Limitations on Capital Punishment: Diminished Capacity.—The Court has recently grappled with several cases involving application of the death penalty to persons of diminished capacity. The first such case involved a defendant whose competency at the time of his offense, at trial, and at sentencing had not been questioned, but who subsequently developed a mental disorder. The Court held in Ford v. Wainwright136 that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of execution-time sanity must be determined in a proceeding satisfying the minimum requirements of due process.137 The Court noted that execution of the insane had been considered cruel and unusual at common law and at the time of adoption of the Bill of Rights, and continued to be so viewed. And, while no states purported to permit the execution of the insane, Florida and a number of others left the determination to the governor. Florida's procedures, the Court held, fell short of due process because the decision was vested in the governor without the defendant having the opportunity to be heard, the governor's decision being based on reports of three state-appointed psychiatrists.138
In Panetti v. Quarterman,14 the Court considered two of the issues raised, but not clearly answered, in Ford: what definition of insanity should be used in capital punishment cases, and what process must be afforded to the defendant to prove his incapacity. Although the court below had found that it was sufficient to establish competency that a defendant know that he is to be executed and the reason why, the Court in Panetti rejected these criteria, and sent the case back to the lower court for it to consider whether the defendant had a rational understanding of the reasons the state gave for an execution, and how that reflected on his competency.15 The Court also found that the failure of the state to provide the defendant an adequate opportunity to respond to the findings of two court-appointed mental health experts violated due process.16
136 477 U.S. 399 (1986).
137 There was an opinion of the Court only on the first issue, that the Eighth Amendment creates a right not to be executed while insane. Justice Marshall's opinion to that effect was joined by Justices Brennan, Blackmun, Stevens, and Powell. The Court's opinion did not attempt to define insanity; Justice Powell's concurring opinion would have held the prohibition applicable only for "those who are unaware of the punishment they are about to suffer and why they are to suffer it." 477 U.S. at 422.
138 There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that "the ascertainment of a prisoner's sanity . . . calls for no less stringent standards than those demanded in any other aspect of a capital proceeding." 477 U.S. at 411-12. Concurring Justice Powell thought that due process might be met by a proceeding "far less formal than a trial," that the state "should provide an impartial officer or board that can receive evidence and argument from the prisoner's counsel." Id. at 427. Concurring Justice O'Connor, joined by Justice White, emphasized Florida's denial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell's opinion, requiring the opportunity to be heard before an impartial officer or board, sets forth the Court's holding.
14 127 S. Ct. 2842 (2007).
15 In Panetti, the defendant, despite apparent mental problems, was found to understand both his imminent execution and the fact that the State of Texas intended to execute him for having murdered his mother-in-law and father-in-law. It was argued, however, that defendant, suffering from delusions, believed that the stated reason for his execution was a “sham” and that the state wanted to execute him “to stop him from preaching.”
16 127 S. Ct. at 2858.
When first confronted with the issue of whether execution of the mentally retarded is constitutional, the Court in 1989 found "insufficient evidence of a national consensus against executing mentally retarded people."139 In 2002, however, the Court determined in Atkins v. Virginia140 that "much ha[d] changed" since 1989, that the practice had become "truly unusual," and that it was "fair to say" that a "national consensus" had developed against it.141 In 1989, only two states and the Federal Government prohibited execution of the mentally retarded while allowing executions generally. By 2002, an additional 16 states had prohibited execution of the mentally retarded, and no states had reinstated the power. But the important element of consensus, the Court explained, was "not so much the number" of states that had acted, but instead "the consistency of the direction of change."142 The Court's "own evaluation of the issue" reinforced the consensus. Neither of the two generally recognized justifications for the death penalty—retribution and deterrence—apply with full force to mentally retarded offenders. Retribution necessarily depends on the culpability of the offender, yet mental retardation reduces culpability. Deterrence is premised on the ability of offenders to control their behavior, yet "the same cognitive and behavioral impairments that make these defendants less morally culpable . . . also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based on that information."143
139 Penry v. Lynaugh, 492 U.S. 302, 335 (1989). While unwilling to conclude that execution of a mentally retarded person is "categorically prohibited by the Eighth Amendment," the Court did point out that, due to the requirement of individualized consideration of culpability, a retarded defendant is entitled to an instruction that the jury may consider and give mitigating effect to evidence of retardation or a background of abuse. Id. at 328. See also Tennard v. Dretke, 124 S. Ct. 2562 (2004) (evidence of low intelligence should be admissible for mitigating purposes without being screened on basis of severity of disability).
140 122 S. Ct. 2242 (2002). Atkins was a 6-3 decision. Justice Stevens' opinion of the Court was joined by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer. Chief Justice Rehnquist and Justices Scalia and Thomas dissented.
141 122 S. Ct. at 2249.
142 122 S. Ct. at 2249.
143 122 S. Ct. at 2251. The Court also noted that reduced capacity both increases the risk of false confessions and reduces a defendant's ability to assist counsel in making a persuasive showing of mitigation.
So far the Court has not imposed a categorical prohibition on execution of juveniles. A closely divided Court has invalidated one statutory scheme which permitted capital punishment to be imposed for crimes committed before age 16, but has upheld other statutes authorizing capital punishment for crimes committed by 16 and 17 year olds. Important to resolution of the first case was the fact that Oklahoma set no minimum age for capital punishment, but by separate provision allowed juveniles to be treated as adults for some purposes.144 While four Justices favored a flat ruling that execution of anyone younger than 16 at the time of his offense is barred by the Eighth Amendment, concurring Justice O'Connor found Oklahoma's scheme defective as not having necessarily resulted from the special care and deliberation that must attend decisions to impose the death penalty.145 The following year Justice O'Connor again provided the decisive vote when the Court in Stanford v. Kentucky146 held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17. Like Oklahoma, neither Kentucky nor Missouri147 directly specified a minimum age for the death penalty. To Justice O'Connor, however, the critical difference was that there clearly was no national consensus forbidding imposition of capital punishment on 16 or 17-year-old murderers, whereas there was such a consensus against execution of 15 year olds.148
Although the Court in Atkins v. Virginia contrasted the national consensus said to have developed against executing the mentally retarded with what it saw as a lack of consensus regarding execution of juvenile offenders over age 15,20 less than three years later the Court held that such a consensus had developed. The Court’s decision in Roper v. Simmons drew parallels with 21 Atkins. A consensus had developed, the Court held, against the execution of juveniles who were age 16 or 17 when they committed their crimes. Since Stanford, five states had eliminated authority for executing juveniles, and no states that formerly prohibited it had reinstated the authority. In all, 30 states prohibited execution of juveniles: 12 that prohibited the death penalty altogether, and 18 that excluded juveniles from its reach. This meant that 20 states did not prohibit execution of juveniles, but the Court noted that only five of these states had actually executed juveniles since Stanford, and only three had done so in the 10 years immediately preceding Simmons. Although the pace of change was slower than had been the case with execution of the mentally retarded, the consistent direction of change toward abolition was deemed more important.22 As in Atkins, the Simmons Court relied on its “own independent judgment” in addition to its finding of consensus among the states.23 Three general differences between juveniles and adults make juveniles less morally culpable for their actions. Because juveniles lack maturity and have an underdeveloped sense of responsibility, they often engage in “impetuous and ill-considered actions and decisions.” Juveniles are also more susceptible than adults to “negative influences” and peer pressure. Finally, the character of juveniles is not as well formed, and their personality traits are “more transitory, less fixed.”24 For these reasons, irresponsible conduct by juveniles is “not as morally reprehensible,” they have “a greater claim than adults to be forgiven,” and “a greater possibility exists that a minor’s character deficiencies will be reformed.25 Because of the diminished culpability of juveniles, the penological objectives of retribution and deterrence do not provide adequate justification for imposition of the death penalty. The majority preferred a categorical rule over individualized assessment of each offender’s maturity, explaining that “[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.”26
The Simmons Court found confirmation for its holding in “the overwhelming weight of international opinion against the juvenile death penalty.”27 Although “not controlling,” the rejection of the juvenile death penalty by other nations and by international authorities was “instructive,” as it had been in earlier cases, for Eighth Amendment interpretation.28
144 Thompson v. Oklahoma, 487 U.S. 815 (1988).
145 The plurality opinion by Justice Stevens was joined by Justices Brennan, Marshall, and Blackmun; as indicated in the text, Justice O'Connor concurred in a separate opinion; and Justice Scalia, joined by Chief Justice Rehnquist and by Justice White, dissented. Justice Kennedy did not participate.
146 492 U.S. 361 (1989). The bulk of Justice Scalia's opinion, representing the opinion of the Court, was joined by Chief Justice Rehnquist and by Justices White, O'Connor, and Kennedy. Justice O'Connor took exceptions to other portions of Justice Scalia's opinion (dealing with proportionality analysis); and Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, dissented.
147 The case of Wilkins v. Missouri was decided along with Stanford.
148 Compare Thompson, 487 U.S. at 849 (O'Connor, J., concurring) (two-thirds of all state legislatures had concluded that no one should be executed for a crime committed at age 15, and no state had "unequivocally endorsed" a lower age limit) with Stanford, 492 U.S. at 370 (15 of 37 states permitting capital punishment decline to impose it on 16-year-old offenders; 12 decline to impose it on 17-year-old offenders).
20 536 U.S. at 314, n.18.
21 543 U.S. 551 (2005). The case was decided by 5-4 vote. Justice Kennedy wrote the Court’s opinion, and was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice O’Connor, who had joined the Court’s 6-3 majority in Atkins, wrote a dissenting opinion, as did Justice Scalia, who was joined by Chief Justice Rehnquist and Justice Thomas.
22 Dissenting in Simmons, Justice O’Connor disputed the consistency of the trend, pointing out that since Stanford two states had passed laws reaffirming the permissibility of executing 16- and 17-year-old offenders. 543 U.S. at 596.
23 543 U.S. at 564. The Stanford Court had been split over the appropriate scope of inquiry in cruel and unusual punishment cases. Justice Scalia’s plurality would have focused almost exclusively on an assessment of what the state legislatures and Congress have done in setting an age limit for application of capital punishment. 492 U.S. at 377 (“A revised national consensus so broad, so clear and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved.”). The Stanford dissenters would have broadened this inquiry with a proportionality review that considers the defendant’s culpability as one aspect of the gravity of the offense, that considers age as one indicator of culpability, and that looks to other statutory age classifications to arrive at a conclusion about the level of maturity and responsibility that society expects of juveniles. 492 U.S. at 394-96. The Atkins majority adopted the approach of the Stanford dissenters, conducting a proportionality review that brought their own “evaluation” into play along with their analysis of consensus on the issue of executing the mentally retarded.
24 543 U.S. at 569, 570.
25 543 U.S. at 570.
26 543 U.S. at 572-573. Strongly disagreeing, Justice O’Connor wrote that “an especially depraved juvenile offender may . . . be just as culpable as many adult offenders considered bad enough to deserve the death penalty… [E]specially for 17-year-olds . . . the relevant differences between ‘adults’ and ‘juveniles’ appear to be a matter of degree, rather than of kind.” Id. at 600.
27 543 U.S. at 578 (noting “the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty,” id. at 575).
28 Citing as precedent Trop v. Dulles, 356 U.S. 86, 102-03 (1958) (plurality opinion); Atkins, 536 U.S. at 317, n.21; Enmund v. Florida, 458 U.S. 782, 796-97, n.22 (1982); Thompson v. Oklahoma, 487 U.S. 815, 830-31 & n.31 (1988) (plurality opinion); and Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality opinion).
The Stanford Court was split over the appropriate scope of inquiry in cruel and unusual punishment cases. Justice Scalia's plurality would focus almost exclusively on an assessment of what the state legislatures and Congress have done in setting an age limit for application of capital punishment.150 The Stanford dissenters would have broadened this inquiry with a proportionality review that considers the defendant's culpability as one aspect of the gravity of the offense, that considers age as one indicator of culpability, and that looks to other statutory age classifications to arrive at a conclusion about the level of maturity and responsibility that society expects of juveniles.151 As indicated above, the Atkins majority adopted the approach of the Stanford dissenters, conducting a proportionality review that brought their own "evaluation" into play along with their analysis of consensus on the issue of executing the mentally retarded.
150 "A revised national consensus so broad, so clear and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved." 492 U.S. at 377.
151 492 U.S. at 394-96. Justice O'Connor, while recognizing the Court's "constitutional obligation to conduct proportionality analysis," did not believe that such analysis can resolve the underlying issue of the constitutionally required minimum age. 492 U.S. at 382.
Last modified: June 9, 2014