Cognitively Disabled and Death Penalty

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

The Supreme 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. Wainwright1 that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who has a severe mental illness and that properly raised issues of the individual’s mental health at the time of execution must be determined in a proceeding satisfying the minimum requirements of due process.2 The Ford Court noted that execution of persons with severe mental illness 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.3 And, although no states purported to permit the execution of persons with severe mental illness, Florida and some others left the determination to the Governor. Florida’s procedures, the Ford 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.4

The Court in Panetti v. Quarterman clarified when a prisoner’s current mental state can bar his execution under the Ford rule.5 Relying on the understanding that the execution of a prisoner who cannot comprehend the reasons for his punishment offends both moral values and serves “no retributive purpose,” the Court concluded that the operative test was whether a prisoner can “reach a rational understanding for the reason for his execution.” 6 Under Panetti, if a prisoner’s mental state is so distorted by mental illness that he cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment,” he cannot be executed.7 Furthermore, once a death row inmate has made “a substantial showing that his current mental state would bar his execution” due process entitles him to a hearing at which he may present “evidence and argument from the prisoner’s counsel, including expert psychiatric evidence” in his support of his claim of incompetence and in rebuttal of any state-offered evidence.8

Twelve years after Panetti, the Court further clarified two aspects of the Ford-Panetti inquiry in Madison v. Alabama.9 First, Ford-Panetti stands for the proposition, the Court declared, that a prisoner cannot be executed for a capital offense if his “'concept of reality’ is ‘so impair[ed]’ that he cannot grasp the execution’s ‘meaning or purpose’ or the link between [his] crime and its punishment.’” 10 The Court explained that a prisoner challenging his execution on the ground of a mental disability cannot prevail “merely because he cannot remember committing his crime.” 11 Instead, a prisoner’s memory loss may be a factor in determining whether the prisoner has a rational understanding of the reason for his execution.12 Second, the Madison Court concluded that while Ford and Panetti pertained to prisoners suffering from psychotic delusions, the logic of those opinions extended to a prisoner who suffered from dementia.13

In 1989, when first confronted with the issue of whether execution of the persons with intellectual disabilities is constitutional, the Court found “insufficient evidence of a national consensus” against executing such people.14 In 2002, however, the Court determined in Atkins v. Virginia15 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.16 In 1989, only two states and the Federal Government prohibited execution of persons with intellectual disabilities while allowing executions generally.17 By 2002, an additional sixteen states had prohibited execution of persons with intellectual disabilities, and no states had reinstated the power.18 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.” 19 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 offenders with intellectual disabilities.20 “With respect to retribution—the interest in seeing that the offender gets his ‘just desserts'—necessarily depends on the culpability of the offender.” 21 Yet reduced intellectual capacity reduces culpability. Deterrence is premised on the ability of offenders to control their behavior. Yet reduced intellectual capacity makes it less likely that an offender will associate his conduct with prospect of the death penalty.22

Once again, the Court left to the states “the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” 23 In Schriro v. Smith, the Court again quoted this language, determining that the Ninth Circuit exceeded its authority in holding that Arizona courts were required to conduct a jury trial to resolve a defendant’s claim that he was ineligible for the death penalty because of intellectual disability.24 States, the Court added, are entitled to “adopt[ ] their own measures” for adjudicating claims of intellectual disability though “those measures might, in their application, be subject to constitutional challenge.” 25

In Hall v. Florida,26 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.27 The Court invalidated this rigid standard, observing that “[i]ntellectual disability is a condition, not a number.” 28 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.29 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.30

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.” 31 First, Justice Ruth Bader 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 intellectual disability.32 Second, the Moore I 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;33 (2) dismissing several traumatic experiences from the petitioner’s past;34 and (3) requiring the petitioner to show that his adaptive deficits were not due to a personality disorder or a mental health issue.35 Third, the Moore I 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.36 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.” 37 The Supreme Court instead held that “lay stereotypes” (and not established professional standards) on an individual’s intellectual capabilities should “spark skepticism.” 38 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.39

1: 477 U.S. 399 (1986).
2: There was an opinion of the Court only on the first issue: that the Eighth Amendment creates a right not to be executed while suffering severe mental illness. The Court’s opinion did not attempt to define the mental illnesses that make a person ineligible for the death penalty. Justice Lewis 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.
3: Id. at 406–408.
4: The Court had no opinion on the issue of procedural requirements. Justice Thurgood Marshall, joined by Justices William Brennan, Harry Blackmun, and John Paul 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 Lewis 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 Sandra Day O’Connor, joined by Justice Byron 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.
5: 551 U.S. 930 (2007).
6: Id. at 957–58.
7: Id. at 957.
8: Id. at 950.
9: 139 S. Ct. 718 (2019).
10: Id. at 723 (quoting Panetti, 551 U.S. at 958).
11: Id. at 726–27.
12: Id. at 727. In so holding, The Court noted that evidence that a prisoner has difficulty preserving any memories may contribute to a finding that the prisoner may not rationally understand the reasons doe his death sentence.
13: Panetti's “standard focuses on whether a mental disorder has had a particular effect: an inability to rationally understand why the State is seeking execution. Conversely, that standard has no interest in establish any precise cause: Psychosis or dementia, delusions or overall cognitive decline are all the same under Panetti, so long as they produce the requisite lack of comprehension.” Id. at 728.
14: Penry v. Lynaugh, 492 U.S. 302, 335 (1989). Although unwilling to conclude that execution of a person with an intellectual disability is “categorically prohibited by the Eighth Amendment,” id. at 335, the Court noted that, because of the requirement of individualized consideration of culpability, a defendant with such a disability is entitled to an instruction that the jury may consider and give mitigating effect to evidence of intellectual disability 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).
15: 536 U.S. 304 (2002).
16: 536 U.S. at 314, 316.
17: 536 U.S. at 314.
18: Id.
19: 536 U.S. at 315.
20: 536 U.S. at 318.
21: 536 U.S. at 319.
22: 536 U.S. at 319–20. 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.
23: 536 U.S. at 317 (citation omitted) (quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986)).
24: 546 U.S. 6, 7 (2005) (per curiam).
25: 546 U.S. at 7.
26: 572 U.S. 701 (2014).
27: Cherry v. State, 959 So.2d 702, 712–13 (Fla. 2007) (per curiam) (construing Fla. Stat. § 921.137 (2013)).
28: Hall, 572 U.S. at 701, 703
29: Id.
30: 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, 572 U.S. 701, 723 (2014)
31: 137 S. Ct. 1039, 1044 (2017) [hereinafter Moore I].
32: Id. at 1049.
33: Id. at 1050 ( “[T]he medical community focuses the adaptive-functioning inquiry on adaptive deficits.” ); see also id. at 1050 ( “Clinicians, however, caution against reliance on adaptive strengths developed in a controlled setting, as prison surely is.” ) (internal citations and quotations omitted).
34: Id. at 1051 ( “Clinicians rely on such factors as cause to explore the prospect of intellectual disability further, not to counter the case for a disability determination.” ).
35: Id. ( “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).
36: Id.. 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. (internal citations and quotations omitted).
37: See Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004).
38: See Moore I, 137 S. Ct. at 1052.
39: Id. at 1052–53. Two years after Moore I, the case returned to the High Court, where, in a per curiam opinion, the Court again reversed the Court of Criminal Appeals of Texas. See Moore v. Texas, 139 S. Ct. 666, 667 (2019) (per curiam) [hereinafter Moore II]. That court had concluded that the prisoner did not have an intellectual disability and was, therefore, eligible for the death penalty. Id. Finding that the lower court’s opinion “repeat[ed] the analysis” the Supreme Court “previously found wanting” in its 2017 opinion, Moore II criticized the Texas court’s (1) reliance on the petitioner’s adaptive strengths in lieu of his adaptive deficits; (2) emphasis on the petitioner’s adaptive improvements made in prison; (3) tendency to consider the petitioner’s social behavior to be caused by “emotional problems,” instead of his general mental abilities; and (4) continued reliance on the Briseno case the Court had previously criticized in Moore I. Id. at 670–72. Ultimately, the Court concluded that the record from the trial court demonstrated that the petitioner was “a person with intellectual disability,” reversing the lower court’s judgment and remanding the case. Id. at 672.