Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, says a death penalty case accepted by the Supreme Court offers a puzzle: Just when is it appropriate to turn a constitutional question into a cultural issue to be mediated by private institutions?
THE STATEMENT AT ISSUE:
“Anglo-American law has long recognized a relationship between intellectual capacity and criminal responsibility – and has, for just as long, recognized that our understanding of that relationship is constantly evolving….Just as it would have been wrong to freeze the ancient Saxon legal practice as our law’s unyielding yardstick of intellectual disability, there is no justification for allowing states to apply outdated clinical standards (insofar as they conflict with current ones). If states are not required to use the correct diagnostic standards, then there is no particular reason that they may not use any obsolete standard.”
– Excerpt from a legal brief filed in the Supreme Court by the American Academy of Psychiatry and the Law, joined by other groups, in a case that the Justices on Monday agreed to review on how to determine the intellectual capacity of individuals facing the death penalty. The court will hear and decide the case of Moore v. Texas at its next term, starting in October.
WE CHECKED THE CONSTITUTION, AND…
A distinctive feature of the Supreme Court’s modern view of human beings’ responsibility for their criminal behavior is that courts must take into account an individual’s ability to know right from wrong, the capacity to control their own behavior. It is for that reason, for example, that it has ruled it unconstitutional to sentence to death an individual who is insane, or one who is lacking in intellectual capacity (formerly, more coarsely referred to as mentally retarded), or one who is too young to be held fully accountable.
The court has used very lofty language to describe this judicial sensitivity: “To enforce the Constitution’s protection of human dignity, this court looks to the evolving standards of decency that mark the progress of a maturing society.”
The court, however, has found itself struggling with the consequences of one of its major decisions in this field. Fourteen years ago, in the case of Atkins v. Virginia, the Justice ruled that the Eighth Amendment’s ban on “cruel and unusual punishment” bars the execution of a person with an intellectual disability. But the decision did not undertake to spell out just how that incapacity is to be determined.
In fact, the court said it would leave to each state the choice of how to devise its own substantive and procedural mechanisms for making that determination. That was a gesture of respect to the states’ sovereign authority to write their own criminal laws, and it was a clear expression of confidence that the states were up to the task.
Two years ago, the court found that at least some states were themselves struggling with the whole idea of “intellectual disability,” and, in their frustration, were resorting to the simpler diagnosis that is yielded by IQ tests. Some pegged intellectual capacity at an IQ score of 70, with some few points above or below that as sufficient.
In a decision in Hall v. Florida, the court in 2012 ordered the states – as a constitutional obligation – to avoid relying too heavily upon IQ tests, and told them to take account of modern diagnostic standards, as developed in the medical community.
But in a new case that reached the court late last year, the effect of that decision is being tested. It is the case of Bobby James Moore of Houston, who is on death row in Texas for the murder of a grocery store clerk during a 1980 robbery. A judge found that he was not sufficiently intellectually able to be eligible for the death sentence he received. But that was overturned by the Texas Court of Criminal Appeals.
That higher state court said that it had ruled 12 years ago that a 1992 standard, then prevalent in the medical community, was and would remain the proper test for capacity to be eligible for a death sentence. Until the state legislature decides to write its own standard, the state court said, the 1992 understanding would prevail in Texas courts.
His lawyers told the Justices in the appeal that the state court’s view raised the “all-too-real possibility that intellectually disabled prisoners across the state of Texas will be condemned to their death – in violation of the Constitution – simply because they might not have been considered intellectually disabled a quarter-century ago.” The court, they added, must not allow its own precedents on this question to be “dead letters in the state that carries out far more executions than any other state.”
The state opposed Supreme Court review, noting that the Justices’ Atkins decision “specifically left to the individual states the task of developing appropriate ways to enforce the constitutional restriction against executing intellectually disabled offenders.” Nothing in the Constitution, the state argued, compels states to use the analysis that professional organizations decide to employ at any given time. Moreover, the state said, the standard used in Texas does not vary greatly from “the current definition espoused by the medical community.”
At a fundamental level, the case of Moore v. Texas confronts the Justices with a puzzle: just when is it appropriate to turn a constitutional question into a cultural issue to be mediated by private institutions? Normally, one thinks of courts as quite capable of laying down legal definitions to govern the conduct of government. That, for example, is what is at issue in deciding what is “cruel” and what is “unusual” about punishments that will violate the Eighth Amendment.
But if the standards that need to be developed in court cases are not legal in nature, to what sources may the courts turn for guidance? If private decision-makers are not close to unanimous in the standards that they develop or accept, how are judges to choose from among those? And, if private standards tend to change, over time, what requires that the courts adopt what is now different?
The human capacity to learn about the human condition is certainly far broader, as a cultural phenomenon, than what lawyers and judges are able to conceive. It is perhaps one of the core challenges of being a judge to know when the judicial imagination has reached its limits, and where it is appropriate to turn for broader guidance.
