Amdt8. Limitations on Imposition of the Death Penalty: Cognitively Disabled

Eighth Amendment:

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

The 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 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. 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 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.3

The Court in Panetti v. Quarterman clarified when a prisoner’s current mental state can bar his execution under the rule of Ford.4 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.5 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.6

Twelve years after Panetti, the Court further clarified two aspects of the Ford-Panetti inquiry in Madison v. Alabama.7 First, on behalf of the Court, Justice Kagan concluded that a prisoner challenging his execution on the ground of a mental disorder cannot prevail merely because he cannot remember committing his crime.8 Recognizing that a prisoner who can no longer remember a crime may yet recognize the retributive message society intends to convey with a death sentence, the Court declined to impose a categorical rule prohibiting the execution of such a prisoner.9 Instead, Justice Kagan viewed a prisoner’s memory loss as a factor that a court may consider in determining whether he has a rational understanding of the reason for his execution.10 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.11 For the Court, the Ford-Panetti inquiry is not so much concerned with the precise cause for whether a prisoner can rationally understand why the state is seeking an execution and is instead focused on whether the prisoner’s mental condition has the effect of preventing such an understanding.12

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.13 In 2002, however, the Court determined in Atkins v. Virginia14 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.15 In 1989, only two states and the Federal Government prohibited execution of persons with intellectual disabilities while allowing executions generally. By 2002, an additional 16 states had prohibited execution of persons with intellectual disabilities, and no states had reinstated the power. 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.16 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 mentally offenders with intellectual disabilities. Retribution necessarily depends on the culpability of the offender, yet intellectual disability reduces culpability. Deterrence is premised on the ability of offenders to control their behavior, yet the same cognitive and behavioral impairments that make these defendants less morally culpable . . . 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 on that information.17

In Atkins, the Court wrote, [W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.18 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.19 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.20

In Hall v. Florida,21 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.22 The Court invalidated this rigid standard, observing that [i]ntellectual disability is a condition, not a number.23 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.24 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.25

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.26 First, Justice 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.27 Second, the Moore 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;28 (2) dismissing several traumatic experiences from the petitioner’s past;29 and (3) requiring the petitioner to show that his adaptive deficits were not due to a personality disorder or a mental health issue.30 Third, the 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.31 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.32 The Supreme Court instead held that lay stereotypes (and not established professional standards) on an individual’s intellectual capabilities should spark skepticism.33 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.34


  1.  Jump to essay-1477 U.S. 399 (1986).
  2.  Jump to essay-2There 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 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.  Jump to essay-3There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and 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 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 O’Connor, joined by Justice 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.
  4.  Jump to essay-4551 U.S. 930 (2007).
  5.  Jump to essay-5Id. at 958.
  6.  Jump to essay-6Id. at 958–60. In a separate part of the opinion, the Court held that the Due Process Clause of the Fourteenth Amendment required the state to provide the petitioner with an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts on the petitioner’s sanity. Id. at 951.
  7.  Jump to essay-7See 139 S. Ct. 718 (2019).
  8.  Jump to essay-8Id. at 726-27.
  9.  Jump to essay-9Id. at 727.
  10.  Jump to essay-10Id. 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 for his death sentence. Id.
  11.  Jump to essay-11Id. at 728.
  12.  Jump to essay-12Id. at 728-29 ([I]f and when that failure of understanding is present, the rationales kick in—irrespective of whether one disease or another . . . is to blame.).
  13.  Jump to essay-13Penry 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).
  14.  Jump to essay-14536 U.S. 304 (2002). Atkins was 6-3 decision by Justice Stevens.
  15.  Jump to essay-15536 U.S. at 314, 316.
  16.  Jump to essay-16536 U.S. at 315.
  17.  Jump to essay-17536 U.S. at 320. 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.
  18.  Jump to essay-18536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986).
  19.  Jump to essay-19546 U.S. 6, 7 (2005) (per curiam).
  20.  Jump to essay-20546 U.S. at 7.
  21.  Jump to essay-21572 U.S. 701 (2014) .
  22.  Jump to essay-22Fla. Stat. § 921.137.
  23.  Jump to essay-23Hall, 572 U.S. at 701, 723
  24.  Jump to essay-24Id. Of those states that allow for the death penalty, a number of them do not have strict cut-offs for IQ scores. See, e.g., Cal. Penal Code § 1376 (West 2016); La. Code Crim. Proc. Ann. art. 905.5.1 (2016); Nev. Rev. Stat. § 174.098.7; Utah Code Ann. § 77–15a–102 (Lexis-Nexis 2016). Similarly, the U.S. Code does not set a strict IQ cutoff. See 18 U.S.C. § 3596(c) (2012).
  25.  Jump to essay-25This 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)
  26.  Jump to essay-26See 137 S. Ct. 1039, 1044 (2017) [hereinafter Moore I].
  27.  Jump to essay-27Id. at 1049.
  28.  Jump to essay-28Id. 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).
  29.  Jump to essay-29Id. 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.).
  30.  Jump to essay-30Id. at 1051 (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).
  31.  Jump to essay-31Id. at 1051. 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).
  32.  Jump to essay-32See Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004).
  33.  Jump to essay-33See Moore I, 137 S. Ct. at 1052.
  34.  Jump to essay-34Id. 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.