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.