IQ and the Death Penalty

Ann Althouse is concerned that a court is now hearing the argument that if a convicted person's IQ is found to be above a certain level, even if they were earlier found to be retarded to the point where they had a right not to be executed, the planned execution can proceed once again.

This is one of these unbelievable appeals in the U.S. that goes on forever. Atkins v. Virginia was decided in June 2002. The crime for which Atkins was convicted took place in August 1996. A jury sentenced him to death twice, and this sentence was affirmed by the Virginia Supreme Court in the year 2000. The U.S. Supreme Court ruled 6 to 3, in an opinion written by Stevens, that the death penalty constitutes cruel and unusual punishment, and is thus precluded, for those who are "mildly retarded"--a phrase which was given a somewhat precise meaning. Everyone seems to agree that the "severely or profoundly mentally retarded"--whose condition is clear immediately--have been exempt from the death penalty at least since the time of the drafting of the U.S. Constitution.

It is the same Mr. Atkins who is now found to have a higher IQ than when he was tested before. The prosecution wants to proceed with an execution as planned earlier.

Althouse:

The prosecutor in the Atkins case is declaring that there is a bright line at 70 and the judge seems to agree ("The issues are bright lights and targeted with a bull's-eye"). That means a random guess on a single question on the test could be a matter of life and death!

According to the text of the Atkins decision, avoiding the death penalty requires more than just a low IQ score:

[blockquote][C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. [/blockquote]

But what about someone who has the evidence of "significant limitations in adaptive skills" from childhood but lacks a low enough IQ score? And how low does the score have to be? The Supreme Court mentions several numbers, but doesn't draw a bright line. How could it? Americans don't put that much trust in IQ tests. How could our conception of what is "cruel and unusual punishment" be thought to depend on these tests, which we do not rely on in any other area of social policy?

True, faith in IQ scores is probably a good example of American naivete--like faith in the polygraph machine. Perhaps even SAT/ACT, etc. On the other hand, the main reason the IQ test has been scrapped from public schools probably has to do with the way it makes certain races look bad. Be that as it may, there are two views here. One is that except for the profoundly retarded, whose condition is not in doubt, mental retardation in itself cannot exempt someone from the death penalty. The other is that there is a reliable way of drawing some different line, at "mild" retardation, and sparing even more people from execution.

As one of my students said in a paper, this is a good strategy for opponents of capital punishment: attack the marginal cases that might generate a lot of public sympathy. But this is one case where I think Scalia succeeds in taking the majority's arguments apart. (Although I gave a good grade to a student who took the majority's side).

Mental retardation can already be used as a mitigating factor in sentencing by either a judge or a jury. This does not require precise definitions, or a belief that the retarded are not responsible for their actions. It might be simply that of two criminals working together, the one who is retarded is easily led. On the other hand, the majority is arguing that the retarded cannot be blamed for executing a crime--as if they are somehow more likely than others to do so; and that the death penalty is not a deterrent for those who do not fully rationalize their decisions.

[blockquote]One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association (set forth in the Court?s opinion, ante, at 2?3, n. 3) to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed) [snip] the capital defendant who feigns mental retardation risks nothing at all.[/blockquote]

There is not a clear enough basis here to decide who the mildly or moderately retarded are, and grant them a blanket exemption from the death penalty. Rather than precisely describing a part of the population, and prescribing how they should be treated, the Court is probably inviting a parade of fakers to try a new basis for appeals.

Mentally retarded offenders "face a special risk of wrongful execution" because they are less able "to make a persuasive showing of mitigation," "to give meaningful assistance to their counsel," and to be effective witnesses. Ante, at 16. "Special risk" is pretty flabby language (even flabbier than "less likely")--and I suppose a similar "special risk" could be said to exist for just plain stupid people, inarticulate people, even ugly people. If this unsupported claim has any substance to it (which I doubt) it might support a due process claim in all criminal prosecutions of the mentally retarded; but it is hard to see how it has anything to do with an Eighth Amendment claim that execution of the mentally retarded is cruel and unusual. We have never before held it to be cruel and unusual punishment to impose a sentence in violation of some other constitutional imperative.

This is great stuff. Even if the claim about risk is true, it could apply to lots of people who suffer from no known medical or developmental condition; and it is irrelevant to the death penalty argument proper.

The death penalty makes sense or it doesn't. It is consistent with the eighth amendment, or it isn't. Atkins doesn't help in answering these questions. Althouse has said that like a lot of Americans, she wants capital punishment to be on the books, but she wants it to be used very seldom. Maybe this is the Stevens-O'Connor "pragmatic" approach.

UPDATE Feb. 11: The California Supreme Court has ruled unanimously (opinion by Janice Rogers Brown, about whom we may be hearing more) that IQ alone cannot decide whether someone is executed. Ann Althouse comments again.

Sat Feb 12, 2005 6:56 am MST by robertll | Email Article |

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IQ and the Death Penalty