Click below to listen to the audio podcast: Intellectual Disability and the Death Penalty.
There are 32 states in America that allow the death penalty for certain crimes, but prohibit the punishment from being used on specific populations such as children or persons with intellectual disabilities. That prohibition is a lot newer than people think. It was only in June of 2002 that the US Supreme Court ruled that sentencing people with intellectual disabilities to death is a violation of the Eight Amendment and that such executions are a form of “cruel and unusual punishment” (Atkins v. Virginia).
However, as they say, the devil is in the details. What Atkins v. Virginia doesn’t say is, how can a prosecutor determine a defendant’s mental capacity? Who is and who is not a person with an intellectual disability? The easy answer that I think everyone would respond with would be, IQ tests. That was challenged in Hall v. Florida. Florida had said that anyone with an IQ of 70 or below had an intellectual disability. Freddie Lee Hall, scored a 71.
The court reasoned that using a hard-and-fast metric of intellectual disability was arbitrary if other considerations were not considered in cases where the defendant scored close to 70. As a note, the APA (American Psychological Association)…where IQ testing originally came from stated in their amicus brief that even they thought that a valid diagnosis required a more comprehensive assessment. And before you think Florida completely out of line, there are eight other states that have an IQ of 70 listed as their determinant for intellectual disability for the death penalty.
Most states tend to follow along three general criteria for consideration:
- Significant subaverage intellectual functioning (usually defined as an IQ that is two standard deviations below the mean, generally 70 or below with a 5-point standard error measurement);
- Significant limitations in adaptive functioning (normally this means a finding of significant deficits in two or more skill areas); and
- Onset in the developmental period (typically considered to be before the age of eighteen).
The Texas Court of Criminal Appeals (CCA), thought the above criteria was too…lenient? They even said: “Some might question whether the same definition of mental retardation that is used for providing psychological assistance, social services, and financial aid is appropriate for use in criminal trials to decide whether execution of a particular person would be constitutionally excessive punishment.” So they took it upon themselves to create a definition, referred to as the Briseño factors. On June 6, 2016, the Supreme Court agreed to hear Moore v. Texas, a case that specifically looks at the these factors.
So, in addition to the criteria above, seven additional factors for assessing someone’s intellectual capacity were included:
- Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination?
- Has the person formulated plans and carried them through or is his conduct impulsive?
- Does his conduct show leadership or does it show that he is led around by others?
- Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
- Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?
- Can the person hide facts or lie effectively in his own or others’ interests?
- Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?
Not very scientific. And what makes this particularly heinous is that if you think about how this would play out in a courtroom, this isn’t a “battles of the experts” or doctors nitpicking interpretations of psychological interviews. It gives a LOT of power and weight to anecdotal evidence of function and opinions. Joe Blow off the street could weigh in and it would have equal weight as formalized assessments and testing. That is what using the Briseño factors does.
So where do these come from…CCA’s example of an individual that most Texans would agree should be exempt? Lennie Smalls, the intellectually disabled character in Steinbeck’s Of Mice and Men. Yes, a FICTIONAL character is being used as an example for determinations in death penalty cases. The Briseño factors reinforce every ridiculous stereotype about intellectual disability.
The opening arguments from November 29 are promising. From deathpenaltyinfo.org
Five justices seemed sympathetic to Moore’s case, raising concerns about the arbitrariness of allowing states to set their own criteria for deciding who is intellectually disabled. Justice Ruth Bader Ginsburg said, “You’re opening the door to inconsistent results … something that we try to prevent from happening in capital cases.” Justice Stephen Breyer said that, without nationwide uniformity, there will be “disparities and uncertainties” and “people who are alike treated differently.” Justices Elena Kagan and Sonya Sotomayor questioned whether application of the Briseño factors excluded some individuals whom clinicians would regard as being intellectually disabled. Justice Anthony Kennedy asked Texas Solicitor General Scott Keller whether the purpose of Texas’ system was to “really limit” the definition of intellectual disability. When Keller said that was not the intent, Kennedy asked, “But isn’t that the effect?” The Court is expected to rule on the case by June 2017.