retardation” as a kind of marker to describe a group of people who must be excluded from the penalty of death.
In 2002, when the Court decided Atkins, the term “mentally retarded” had already fallen from favor among medical and educational professionals, who favored the term “intellectual disability” to describe a person with limited cognitive capacity and limited adaptive functioning. With the publication of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders in May 2013, the American Psychiatric Association has jettisoned the now-pejorative “mental retardation” and replaced it with “intellectual disability disorder,” a subset of neurocognitive disorders, which include dementia. The APA first embraced the term “mental retardation” in 1961, in an effort replace older, pejorative terms such as “idiocy.”
Not one to shy away from older, pejorative terms, Justice Scalia, in his Atkins dissent, employed the term “idiot” (and “lunatic,” and “imbecile”) with alacrity as he gave his readers a history lesson in the treatment of individuals with cognitive and adaptive impairments within the criminal justice system at the time of the framing of the Constitution and before. He quotes William Blackstone:“[D]ue to their incompetence, idiots were ‘excused from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses.’” He studied texts dating as far back as the mid-sixteenth century to develop his constrained his definition of idiots to those who were in the severe or profoundly mentally-retarded range, who have a total lack of reason and cannot count to twenty. He reached back to an 1834 trial and execution in Concord, New Hampshire to emphasize the distinction between idiots (“an utter destitution of every thing like reason”) and imbeciles (“some intellectual capacity, though infinitely less than is possessed by the great mass of mankind”). By the blunt axe of his historical reasoning, idiots should be spared and imbeciles should be executed.
The Court in Atkins took a more subtle, reasoned approach by examining the rationale for the categorical exemption from execution for the mentally retarded, though it made more than one passing reference to an IQ of 70 and below as one means of defining the group. The Court identifies two explicit reasons for excluding the mentally retarded from the penalty of death: lack of penological purpose in death and the risk of an unfair trial. Since 1980, the Court has demanded that capital juries determine whether a defendant demonstrates “a consciousness materially more ‘depraved’ than any other person guilty of murder.” In Atkins, the Court merely extended this rule to categorically exclude mentally-retarded defendants from death, due to rationale and cognitive deficiencies that left them less culpable than other defendants.
But it is the risk of an unfair trial rationale for which the Court offers more complex reasoning, one that cannot be reduced to an IQ score. The Court defines mentally-retarded defendants as those who face a special risk “that the death penalty will be imposed in spite of factors who call for a less severe penalty.” It sets a laundry list of concerns for these defendants – that they will be less able to give meaningful assistance to counsel, that they may make poor witnesses, and that their demeanor may create the unwarranted impression that they are not remorseful for their crimes. A critical reading of Atkins reveals that the Court made a connection between the mentally-retarded defendant’s diminished capacity to understand and process information, to communicate and to engage in logical reasoning with the defendant’s ability to help in the preparing of a meaningful defense.