The President cannot amend the Constitution. Congress cannot by itself. The legislatures of the States cannot, by themselves. Only 2/3 of both houses of Congress and 3/4 of the state legislatures (or convention alternatives) can do that, according to Article V of the Constitution. The Founders made it very difficult on purpose, as our fundamental law should rarely change, and only if there is a genuine consensus to change it.
But does the American Association on Intellectual and Developmental Disabilities (AAIDD), a private organization that the people have no voice in selecting, have the power to amend the Eighth Amendment by itself and widen the class of people that amendment (the Supreme Court says) exempts from capital punishment regardless of how horrible the crime or how clearly premeditated it was? That is one possible interpretation of the Supreme Court’s misguided 2017 decision in Moore v. Texas. See this post. The Supreme Court today turned down a case, over the dissent of Justices Sotomayor, Breyer, and Kagan, presenting that question.
Wesley Coonce was in federal prison for life when he and another prisoner attacked and killed a third prisoner. Coonce had normal intelligence until age 20, when a brain injury lowered his IQ down to the borderline of intellectual disability.
When a life prisoner commits murder, the punishment choices are (1) death, or (2) a sentence which may in reality be no punishment at all. A second life sentence might be designated “consecutive,” but in reality it cannot be if the first sentence is fully enforced. It might reduce the chance of getting released early from what is nominally a life sentence, but then again it might not. A reduction of speculative possibilities is per se an inadequate punishment for murder. Coonce was sentenced to death.
Here is the AAIDD’s current definition of intellectual disability, from their website:
Intellectual functioning—also called intelligence—refers to general mental capacity, such as learning, reasoning, problem solving, and so on.
One way to measure intellectual functioning is an IQ test. Generally, an IQ test score of around 70 or as high as 75 indicates a limitation in intellectual functioning.
Adaptive behavior is the collection of conceptual, social, and practical skills that are learned and performed by people in their everyday lives.
Conceptual skills—language and literacy; money, time, and number concepts; and self-direction.
Social skills—interpersonal skills, social responsibility, self-esteem, gullibility, naïveté (i.e., wariness), social problem solving, and the ability to follow rules/obey laws and to avoid being victimized.
Practical skills—activities of daily living (personal care), occupational skills, healthcare, travel/transportation, schedules/routines, safety, use of money, use of the telephone.
Standardized tests can also determine limitations in adaptive behavior.
Age of Onset
This condition is one of several developmental disabilities—that is, there is evidence of the disability during the developmental period, which is defined as before the age of 22.
But in defining and assessing intellectual disability, the AAIDD stresses that additional factors must be taken into account, such as the community environment typical of the individual’s peers and culture. Professionals should also consider linguistic diversity and cultural differences in the way people communicate, move, and behave.
Finally, assessments must also assume that limitations in individuals often coexist with strengths, and that a person’s level of life functioning will improve if appropriate personalized supports are provided over a sustained period.
Only on the basis of such many-sided evaluations can professionals determine whether an individual has intellectual disability and tailor individualized support plans.
The AAIDD changes this definition from time to time, generally if not always in the direction of expanding the number of people who qualify for the diagnosis. At the time of the District Court and Court of Appeals decisions in this case, the definition required onset before the age of 18, which obviously precluded Coonce from qualifying. A new manual issued while certiorari was pending in the Supreme Court changed it to 22.
The Supreme Court excluded persons with “mental retardation,” as it was then known, from the death penalty in its 2002 decision in Atkins v. Virginia. The shaky basis for such categorical exclusions is that there is a sufficient national consensus against executing anyone in a certain defined group that such an execution is “unusual” in the sense that word is used in the Eighth Amendment. Swallowing hard and assuming that there actually was such a consensus regarding the “mentally retarded” at the time of Atkins, does it follow that the consensus expands every time the AAIDD issues a new manual? That is pretty hard to believe.
An unusual feature of this case is that the Solicitor General asked the Court to “grant, vacate, and remand,” known in SCOTUS circles as a GVR order. It is unusual for the Court to decline a request from both parties, but it did in this case. Do we have a majority to back away from Moore?
More broadly, how do we deal with the ever expanding definitions? I have a modest proposal. The Court could recognize that it got it right the first time in Penry v. Lynaugh (1989). Intellectual disability is a mitigating factor, and a powerful one, but it is one to be applied in the weighing process on the facts of the case, where the extent of the disability and its relevance to the defendant’s capacity for free choice may be considered on an individual basis. The choice between a life sentence and a death sentence should not depend on the binary choice to apply or not apply an semi-arbitrary label that has little connection to science at this point.
An even more modest backup proposal would be to limit the categorical exemption to the definition of “moderate retardation” at the time of Atkins, or lower. That is, roughly, the kind of person most people in the United States would have pictured if you had asked them then whether “retarded” people should be subject to capital punishment. For levels above the old “moderate,” go back to Penry.
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