A SECOND LOOK AT EXECUTING THE MENTALLY RETARDED:
The Meaning Of "Cruel And Unusual Punishments"

By SHERRY F. COLB

Wednesday, Apr. 10, 2002

Earlier this year, the United States Supreme Court heard argument in Atkins v. Virginia. This case asks whether executing the mentally retarded constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.

Thirteen years ago, in Penry v. Lynaugh, the Court confronted this issue for the first time. It held there that the mentally retarded may constitutionally be executed. Much commentary has addressed the question of whether the Court is likely to change its mind this time around. However, there is another, less-discussed aspect of the Penry question that also deserves attention.

While Penry lost on his first issue, regarding execution of the mentally retarded, he won on a second. The Court invalidated his sentence, not because the mentally retarded cannot be executed, but because in imposing the sentence, Penry's jury did not have the opportunity to take his mental retardation into account as a potential mitigating factor - a factor that could weigh against choosing death. Indeed, under the Texas law applicable at the time, mental disability was relevant in sentencing only insofar as it might be thought to increase future dangerousness - as an aggravating factor, in other words, and thus a reason to impose death. In short, the defendant's low IQ could only have hurt him at sentencing.

In Penry, five Justices apparently thought this system was unfair and therefore cruel and unusual. Accordingly, they invalidated Penry's sentence on what were, in essence, procedural grounds.

Over the years, this procedural focus has dominated the Court's death penalty docket. Eighth Amendment questions have centered primarily on whether the deliberation that goes into a capital sentence is sufficiently informed and complete. In contrast, the Court's current consideration, in Atkins, of whether to rule out the death penalty entirely for a particular class of offenders (defined here by their mental status) is exceptional.

The Court's procedural focus is striking, for the Eighth Amendment, by its language, appears to be a very substantive constitutional guarantee.

The Substantive Heart of the Eighth Amendment

The Eighth Amendment prohibits the government from "inflict[ing]" "cruel and unusual punishments." On their face, these words would appear to have three potential targets, all of them substantive.

The Amendment's first evident target is the class of punishments that inflict so much suffering that they are absolutely off limits, regardless of how heinous the crime or how evil the criminal. Disembowelling alive and burning at the stake are two examples of such punishments that the Supreme Court has referenced in dicta (that is, a court's words that are unnecessary to the case's disposition). The Court has yet to invalidate any existing method of execution on this theory.

The Amendment's second target would appear to be the category of punishments that are disproportionate relative to the crimes committed. Executing a person for shoplifting, for example, would qualify, no matter how humane the method of execution.

Though perhaps less convincing an argument from the perspective of many women, the Supreme Court has also ruled the death penalty to be disproportionate punishment for rape.

The Eighth Amendment's third and final target could be harsh penalties visited upon particularly vulnerable or uncomprehending offenders. Laws that impose the death penalty in spite of an offender's serious mental illness or incapacity might be examples.

Other illustrations would include a death penalty for offenders aged 15 and under or for offenders below a certain cognitive capacity, either at the time of the offense or at the moment prior to execution. The possibility that the mentally retarded should be exempt from the death penalty falls within this third substantive category.

The Supreme Court's Focus on Procedure

Notwithstanding the Eighth Amendment's highly substantive text, however, the Court has tended to read it primarily as a source of procedural protection.

In its death penalty jurisprudence, moreover, the Court has attended almost exclusively to procedure in elaborating the content of the ban on cruel and unusual punishments. The Penry holding mentioned above - that a jury must be able to consider mental disability as a mitigating factor - is only one example.

The Court has also said that, under the Eighth Amendment, a capital sentencing jury must be informed if, under the particular jurisdiction's state law, "life imprisonment" means life without parole (thus assuring the jury that choosing a life sentence would keep the defendant off the streets forever).

Note, by contrast, the more substantive alternative the Court might have adopted instead: It could have required that for a death sentence to be valid, state law must offer the jury life without parole as a less restrictive alternative. Instead, the Court left to the states the decision whether to offer life without parole as an option at all - and simply held that if the option did exist, the jury would have to be told about it.

In other decisions, the Court has made clear that state law may not grant the jury discretion to sentence every murderer to death, without guidance from the judge. Nor may state law require the jury to sentence every convicted murderer to death.

Again, consider the substantive alternative the Court avoided in favor of taking the procedural route. One could, for example, read the Eighth Amendment to prohibit the death penalty altogether, on the theory that it is not a merciful punishment. Instead, the Court permits executions but simply demands that a jury be allowed to opt out for any factor it deems mitigating in a particular case. In this way, the Eighth Amendment death penalty law appears to empower the jury, rather than protect the individual on trial for his life.

Unlike the three major substantive Eighth Amendment limits discussed earlier, the Court's pronouncements generally do not rule out whole categories of executions. They instead regulate the process of jury decision-making that leads to a sentence of death.

From the defendant's perspective, such rulings mean that he may be entitled, at best, to a new sentencing hearing, at which the jury could well impose a new death sentence - this time, in a procedurally "correct" manner. Under this approach, the Court demands that jury decision-making be beyond reproach. In contrast, however, the Court rarely questions the cruelty of the ultimate decision for death, given the nature of the defendant and the offense at issue.

The Eighth Amendment as a Type of Informed Consent Requirement

Why does the Court focus so heavily on the need for informed jury decision-making? To understand the Court's focus, one might think of the decision to impose death as a medical procedure performed upon the state - perhaps the removal of a diseased limb. The jury, continuing the analogy, acts as the mind of the patient/state, deciding on its behalf whether to undergo the procedure.

On this view, the jury, like a patient considering whether to have a particular operation, deserves to give informed consent - to know all the material facts before deciding whether to go through with it. Is there a less severe option - such as life without parole? If there is, the jury must be able to choose it, just as the patient suffering from breast cancer might in some cases choose lumpectomy over radical mastectomy.

From this perspective, imposing a mandatory death penalty is wrong because it is like forcing unwanted treatment on a patient who has the right to forego that treatment. On the other hand, once the patient knows all material facts and alternative measures, she may elect to go ahead with the more radical procedure, since it is within the bounds of sound medical practice. And once it has all of the relevant facts, the jury similarly might impose death, as long as it stays within the absolute outer boundaries of substantive death penalty application.

Conceiving of the death penalty process as a kind of informed consent session expresses a value that has little to do with the people subject to execution but much to do with the society engaged in executing them.

Of course, this is not how we normally think about the death penalty, and it hardly corresponds to the most natural reading of the constitutional text - which, as I explained above, invites a much more substantive interpretation. The informed consent approach does, however, reflect a deep truth about the death penalty: This penalty does something to the body politic - to "the people" - whenever it is carried out. We therefore have a substantial interest in ensuring that that the body politic is represented by a thinking, deliberating, and fully informed jury when the decision is made.

Informed consent is, in this sense perhaps, an appropriate model for capital sentencing - in expressing the fact that we do something to ourselves and not only to the condemned when we carry out an execution. This model may incidentally capture as well the substantive Eighth Amendment limits on who may be executed and by what means. Death by slow torture might seem deserved in some cases, for example, but carrying it out changes us for the worse, and we therefore refrain.

The Court now faces once again question of the mentally retarded. Might we be hurting ourselves irreparably when we order the killing of a developmentally disabled adult, just as we do when we execute a child? Might we therefore want to place this decision outside the boundaries of sound capital sentencing? The Court will tell us soon, and its answer might say more about our society than it does about the rights of the mentally retarded.


Sherry F. Colb is a visiting professor at University of Pennsylvania and a professor at Rutgers Law School. She teaches and writes about criminal procedure, among other subjects. Her other columns on criminal law and criminal procedure may be found in the archive of her columns on this site.

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