Tuesday, June 10, 2014

Which Killers Deserve To Die?

by Sherry F. Colb

My Verdict column for this week examines the recent U.S. Supreme Court case of Hall v. Florida.  The Court in Hall invalidated Florida's method for identifying intellectually disabled people for purposes of exempting them from qualification for capital punishment, pursuant to Atkins v. Virginia. Though states retain some discretion in determining how to identify people who are intellectually disabled for these purposes, its discretion is not boundless.  In Hall, the Supreme Court said specifically that if an individual's I.Q. score falls within the Standard Error of Measurement (SEM) of 70, which it understood to include scores of 71-75, then a determination of whether he or she is intellectually disabled must also include consideration of other evidence of intellectual disability, such as impairment in adaptive functioning. 

In my column, I suggest that this decision may represent a majority of the Supreme Court's tonal departure from an attitude of acceptance toward and comfort with the death penalty.  I propose that the Court has begun to identify somewhat with the circumstances of  the condemned (rather than identifying exclusively with the victim and the state), an identification that appears to extend beyond a simple factual consideration of how best to calculate whether a prisoner is or is not intellectually disabled. 

In this post, I want to consider a related question that underlies much of the Court's death penalty jurisprudence:  when does someone deserve to be executed?  This question is implicit in all of the Court's proportionality jurisprudence regarding capital punishment.  The Court has, for example, prohibited imposition of the death penalty for crimes short of murder, such as rape, under Coker v. Georgia, and child rape, under Kennedy v. Louisiana.  One reason is that the Court regards these crimes -- though extremely serious -- as insufficiently grave to merit the penalty of death.  To commit rape or child molestation, on this analysis, is not culpable enough to render a criminal deserving of death.

People who commit murder when they are still minors are likewise ineligible for the death penalty, under Roper v. Simmons.  This is because (among other things) they have not yet reached the age at which their brain development (and the brain's corresponding capacity for impulse control and other expressions of moral agency) enables a level of culpability that would render an actor deserving of the ultimate puunishment.  And in Atkins, most relevant to Hall, the Court made a similar judgment about people who have intellectual disability:  regardless of what they do, they do not possess the capacity for culpability sufficient for them to deserve execution as their punishment.

These rules all represent categorical judgments, and they therefore will ordinarily involve little examination of the particular lives and histories of the criminals whose punishments are at issue.  We do not need to know very much about John Doe to know that he has (a) been convicted of rape, child molestation, or aggravated battery but not murder or (b) been convicted of murder for a crime committed when he was only 17 years old. 

Intellectual disability, however, is different, because it does not quite represent the on/off proposition that the other sorts of disqualifications do.  A person was either convicted of murder or not convicted of murder.  A person had either reached his 18th birthday on the date of his crime or had not.  But intellectual ability is a spectrum on which people fall, and any cutoff will therefore be arbitrary and potentially arguable.

One could, of course, respond that maturity and impulse control also fall along spectra and that there is nothing magical about one's 18th birthday.  Those who are insufficiently mature to deserve death for a murder committed the day before their birthdays are likely still just as immature the following day.  Similarly, determination of a killer's state of mind and whether it qualifies him for conviction of murder or of some lesser offense (such as voluntary manslaughter) can be arguable as well.

The difference, however, is that the magical on/off nature of one's birthday is a thoroughly accepted and well-defined line that has determined legal privileges and disabilities going well beyond eligibility for the death penalty.  People who are mature enough to vote on their eighteenth birthdays, for example, are undoubtedly just as emotionally qualified the previous day, but we rarely question that line anymore, which has become part of our Constitution.  And while difficult judgments must be made to determine that a person has committed a murder, those judgments are largely opaque as a deliberative matter and then ordinarily gain the status of a definitive verdict entitled to deference.

Diagnosis of intellectual disability (and of mental illness, for that matter) is far more fluid and understood to be so.  Such determinations are accordingly often revisited, questioned, and sometimes proven false.  Many of us know of people, for example, who were thought by clinicians to be intellectually disabled but then later turned out to be normal or even quite bright. 

The dimensions along which we judge intellectual disability are such that for many people whose I.Q. scores fall below the normal range, there is some unavoidable uncertainty and unreliability.  The intellectual disability disqualification for execution is thus more challenging than some of the others, as it can potentially require judges to pay attention to the particular individual's life rather than simply looking at a verdict form or a birth certificate to have her ready answer to the death-eligibility question.

It is this complexity and messiness that the Supreme Court welcomed in Hall.  It said that Florida cannot always look at an I.Q. score (or a number of I.Q. scores) and wash its hands of the matter. For people whose I.Q.'s are within a certain range, judges must take a closer look.  And in keeping with that mandate, Justice Kennedy for the majority takes a closer look at Freddie Lee Hall and finds that Hall experienced a grotesquely abusive upbringing, during which his apparent "slowness" triggered great and unrelenting cruelty rather than kindness, even from his own mother.

It becomes much harder to say that a particular killer deserves to be executed, once we have gotten to know something about that killer's early life and its extreme challenges and hardships.  I suggest in my column that Justice Kennedy (on behalf of a majority of the Court) exhibits compassion for the young and innocent boy that Freddie Lee Hall was , the boy who was routinely beaten and hoisted out of bed.  Justice Kennedy may feel that for such a boy who grew up to become a killer, just having to live his life (in prison) might be punishment enough.

For proponents of the death penalty (including the dissenting Justices in Hall), one problem with this sort of thinking is that it could eventually lead a majority of the Court to question the death sentences of many of the killers currently on death row, and not only those who have an intellectual disability.  Many people who become killers have suffered unusually difficult lives in some way -- defined by disadvantages that may have impaired their ability to build impulse control, to learn to care about others rather than seek only  to survive in a hostile world, and to do the other things that make it relatively easy for most people to avoid death row. 

To suggest that such backgrounds might perhaps make a person ineligible for the death penalty would represent an enormous blow to that penalty.  Saying that someone deserves to die is far easier to do when we learn only the gruesome details of the crime that he or she committed and of the suffering that he or she inflicted on a helpless and innocent victim and the victim's loved ones left behind. What the Court in Hall has done is to require, at least in some cases, that a judge look directly at the killer's early years and perhaps consider what was done to him prior to his doing anything to anyone else.  And this requirement is not only going to permit empathy on the part of the jury but may preclude execution altogether.

When we ask "who deserves to die?," we ask an unusual question in the law.  In the criminal justice system, we ordinarily focus on punishing the crime, rather than the criminal.  That is one of the reasons why, for example, evidence law generally prohibits the introduction of "bad character" evidence about the accused in a criminal trial.  But when we decide to execute someone, the law has long included and even mandated a consideration of the individual, at least by the sentencing body, as part of the weighing of aggravating and mitigating factors.  It now may come to pass, in the not-too-distant future, that a very bad beginning -- the sort of beginning that launches many of those who enter a life of crime and an act of capital murder -- will be enough to rule that a killer does not deserve to die.  Whether this will happen, of course, remains to be seen.


Jimmyd said...

FWIW I don't think compassion per se is the best explanation for Kennedy's judicial behavior. With Kennedy in specific what motivates him is a dislike of what he perceives to be "ill will" sometimes he calls this "animosity" and sometimes he refers to the reverse as "dignity" but my sense is that at the end of the day its a /dislike/ of something and rather than the approval of something. We see this play out in lots of different situations, State Farm Vs Campbell, Kennedy v LA, etc. These cases don't exhibit compassion for corporations or child rapists so much as they exhibit a dislike for what he perceives as cruelty.

This might seem rather fine-grained but I think it's essential to the Constitutional analysis. The Constitution prohibits cruel and unusual punishments, it does not require compassion. One can dislike the cruelty of one who punishes excessively without feeling compassion towards the one who is punished. In my view this is the only way to reconcile Hall with State Farm--in State Farm Kennedy gives a nod towards bright line rules because he perceives them as a way to cabin cruelty whereas in Hall he eliminates a bright line because he perceives the bright line as being a tool to inflict cruelty.

Kennedy is an opponent of ill will and not a compassionate justice.

Paul Scott said...

It is too bad Sherry doesn't know J. Kennedy personally or have a really close connection to someone who spent a lot of time with him. If she did, her assessments might prove more accurate.

Peter Gerdes said...

Don't you think you are prejudicing the issue a bit by framing it as who deserves to die. That framing implicitly assumes that executions should be conducted based solely on the features of the criminal (do they deserve it).

Yet most people recognize at least a component of the law is a matter of deterrence. We accept that strict liability laws for crimes like statutory rape will occasionally rope in people who were geneuienly the target of a pervasive campaign of disinformation on the part of a mature looking minor.

However, we accept this rare harm to deter people from behaving carelessly with regard to the age of their sexual partners.

I personally believe deterrence is the only justification for the infliction of any punishment.

Joe said...

As to the last comment, deterrence alone might not be enough, particularly applied to certain punishments. As to statutory rape, that applies in this context too. Such as mental illness.

It might "deter" to punish them when they rape, but at some point, it is deemed unjust to punish those w/o a certain level of guilt. They don't "deserve" punishment. Even if this will in some small fashion hurt deterrence since, e.g., others are somewhat less deterred w/o true strict liability.

Anyway, proportionality, including some degree of "deserve," to me is a factor in proper punishments. Even if deterrence is the only justification. It might not be enough.

Sam Rickless said...

I agree with Peter Gerdes that the issue should not be framed as one of desert. I don't believe that the Constitution says anything about desert, and I don't believe that the function of the criminal law is to mete out deserved punishments. The main function of the criminal law is to protect a host of very basic rights (to life, limb, property, etc.) by assigning penalties for violations of those rights, penalties that function as deterrents. At the same time, I agree with Joe that deterrence can't be all that matters, because in that case there wouldn't be anything stopping us from applying the death penalty as a deterrent against relatively minor infractions (such as stealing a bag of golf clubs). Some principle of proportionality is needed here, but I do not think that it is grounded in facts about desert. (Indeed, I think there is no fact of the matter about whether the golf-club thief deserves three months in jail, or six months, or one year, or whatever.) What we have are intuitions about whether this or that proposed deprivation of liberty is excessive relative to the relevant infraction. This is one of the reasons why the criminal law punishes the crime rather than the criminal, as Sherry says.

Having said all this, it should be noted that intellectual disability is (or, at least, should be treated as) an excuse, not a justification. In this way, it is similar to minor status or duress. Excusing factors have an impact on punishment because threats of punishment do not work as well when excusing factors are present. Long sentences given to excused persons, then, are going to be justified as a way of protecting innocents from potentially dangerous persons who are prone to violating rights and lack the kind of impulse control needed to prevent them from doing so.

Joe said...

I think "cruel or unusual" in some sense at least arguably "says" something about "deserved punishments" if that even in a small way is necessary to determine limits. As long as "desert" is accepted by the population generally, e.g., as a factor, it seems to be an issue to determine if it is "unusual" to punish based on that.

Also, our "intuitions" here for various people, including those who make laws or apply sentences (including in some cases in those states where juries are involved here), include "deserts" in various cases when determining what is "excessive."

This might be wrong as a matter of penological principle or philosophy, but it seems to be an expression of current norms.

Sam Rickless said...

@joe: cruelty need not be read as saying anything about desert: it has to do with excess or arbitrariness relative to some standard, that's all. Unusualness need not have anything to do with whether popular norms invoke desert.

For purposes of understanding and applying the criminal law, we should be looking at the best penological principles, not popular norms that could be infected by who knows what ignorant prejudices.

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