Limitations on Capital Punishment: Diminished Capacity

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Limitations on Capital Punishment: Diminished Capacity.— The Court has grappled with several cases involving application of the death penalty to persons of diminished capacity. The first such case involved a defendant whose competency at the time of his offense, at trial, and at sentencing had not been questioned, but who subsequently developed a mental disorder. The Court held in Ford v. Wainwright168 that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of sanity at the time of execution must be determined in a proceeding satisfying the minimum requirements of due process.169 The Court noted that execution of the insane had been considered cruel and unusual at common law and at the time of adoption of the Bill of Rights, and continued to be so viewed. And, although no states purported to permit the execution of the insane, Florida and some others left the determination to the governor. Florida’s procedures, the Court held, violated due process because the decision was vested in the governor without the defendant’s having the opportunity to be heard, the governor’s decision being based on reports of three state-appointed psychiatrists.170

In Panetti v. Quarterman,171 the Court considered two of the issues raised, but not clearly answered, in Ford: what definition of insanity should be used in capital punishment cases, and what process must be afforded to the defendant to prove his incapacity. Although the court below had found that it was sufficient to establish competency that a defendant know that he is to be executed and the reason why, the Court in Panetti rejected these criteria, and sent the case back to the lower court for it to consider whether the defendant had a rational understanding of the reasons the state gave for an execution, and how that reflected on his competency.172 The Court also found that the failure of the state to provide the defendant an adequate opportunity to respond to the findings of two court-appointed mental health experts violated due process.173

In 1989, when first confronted with the issue of whether execution of the mentally retarded is constitutional, the Court found “insufficient evidence of a national consensus against executing mentally retarded people.”174 In 2002, however, the Court determined in Atkins v. Virginia175 that “much ha[d] changed” since 1989, that the practice had become “truly unusual,” and that it was “fair to say” that a “national consensus” had developed against it.176 In 1989, only two states and the Federal Government prohibited execution of the mentally retarded while allowing executions generally. By 2002, an additional 16 states had prohibited execution of the mentally retarded, and no states had reinstated the power. But the important element of consensus, the Court explained, was “not so much the number” of states that had acted, but instead “the consistency of the direction of change.”177 The Court’s “own evaluation of the issue” reinforced the consensus. Neither of the two generally recognized justifications for the death penalty—retribution and deterrence— applies with full force to mentally retarded offenders. Retribution necessarily depends on the culpability of the offender, yet mental retardation reduces culpability. Deterrence is premised on the ability of offenders to control their behavior, yet “the same cognitive and behavioral impairments that make these defendants less morally culpable . . . also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based on that information.”178

In Atkins, the Court wrote, “As was our approach in Ford v. Wainwright with regard to insanity, ‘we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’”179 In Schriro v. Smith, the Court again quoted this language, holding that “[t]he Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith’s mental retardation claim.”180 States, the Court added, are entitled to “adopt[ ] their own measures for adjudicating claims of mental retardation,” though “those measures might, in their application, be subject to constitutional challenge.”181

In Hall v. Florida,182 however, the Court limited the states’ ability to define intellectual disability by invalidating Florida’s “bright line” cutoff based on Intelligence Quotient (IQ) test scores. A Florida statute stated that anyone with an IQ above 70 was prohibited from offering additional evidence of mental disability and was thus subject to capital punishment.183 The Court invalidated this rigid standard, observing that “[i]ntellectual disability is a condition, not a number.”184 The majority found that, although IQ scores are helpful in determining mental capabilities, they are imprecise in nature and may only be used as a factor of analysis in death penalty cases.185 This reasoning was buttressed by a consensus of mental health professionals who concluded that an IQ test score should be read not as a single fixed number, but as a range.186

Building on Hall, in Moore v. Texas the Supreme Court rejected the standards used by Texas state courts to evaluate whether a death row inmate was intellectually disabled, concluding that the standards created an “unacceptable risk that persons with intellectual disability will be executed.”187 First, Justice Ginsburg, on behalf of the Court, held that a Texas court’s conclusion that a prisoner with an IQ score of 74 could be executed was “irreconcilable with Hall” because the state court had failed to consider standard errors that are inherent in assessing mental disability.188 Second, the Moore Court determined that Texas deviated from prevailing clinical standards respecting the assessment of a death row inmate’s intellectual capabilities by (1) emphasizing the petitioner’s perceived adaptive strengths and his behavior in prison;189 (2) dismissing several traumatic experiences from the petitioner’s past;190 and (3) requiring the petitioner to show that his adaptive deficits were not due to a personality disorder or a mental health issue.191 Third, the Court criticized the prevailing standard used in Texas courts for assessing intellectual disability in death penalty cases, which had favored the “‘consensus of Texas citizens’ on who ‘should be exempted from the death penalty,’” with regard to those with “mild” intellectual disabilities in the state’s capital system, concluding that those with even “mild” levels of intellectual disability could not be executed under Atkins.192 Finally, Moore rejected the Texas courts’ skepticism of professional standards for assessing intellectual disability, standards that the state courts had viewed as being “exceedingly subjective.”193 The Supreme Court instead held that “lay stereotypes” (and not established professional standards) on an individual’s intellectual capabilities should “spark skepticism.”194 As a result, following Hall and Moore, while the states retain “some flexibility” in enforcing Atkins, the medical community’s prevailing standards appear to “supply” a key constraint on the states in capital cases.195

The Court’s conclusion that execution of juveniles constitutes cruel and unusual punishment evolved in much the same manner. Initially, a closely divided Court invalidated one statutory scheme that permitted capital punishment to be imposed for crimes committed before age 16, but upheld other statutes authorizing capital punishment for crimes committed by 16- and 17-year-olds. Important to resolution of the first case was the fact that Oklahoma set no minimum age for capital punishment, but by separate provision allowed juveniles to be treated as adults for some purposes.196 Although four Justices favored a flat ruling that the Eighth Amendment barred the execution of anyone younger than 16 at the time of his offense, concurring Justice O’Connor found Oklahoma’s scheme defective as not having necessarily resulted from the special care and deliberation that must attend decisions to impose the death penalty. The following year Justice O’Connor again provided the decisive vote when the Court in Stanford v. Kentucky held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17. Like Oklahoma, neither Kentucky nor Missouri197 directly specified a minimum age for the death penalty. To Justice O’Connor, however, the critical difference was that there clearly was no national consensus forbidding imposition of capital punishment on 16- or 17-year-old murderers, whereas there was such a consensus against execution of 15-year-olds.198

Although the Court in Atkins v. Virginia contrasted the national consensus said to have developed against executing the mentally retarded with what it saw as a lack of consensus regarding execution of juvenile offenders over age 15,199 less than three years later the Court held that such a consensus had developed. The Court’s decision in Roper v. Simmons200 drew parallels with Atkins. A consensus had developed, the Court held, against the execution of juveniles who were age 16 or 17 when they committed their crimes. Since Stanford, five states had eliminated authority for executing juveniles, and no states that formerly prohibited it had reinstated the authority. In all, 30 states prohibited execution of juveniles: 12 that prohibited the death penalty altogether, and 18 that excluded juveniles from its reach. This meant that 20 states did not prohibit execution of juveniles, but the Court noted that only five of these states had actually executed juveniles since Stanford, and only three had done so in the 10 years immediately preceding Roper. Although the pace of change was slower than had been the case with execution of the mentally retarded, the consistent direction of change toward abolition was deemed more important.201

As in Atkins, the Court in Roper relied on its “own independent judgment” in addition to its finding of consensus among the states.202 Three general differences between juveniles and adults make juveniles less morally culpable for their actions. Because juveniles lack maturity and have an underdeveloped sense of responsibility, they often engage in “impetuous and ill-considered actions and decisions.” Juveniles are also more susceptible than adults to “negative influences” and peer pressure. Finally, the character of juveniles is not as well formed, and their personality traits are “more transitory, less fixed.”203 For these reasons, irresponsible conduct by juveniles is “not as morally reprehensible,” they have “a greater claim than adults to be forgiven,” and “a greater possibility exists that a minor’s character deficiencies will be reformed.”204 Because of the diminished culpability of juveniles, the penological objectives of retribution and deterrence do not provide adequate justification for imposition of the death penalty. The majority preferred a categorical rule over individualized assessment of each offender’s maturity, explaining that “[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.”205

The Roper Court found confirmation for its holding in “the overwhelming weight of international opinion against the juvenile death penalty.”206 Although “not controlling,” the rejection of the juvenile death penalty by other nations and by international authorities was “instructive,” as it had been in earlier cases, for Eighth Amendment interpretation.207

168 477 U.S. 399 (1986).

169 There was an opinion of the Court only on the first issue: that the Eighth Amendment creates a right not to be executed while insane. The Court’s opinion did not attempt to define insanity; Justice Powell’s concurring opinion would have held the prohibition applicable only for “those who are unaware of the punishment they are about to suffer and why they are to suffer it.” 477 U.S. at 422.

170 There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that “the ascertainment of a prisoner’s sanity . . . calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.” 477 U.S. at 411–12. Concurring Justice Powell thought that due process might be met by a proceeding “far less formal than a trial,” that the state “should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel.” Id. at 427. Concurring Justice O’Connor, joined by Justice White, emphasized Florida’s denial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or board, set forth the Court’s holding.

171 127 S. Ct. 2842 (2007).

172 127 S. Ct. at 2862. In Panetti, the defendant, despite apparent mental problems, was found to understand both his imminent execution and the fact that the State of Texas intended to execute him for having murdered his mother-in-law and father-in-law. It was argued, however, that defendant, suffering from delusions, believed that the stated reason for his execution was a “sham” and that the state wanted to execute him to “stop him from preaching.”

173 127 S. Ct. at 2858.

174 Penry v. Lynaugh, 492 U.S. 302, 335 (1989). Although unwilling to conclude that execution of a mentally retarded person is “categorically prohibited by the Eighth Amendment,” id. at 335, the Court noted that, because of the requirement of individualized consideration of culpability, a retarded defendant is entitled to an instruction that the jury may consider and give mitigating effect to evidence of retardation or a background of abuse. Id. at 328. See also Tennard v. Dretke, 542 U.S. 274 (2004) (evidence of low intelligence should be admissible for mitigating purposes without being screened on basis of severity of disability).

175 536 U.S. 304 (2002). Atkins was 6–3 decision by Justice Stevens.

176 536 U.S. at 314, 316.

177 536 U.S. at 315.

178 536 U.S. at 320. The Court also noted that reduced capacity both increases the risk of false confessions and reduces a defendant’s ability to assist counsel in making a persuasive showing of mitigation.

179 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986).

180 546 U.S. 6, 7 (2005) (per curiam).

181 546 U.S. at 7.

182 572 U.S. ___, No. 12–10882, slip op. (2014).

183 Fla. Stat. § 921.137.

184 Hall, slip op. at 21.

185 Id. Of those states that allow for the death penalty, a number of them do not have strict cut-offs for IQ scores. See, e.g., Cal. Penal Code § 1376 (West 2016); La. Code Crim. Proc. Ann. art. 905.5.1 (2016); Nev. Rev. Stat. § 174.098.7; Utah Code Ann. § 77–15a–102 (Lexis-Nexis 2016). Similarly, the U.S. Code does not set a strict IQ cutoff. See 18 U.S.C. § 3596(c) (2012).

186 This range, referred to as a “standard error or measurement” or “SEM,” is used by many states in evaluating the existence of intellectual disability. Hall, slip op. at 12.

187 See 581 U.S. ___, No. 15–797, slip op. at 2 (2017).

188 Id. at 10.

189 Id. at 12 (“[T]he medical community focuses the adaptive-functioning inquiry on adaptive deficits.”) (emphasis in original); see also id. at 13 (“Clinicians, however, caution against reliance on adaptive strengths developed in a controlled setting, as prison surely is.”) (internal citations and quotations omitted).

190 Id. at 13–14 (“Clinicians rely on such factors as cause to explore the prospect of intellectual disability further, not to counter the case for a disability determination.”).

191 Id. at 14 (“The existence of a personality disorder or mental-health issue, in short, is not evidence that a person does not also have intellectual disability.”) (internal citations and quotations omitted).

192 Id. at 15. In so concluding, the Court noted that “[m]ild levels of intellectual disability . . . nevertheless remain intellectual disabilities,” and “States may not execute anyone in the entire category of intellectually disabled offenders.” Id. (emphasis in original) (internal citations and quotations omitted).

193 See Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004).

194 See Moore, slip op. at 15.

195 Id. at 17.

196 Thompson v. Oklahoma, 487 U.S. 815 (1988).

197 Wilkins v. Missouri was decided along with Stanford.

198 Compare Thompson, 487 U.S. at 849 (O’Connor, J., concurring) (two-thirds of all state legislatures had concluded that no one should be executed for a crime committed at age 15, and no state had “unequivocally endorsed” a lower age limit) with Stanford, 492 U.S. at 370 (15 of 37 states permitting capital punishment decline to impose it on 16-year-old offenders; 12 decline to impose it on 17-year-old offenders).

199 536 U.S. at 314, n.18.

200 543 U.S. 551 (2005). The case was decided by 5–4 vote. Justice Kennedy wrote the Court’s opinion, and was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice O’Connor, who had joined the Court’s 6–3 majority in Atkins, wrote a dissenting opinion, as did Justice Scalia, who was joined by Chief Justice Rehnquist and Justice Thomas.

201 Dissenting in Roper, Justice O’Connor disputed the consistency of the trend, pointing out that since Stanford two states had passed laws reaffirming the permissibility of executing 16- and 17-year-old offenders. 543 U.S. at 596.

202 543 U.S. at 564. The Stanford Court had been split over the appropriate scope of inquiry in cruel and unusual punishment cases. Justice Scalia’s plurality would have focused almost exclusively on an assessment of what the state legislatures and Congress have done in setting an age limit for application of capital punishment. 492 U.S. at 377 (“A revised national consensus so broad, so clear and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved.”). The Stanford dissenters would have broadened this inquiry with a proportionality review that considers the defendant’s culpability as one aspect of the gravity of the offense, that considers age as one indicator of culpability, and that looks to other statutory age classifications to arrive at a conclusion about the level of maturity and responsibility that society expects of juveniles. 492 U.S. at 394–96. The Atkins majority adopted the approach of the Stanford dissenters, conducting a proportionality review that brought their own “evaluation” into play along with their analysis of consensus on the issue of executing the mentally retarded.

203 543 U.S. at 569, 570.

204 543 U.S. at 570.

205 543 U.S. at 572–573. Strongly disagreeing, Justice O’Connor wrote that “an especially depraved juvenile offender may . . . be just as culpable as many adult offenders considered bad enough to deserve the death penalty. . . . [E]specially for 17-year-olds . . . the relevant differences between ‘adults’ and ‘juveniles’ appear to be a matter of degree, rather than of kind.” Id. at 600.

206 543 U.S. at 578 (noting “the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty,” id. at 575).

207 543 U.S. at 577, 578. Citing as precedent Trop v. Dulles, 356 U.S. 86, 102–03 (1958) (plurality opinion); Atkins, 536 U.S. at 317 n.21; Enmund v. Florida, 458 U.S. 782, 796–97, n.22 (1982), Thompson v. Oklahoma, 487 U.S. 815, 830–31 & n.31 (1988) (plurality opinion); and Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality opinion).