A reassessment of common law protections for 'idiots'.

• Author: Clemente, Michael
• Position: Introduction into III. Reassessing Insanity Protections for Idiots, p. 2746-2775

NOTE CONTENTS INTRODUCTION I. FRAMING THE CONVERSATION A. The Two Ways in Which a Punishment May Violate the Eighth Amendment B. The Common Law Roots of the Eighth Amendment C. It Was "Cruel" To Execute an Idiot II. A CRITIQUE OF THE HISTORICAL ANALYSES IN PENRY AND ATKINS A. The Historical Findings of Ford, Penry, and Atkins B. Reliance on Disability Models That Postdate the Eighth Amendment C. Sources That Predate the Eighth Amendment III. REASSESSING INSANITY PROTECTIONS FOR IDIOTS A. Idiocy, Lunacy, and the Range of Intellectual Disabilities B. Identifying Idiots: Community Reputation C. Identifying Idiots: Hale's Rule, the Framers' Rule IV. RESTORING THE CONSTITUTIONAL FLOOR: APPLYING EIGHTEENTH CENTURY PROTECTIONS TODAY A. Why Idiocy Protections Matter Today B. Enforcing Idiocy Protections Today CONCLUSION INTRODUCTION

Today the United States is executing a group of people who were likely protected from such punishment in 1791. When the Eighth Amendment was ratified, categorical protections prohibited the execution of people described as "idiots" or "lunatics," collectively referred to as persons non compos mentis. As an initial definitional matter, it may be helpful to analogize "idiots" to people with intellectual disabilities (formerly called mental retardation) and "lunatics" to people with mental illness--although these analogies are certainly oversimplifications. In fact, the accuracy and scope of these transhistorical analogies are at the heart of this Note.

The Eighth Amendment expressly proscribes "cruel and unusual punishments," (1) and this prohibition takes two forms. First, the Eighth Amendment prohibits those punishments that were considered "cruel and unusual" at the time of the Amendment's adoption. (2) Second, a punishment is "cruel and unusual" if it violates the "evolving standards of decency that mark the progress of a maturing society." (3)

Death penalty jurisprudence and scholarship focus almost exclusively on the latter formulation. (4) This is unsurprising--at least from an historical perspective. Eighteenth-century common law permitted the execution of felons, (5) and the Framers contemplated capital punishment in the Constitution. (6) The first Congress, for instance, adopted a statute authorizing the execution of seamen for theft of "any goods or merchandise to the value of fifty dollars." (7) In light of this well-known history, those who oppose the death penalty largely ignore the original public meaning of the Eighth Amendment and instead focus on "evolving standards of decency." As John Stinneford notes, "[t]he Court's nonoriginalists ... have steadfastly refused even to consult the original intent of the Cruel and Unusual Punishments Clause." (8) As a result, Eighth Amendment jurisprudence has focused primarily on the "evolving standards of decency" and overlooked the common law's strong prohibition against the execution of people called "idiots." (9)

The Supreme Court has discussed common law insanity protections on three occasions: Ford v. Wainwright; (10) Penry v. Lynaugh; (11) and Justice Scalia's dissent in Atkins v. Virginia. (12) In Penry and Justice Scalia's dissent in Atkins, the Justices argued that common law protections for "idiots" protected only those who were "profoundly or severely retarded" and not those who were moderately or mildly mentally retarded. (13) This Note challenges that claim. It shows that both English and colonial common law rejected capital punishment for "idiots," and that the legal and public understanding of "idiocy" in 1791 was broader than the understanding proposed by the Court.

This Note proceeds in four parts. Part I frames the discussion by outlining common law notions of "cruel and unusual," the contours of the Eighth Amendment, and early insanity protections. Part II critiques the Supreme Court's historical analyses in Penry and Atkins, and shows that the Court relied on post-ratification disability models (such as eugenic and phrenological models) to construct a narrow definition of "idiocy." When the Court did use preratification sources, it selectively quoted or relied on atypical cases. Part III reassesses common law insanity protections for "idiots," finding that notions of "idiocy" were not limited to those who were "profoundly or severely" mentally retarded; instead, "idiocy" encompassed a relatively wide range of intellectual disabilities. Most notably, this Part demonstrates that colonial and early American legal scholars relied on Matthew Hale's test to determine criminal liability for "idiots": people whose mental abilities were below those of an ordinary child of fourteen were not liable for felony or treason. (14) Part IV explores how this historical reassessment might affect contemporary death penalty litigation. Relying on the fourteen-year-old rule, it appears that a subset of the prisoners on death row with intellectual impairments would likely have qualified as "idiots" in 1791 and therefore should be exempted from execution today.

There are two important prefatory comments. First, the historical language in this Note--like the terms "idiot" and "lunatic"--likely sound jarring to the reader. And they should. The contemporary meanings of these words are heavily laden with a painful history of mistreatment and marginalization of people with intellectual disabilities and mental illness. (15) Unfortunately, due to the historical nature of this inquiry, it is necessary to use the terms from the relevant eras to avoid anachronism. Replacing the word "idiot" with the phrase "intellectual disability" would obscure the historical question that this Note seeks to answer: namely, who was considered an "idiot" and thereby afforded special protections at the end of the eighteenth century?

Fidelity to the historical language is particularly necessary when studying idiocy because the subject contains an elusive and unstable vocabulary. As historian Patrick McDonagh notes, "[a]nyone wanting to understand the history of the idea of intellectual disability and its various genealogical precursors, such as idiocy, must contend with the slipperiness of the key terms.... With concepts as slippery as 'idiocy' and its kin, this task is imposing, but critical...." (16) This slipperiness is inevitable as the vocabulary of idiocy expands and contracts in response to scientific, religious, and sociocultural factors. Instead of attempting to establish an exhaustive taxonomy of mental disability, this Note explains key terms as needed.

The second prefatory comment regards originalism. This Note argues that the original meaning of the "cruel and unusual" clause incorporates the common law prohibition against executing idiots. Furthermore, it argues that the public meaning of the term "idiot" captures a broader group of people than acknowledged by the Supreme Court in Penry and Justice Scalia's dissent in Atkins. To make this argument, this Note employs original meaning theories of constitutional interpretation, which ask what the constitutional text meant to a neutral reader at the time of adoption. (17) As Justice Scalia notes, this approach relies on the writings of "intelligent and informed people of the time" to understand "how the text of the Constitution was originally understood." (18) This task "requires immersing oneself in the political and intellectual atmosphere of the time--somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day." (19) After determining how an "intelligent and informed" person understood the text in 1791, this Note proceeds to abstract "the constitutional principle away from the immediate expectations of the [F]ramers and [R]atifiers" in order to apply those principles today. (20) While this Note employs an originalist methodology, it does not enter the larger debate regarding the merits of originalism. (21)

1. FRAMING THE CONVERSATION

   This Part frames the discussion by outlining three underlying premises. First, there are two ways in which a punishment may violate the Eighth Amendment: 1) it was considered "cruel and unusual" when the Eighth Amendment was adopted in 1791 (the original meaning approach); (22) or 2) it violates the "evolving standards of decency that mark the progress of a maturing society" (the evolving standards of decency approach). Second, because the Eighth Amendment incorporated the rights and protections afforded by English common law, the original meaning approach should investigate both English and colonial sources to determine the Amendment's meaning in 1791. Third, English and colonial common law considered it "cruel" to execute an insane person--a category that included idiots and lunatics.

   1. The Two Ways in Which a Punishment May Violate the Eighth Amendment

      The Eighth Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (23) As discussed above, the Supreme Court has long held that there are two ways in which a punishment may violate the Cruel and Unusual Punishments Clause: first, if the punishment was considered "cruel and unusual" when the Amendment was adopted; (24) or second, if the punishment violates the "evolving standards of decency." (25) Initially, the Court primarily relied on the original meaning approach: the Court's earliest Eighth Amendment cases proceeded by '"looking backwards for examples by which to fix the meaning of the clause,' concluding simply that a punishment would be 'cruel and unusual' if it were similar to punishments considered 'cruel and unusual' at the time the Bill of Rights was adopted." (26) In 1878, the Court in Wilkerson v. Utah first indicated that the Amendment was not strictly tethered to eighteenth-century notions of cruelty. (27) The second approach was later recognized in 1958 in Trop v. Dulles, in which the Court held...