Matching the trajectory of the Supreme Court on the intellectual disability defense: a recommendation for the States.

• Author: Engelhart, Noah Cyr
• Position: COMMENT

Like many of the provisions found within the Bill of Rights, the Eighth Amendment's prohibition against "cruel and unusual punishments" has become a household phrase. While inherently very memorable and quotable, the types of punishment actually prohibited by the Eighth Amendment's "cruel and unusual" language have been subject to hundreds of years of statutory and judicial interpretation. In 2014, the Supreme Court of the United States addressed one particular aspect of Eighth Amendment jurisprudence in Hall v. Florida (1): the intellectual disability defense. (2) In Hall, the Court struck down a Florida statute which prohibited criminal defendants facing capital punishment from invoking the intellectual disability defense if they had an IQ greater than seventy. (3)

The Court's decision in Hall is just the most recent in a line of cases defining the intellectual disability defense. While at first glance Hall might seem like a logical extension of its predecessors, when viewed in light of the surrounding case law and the status of intellectual disability statutes around the country, the decision actually creates uncertainty as to the future shape of the intellectual disability defense. Thus, it is essential for the states to review their own intellectual disability defenses to ensure compliance with Hall and the developing trend in intellectual disability defense jurisprudence. Once the requirements of the Court's decision in Hall are fully understood, as well as the reasoning behind that decision, states would be well served in adopting an intellectual disability defense statute similar to California's statute.

1. CAPITAL PUNISHMENT PRIOR TO THE INTELLECTUAL DISABILITY DEFENSE

   Compared to many of the other amendments that make up the Bill of Rights, the text of the Eighth Amendment is relatively succinct, stating plainly that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (4) The Eighth Amendment represents an important, self-imposed restraint on governmental power, which demonstrates that it is "the duty of the government to respect the dignity of all persons," including criminals. (5) Based on the Eighth Amendment's prohibition of cruel and unusual punishment, Justice Brennan wrote that any punishment that was "degrading to human dignity[,] ... inflicted in a wholly arbitrary fashion[,] ... patently unnecessary," or "rejected [by] society" was to be considered constitutionally impermissible. (6)

   Historically, a convicted defendant's intellectual disability was not considered an absolute defense against a sentence of capital punishment. (7) In Penry v. Lynaugh, the defendant was charged with rape and murder and was subsequently convicted and sentenced to death. (8) However, Penry, the defendant, had been clinically diagnosed as mentally retarded from a young age, most likely due to organic brain damage caused by trauma during birth. (9) Psychologists gave Penry several IQ tests over the course of his life, with results indicating an IQ of somewhere between fifty and sixty-three, which was indicative of "mild to moderate retardation." (10) The defendant's expert witness, a clinical psychologist, testified that Penry had the intelligence of a six-and-one-half-year-old and the social maturity of a nine- or ten-year-old. (11) At sentencing, Penry argued that the Eighth Amendment's prohibition of cruel and unusual punishment should preclude the jury from invoking capital punishment. (12) The trial court rejected this defense and the jury sentenced Penry to death. (13) On appeal, the Supreme Court rejected the contention that it was cruel and unusual to execute a mentally retarded defendant. (14) While the Justices recognized that "mental retardation is a factor that may well lessen a defendant's culpability for a capital offense," the Court did not accept the conclusion that the intellectual disability of a defendant like Penry could be raised as an absolute defense against capital punishment. (15)

   However, the decision in Penry was far from unanimous. In his dissent, Justice Brennan wrote that the majority was correct in upholding the principle that sentencing certain classes of offenders to death can violate the Eighth Amendment "[if] it 'makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering' or [if] it is 'grossly out of proportion to the severity of the crime.'" (16) Disagreeing with the majority, Brennan argued that simply using a defendant's intellectual disability as a mitigating factor in sentencing was insufficient to satisfy the constitutional protections of the Eighth Amendment. (17) Instead, Brennan concluded that it would be unconstitutional to execute the intellectually disabled because such a sentence would run afoul of the Constitution's implicit requirement "that an individual who is not fully blameworthy for his or her crime because of a mental disability does not receive the death penalty." (18) The concerns of Justice Brennan and the dissenters in Penry drew the attention of the Court and were revisited thirteen years later. (19)

2. THE CREATION OF THE INTELLECTUAL DISABILITY DEFENSE

   The intellectual disability defense against capital punishment was not established until 2002 in Atkins v. Virginia. (20) The Supreme Court was once again faced with a criminal defendant who was intellectually disabled and had been sentenced to death for his crimes by the State of Virginia. (21) Defendant Atkins was described as "mildly mentally retarded" at trial by a forensic psychologist, and it was established that he had an IQ of fifty-nine. (22) Faced with strong public opinion on the issue (23) and the Court's own concerns found in the Penry dissent, the Court overruled their previous decision and held that the intellectually disabled should be categorically excluded from capital punishment. (24)

   The Court held that imposing the death penalty on the intellectually disabled was not justified by either of the societal goals of capital punishment, specifically "retribution and deterrence of capital crimes by prospective offenders." (25) Retribution requires punishing a defendant based on his or her culpability, and the Court held that the intellectually disabled simply do not have the same personal culpability as the non-intellectually disabled, undermining the retributive aim of capital punishment. (26) Furthermore, the Court held that exempting the intellectually disabled from capital punishment would not undermine the goal of deterrence, stating that "it is the same cognitive and behavioral impairments that make these defendants less morally culpable ... that 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 upon that information." (27) Since the execution of the intellectually disabled would not serve either of the goals of capital punishment, the Court concluded that, in light of "evolving standards of decency," the Eighth Amendment categorically prohibits sentencing the intellectually disabled to death. (28)

3. BRIDGING THE GAP BETWEEN ATKINS V. VIRGINIA AND HALL V. FLORIDA

   In Atkins, the Court also noted that its conclusion that the Eighth Amendment categorically prohibited executing the mentally disabled was consistent with a consensus of state legislatures. (29) At the time of Atkins, many state legislatures across the country had already adopted statutes that prohibited the execution of intellectually disabled defendants. (30) Georgia was the first state to enact such a prohibition after an outpouring of public protest surrounding the execution of an intellectually disabled defendant in 1986. (31) Many states followed suit, both in response to the protests in Georgia as well as the Supreme Court's decision in Penry, (32) Maryland was the next state to follow Georgia in adopting an intellectual disability defense statute in 1989, (33) with many more states passing similar legislation in the following years. (34)

   After the ruling in Atkins, states were required to modify their criminal laws to include the intellectual disability defense reflecting the new development in Eighth Amendment jurisprudence. However, the Court provided little guidance to the states to assist with "the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." (35) Predictably, this led to great variation in state intellectual disability statutes. Thus, while the ruling in Atkins represented a tremendous development in addressing the cruel and unusual punishment concerns surrounding the execution of the intellectually disabled, the decision by its very nature left open the possibility that the issue might need to be addressed again in the future.

4. THE COURT REVISITS THE INTELLECTUAL DISABILITY DEFENSE

   1. The Case of Hall v. Florida

      The Supreme Court revisited the issue of the intellectual disability defense in the 2014 case of Hall v. Florida. (36) The circumstances surrounding Hall were nothing short of tragic. Along with an accomplice, defendant Hall was charged and convicted at trial of the brutal kidnapping, assault, rape, and murder of a young, pregnant newlywed in 1978. (37) Hall was also charged and convicted of the murder of a sheriffs deputy who attempted to arrest Hall and his accomplice as they attempted to rob a convenience store shortly after the murder. (38) Hall was sentenced to death for both crimes in 1981, although his sentence for the murder of the deputy was later reduced due to insufficient evidence of premeditation. (39) As a defense against the imposition of the death penalty, Hall offered evidence of his intellectual disability as a mitigating factor, even though Florida state law did not directly contemplate such evidence. (40) At the time of Hall's...