Cruel and unequal punishments.

• Author: Farahany, Nita A.

TABLE OF CONTENTS INTRODUCTION I. EIGHTH AMENDMENT ANALYSIS II. ATKINS V. VIRGINIA A. The Court's Opinion B. Defining Mental Retardation C. Legislative Response 1. Limited Intellectual Functioning 2. Deficits in Adaptive Behavior 3. Age of Onset III. MENTAL RETARDATION IN MEDICINE AND LAW A. Frontal Lobe Dysfunction 1. Traumatic Brain Injury (TBI) 2. Dementia B. Pervasive Developmental Disorders C. Central Nervous System Dysfunction 1. Epilepsy 2. Meningitis IV. INEQUALITY AND UNINTENDED CONSEQUENCES CONCLUSION INTRODUCTION

On February 1, 1996, at the age of twenty-two, Gregory Brown suffered a traumatic brain injury, (1) damaging the right frontal lobe and temporal regions of his brain. (2) Less than three years later, Brown committed a double homicide. (3) On May 7, 2002, Brown received the death penalty for those crimes. (4)

On appeal, Brown argued that the execution of a man with a serious brain injury would constitute cruel and unusual punishment. (5) He relied upon Atkins v. Virginia, (6) in which the Court held that executing people with mental retardation violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Brown presented compelling expert evidence that his cognitive, behavioral, and adaptive functioning met the criteria identified by the Court. But the Louisiana Supreme Court rejected his claim. Mental retardation, the court explained, is a "disability characterized by significant limitations in both intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical adaptive skills. The onset must occur before the age of eighteen years." (7) Brown's injury occurred when he was twenty-two.

The Court has invited just this sort of unequal and arbitrary result through its new Eighth Amendment jurisprudence. In Atkins, the Court applied an abbreviated form of its Eighth Amendment proportionality analysis with significant constitutional implications that have, as of yet, gone unnoticed. Before Atkins, successful Eighth Amendment proportionality analysis focused on the proportionality between crime and punishment. The Court, for example, has found the death penalty to be disproportionate to the crime of adult rape, (8) and the sentence of cadena temporal (9) to be disproportionate to the crime of false entry in bookkeeping. But the Court's new proportionality jurisprudence focuses on the proportionality between offenders' culpability and punishment. The Court in Atkins deemed the death penalty disproportionate to the culpability of the mentally retarded, the relevant class of offenders, irrespective of the crime they had committed. (10)

In the course of this momentous but unremarked shift, the Court abandoned an integral part of its earlier proportionality analysis. In earlier Eighth Amendment cases, the Court analyzed the constitutionality of a punishment for a particular crime, in part, by engaging in an intrajurisdictional analysis--comparing the punishment for similar crimes within the same jurisdiction. But when the Court shifted from punishment-to-crime proportionality to punishment-to-culpability proportionality, this previously essential step got lost in the analysis. In Atkins, the Court abandoned intrajurisdictional review and therefore failed to ask or answer whether similarly culpable individuals received the same or less harsh punishment when committing the same crime as the class of offenders at issue.

This failure has grave implications for equality. Had the Court conducted an intrajurisdictional analysis it would have defined the class of offenders at issue, and those outside the class, but similar with respect to the legal purpose of the constitutional interest at issue. By failing to conduct an intrajurisdictional analysis, the Court instead ignored the contours of the class of individuals who should be considered legally mentally retarded. The result has been unequal and arbitrary legislative classifications of mental retardation, like the one applied in Brown's case by Louisiana, which strip the Eighth Amendment of the equality the Court had previously ensured and may run afoul of the Equal Protection Clause of the Fourteenth Amendment.

Other scholars have argued that Atkins should be extended to other categories or groups of individuals in future Eighth Amendment cases. (11) But under current doctrine, these other groups have a far weaker Eighth Amendment claim. The Court has held that "cruel and unusual punishments" are defined by our "evolving standards of decency," (12) which the Court has gleaned from national consensus against a particular punishment or against executing a particular class of offenders. (13) But while the Court found a national consensus about executing the medically defined mentally retarded, no such consensus exists for other medically identical conditions. Indeed, these other conditions have far less powerful interest groups and a much lower public profile, such that a national consensus against executing those individuals is unlikely to emerge.

Meanwhile, another scholar has argued that although the mentally ill lack an Eighth Amendment claim, they may nevertheless have an equal protection claim. (14) This analysis is also flawed. Under current equal protection doctrine, the distinction between the mentally retarded and mentally ill would receive only rational basis or perhaps an intermediate level of scrutiny because neither the mentally retarded nor the mentally ill have suspect class status, and the distinction between them would be analyzed accordingly. (15) Most legislative classifications easily satisfy this low level of constitutional review.

Finally, all of these arguments fail to address the fundamental changes in the constitutional landscape created by Atkins itself. Atkins marked the first success in the Court's attempt to shift its proportionality inquiry from categories of crime to categories of people, resulting in legislative schemes that newly entitle some--and exclude others--from the safeguard against the imposition of death at the hands of the government. It is this shift that could implicate the Fourteenth Amendment--and, indeed, trigger heightened judicial review.

In short, both the Court and the academy have failed to grasp the full implications of Atkins because they have failed to consider the potential collision course that the Court may have now created between the Cruel and Unusual Punishments Clause and the Equal Protection Clause. This Article illustrates this conflict and demonstrates how the Court's new Eighth Amendment jurisprudence could result in remarkable Fourteenth Amendment implications. Thus, this Article demonstrates why the Court's failure to define the substantive class of mental retardation in Atkins has led to legislative classifications of mental retardation that ensure unequal outcomes under the Eighth Amendment and could run afoul of the Equal Protection Clause of the Fourteenth Amendment. And how the dual failure of the Atkins Court--to apply faithfully its Eighth Amendment proportionality precedent, and to define the class it newly protected--may have invited these underinclusive legislative classifications.

To see the point in practice, one need only consider two criminal defendants: the first was mentally retarded from birth; the second suffered a traumatic brain injury at the age of twenty-two; and both have identical cognitive, behavioral, and adaptive impairments. Under state statutes cited approvingly in Atkins and others enacted since, the first defendant cannot be executed, but the second one can. This seems inequitable on its face, but to understand the implications in law, it is necessary to explore the interaction of the Eighth and Fourteenth Amendments. The doctrinal shift in Atkins has profoundly altered that interaction, inviting a new doctrinal discourse.

Part I analyzes the Supreme Court's Eighth Amendment proportionality analysis from its inception in punishment-to-crime cases through its more recent punishment-to-culpability cases, revealing the abandonment of critical elements of earlier proportionality analysis. Part II reviews the legislative enactments promulgated and sustained in response to Atkins, and demonstrates how the Court's dual failure in Atkins resulted in the codification of medical diagnostic criteria rather than a more robust legal standard. Part III then details medical conditions with nearly identical clinical manifestations as the medically defined category "mentally retarded," that would also satisfy the criteria the Court identified as the key attributes relevant to their diminished culpability, but that are excluded from statutory definitions of mental retardation adopted pursuant to Atkins. By and large, courts reject Eighth Amendment claims by these defendants, relying on the safe harbor the Court created as support. The striking similarity between the conditions discussed in Part III and the medically defined category "mentally retarded" make plain the arbitrariness of legislative classifications that turn on identifying a class of persons by medical diagnostic criteria. Finally, Part IV explains how the Court's abandonment of intrajurisdictional analysis invited these narrow legislative schemes, and put the Eighth Amendment on a collision course with the Equal Protection Clause of the Fourteenth Amendment. Legislative classifications of mental retardation may be newly subject to equality challenges as artificially or arbitrarily narrowing the class of individuals entitled to exercise the right to be free from execution. (16) The Court's abandonment of intrajurisdictional analysis enabled the adoption of legislative classifications based on medical diagnostic criteria. These schemes may now be subject to searching judicial review. (17) This could have profound implications for the legal definition of mental retardation in capital cases, and for the future direction of categorical exemptions to the...