Death-penalty symposium: Evolving standards for “evolving standards”

Dominic Draye is the solicitor general of Arizona, which filed a brief for 16 states in support of the respondents in Moore v. Texas.

In 1952, the Supreme Court took up the case of a soldier who deserted his unit during World War II. As punishment, the soldier lost his citizenship. His challenge to that sanction under the Eighth Amendment’s ban on cruel and unusual punishment launched the current chapter in Eighth Amendment jurisprudence: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

As always, the wake is wider than the vessel. For decades, the Supreme Court and courts around the country have labored to identify the “evolving standards of decency” that classify one punishment as cruel and unusual while permitting another. This project is necessarily vexing, as the standards themselves are defined by their evolution – at least until the Supreme Court acknowledges a standard and thereby prevents any social reconsideration. Moreover, assuming that the amendment’s meaning should change over time, the Constitution does not identify reference points by which courts might gauge society’s standards of decency.

Although the Supreme Court’s decision this term in Moore v. Texas purported to explain how states should determine a person’s intellectual capacity, the real action was just beneath the surface, where the court changed its benchmark for measuring society’s standards. In Moore, the court looked nearly exclusively to the opinions of professional organizations like the American Psychological Association to determine what now transgresses the Eighth Amendment. This deference to professional groups completes a 15-year arc of slowly turning away from the states and their enacted legislation as the gold standard for gauging society’s views. Now the court’s standard for determining society’s standards appears to be the latest guidance for clinicians and medical professionals.

The road from Atkins

The Supreme Court first announced an Eighth Amendment bar to executing persons with diminished mental capacity in Atkins v. Virginia. There, the court described state laws as “the clearest and most reliable objective evidence of contemporary values.” Looking to this standard, the court counted 18 states that had abolished the death penalty for “mentally retarded” persons during the decade and a half following a controversial execution in Georgia in 1986. In addition, the court found evidence of a consensus in the infrequency with which states permitting such executions actually carried them out. The views of professional associations appeared only in a footnote, which they shared with the entreaties of religious leaders, the laws of the European Union, and public opinion polls.

Mental-health professionals ascended from the footnotes to the body of the opinion in Hall v. Florida, and their bearing on the court’s analysis increased correspondingly. Hall, decided 12 years after Atkins, challenged the method by which Florida used IQ tests to determine which convicted killers have an intellectual disability. The five-justice majority explained that enforcing a hard IQ cutoff was inconsistent with the holding in Atkins because mental-health professionals consider a person’s actual IQ to fall within a range around the test score. While relying heavily on mental-health expertise, the court nevertheless couched its analysis in terms of “better understanding … how the legislative policies of various States, and the holdings of state courts, implement the Atkins rule.” The court also returned to counting states, reasoning that 41 states would not deem someone with an IQ score of 71 “automatically eligible for the death penalty.”

But, as the Hall dissent pointed out, the tally here is less clean than in Atkins. The majority’s claim to 41 states rests not on an additive process as in Atkins, but on subtracting nine states that affirmatively shared Florida’s approach from the total of 50. This conclusion only makes sense if the states face a binary choice for how to interpret IQ scores, which is not the case. The dissent therefore parsed the states more finely: Nineteen do not have the death penalty and therefore cannot contribute to a national consensus on interpreting IQ tests for Atkins purposes; 10 do not require the standard-deviation method at issue in Hall; 12 consider that method in some manner; and nine have taken no position. Perhaps in response to this rebuke, the Hall majority ended its survey of states with the defensive note that “Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection.” Thus, although Hall continued the work of counting states and attempted to tether the court’s regard for the views of the APA to the task of “better understanding” what the states have done, the reasoning suggests far less reliance on state law and far more on the opinion of experts. Justice Samuel Alito highlighted this shift in dissent, noting that “prior cases” looked to “the standards of American society as a whole,” whereas the Hall majority turned to “the evolving standards of professional societies.”

By this term’s decision in Moore, state legislatures receive only one mention: a stray observation that none of them has codified the factors for determining mental capacity on which the Texas Court of Criminal Appeals relied. The court did nothing to address a 16-state amicus brief arguing that the petitioner’s request was inconsistent with the consensus on display in state laws. Although the court in Moore offered assurances that states need not adhere to “the latest medical guide,” the absence of any alternative yardstick for assessing society’s standards of decency belies that guarantee. Unsurprisingly, the dissent seized on the court’s failure to consider “the state practices that were, three Terms ago [in Hall], ‘essential’ to the Eighth Amendment question.”

Pros and cons of technocracy

The question presented in Atkins – whether the Eighth Amendment prohibits execution of the intellectually disabled – is a legal issue. Its necessary corollary – who is intellectually disabled – is not purely legal. Because judges are capable of answering legal questions themselves but have little proficiency in identifying which individuals are of such limited mental capacity that they cannot tell right from wrong, an appeal to mental-health professionals for expert guidance is intuitive. Neither Texas nor the amici states in Moore suggested that scientific expertise is unimportant. To the contrary, they would be happy to see all the evidence the APA can muster presented to legislatures across the country. In that setting, lawmakers can weigh competing studies and consider the views of dissenting psychologists, whose opinions are omitted from the final pronouncement by their association.

The disagreement in Moore, therefore, is less about whether experts have a role than about where in the process they should play out that role. As the dissent pointed out, experts are far from univocal. Even on the specific question in Moore – whether “adaptive deficits” must be related to intellectual function – the two leading professional associations disagree. Deciding which opinion to follow is a task better suited to the legislative process than to the judiciary.

Finally, the pivot from tallying states to enshrining the APA’s view as the law of the land solves very little. Academics and practitioners are not themselves unanimous. Thus the court may simply be replacing a process of counting states with one of counting psychologists. Moreover, experts, no less than state legislators, have policy preferences, including non-scientific opinions on the desirability of the death penalty. One need not be a professional psychologist to understand that these preferences will influence a person’s opinion on where to draw the line between individuals who are eligible for a death sentence and those who are not. Above all, mental-health experts routinely reconsider earlier positions. To the extent the court cements their current thinking in precedent, it prevents the very evolution that it claims to serve.

On the other hand, if Hall and Moore simply require reference to current scholarship, then they might allow more reconsideration than Atkins, which takes state legislatures as its reference point. Legislatures, after all, are bound by the court’s decisions and cannot, even if they would like to, return to a formerly prevailing view. This consequence for state legislatures formed the backbone of Justice Clarence Thomas’s dissent in Graham v. Florida, in which he lamented that the effect of judicial decisions is to allow evolution in just “one direction.” But Supreme Court precedent is no bar to clinicians and scholars reconsidering the standard for mental deficiency. Researchers are free to advocate a return to the definition of intellectual disability in earlier editions of the APA’s Diagnostic and Statistical Manual. In this way, their ascent into the role of societal bellwether actually promises more flexibility than reliance on the law-bound states. Whether that flexibility will ultimately track the views of broader society is an open question.

The Supreme Court will surely have future opportunities to reconsider Moore and the trend to which it belongs. As soon as professional associations revise their thinking in a manner that would expand the boundaries of intellectual disability, death-row inmates who would benefit from the new guidelines will immediately raise Eighth Amendment claims. Any of those cases could afford the court an opportunity to return to using the states as the “clearest and most reliable” indicators of society’s standard of decency.