Capital Punishment and the Offender

Capital Punishment and the Offender

The cases in the two preceding sections asked what crime the defendant committed, and they answered by withdrawing death as a punishment for rape that does not take a life. A second line of authority asks who committed the crime. Under it, death is disproportionate for a whole class of offenders whose characteristics reduce their blame, and the protection holds even when the crime is murder, the offense for which capital punishment otherwise remains available. Two classes are protected. In Atkins v. Virginia the Court held that evolving standards of decency make it constitutionally impermissible to sentence an intellectually disabled person to death, regardless of the severity of the crime, and in Roper v. Simmons it extended that reasoning to offenders who were under eighteen at the time of the crime.¹

What links the two classes is that the condition lowers a person's responsibility without erasing it. The Atkins Court accepted that intellectual disability does not negate a defendant's culpability, and concluded that it diminishes culpability to the point that capital punishment becomes cruel and unusual.² That step answers the obvious objection that a person who planned and carried out a killing is still blameworthy. The bar concedes the blame and holds that it falls below the level death requires, since execution is confined to the narrow group of offenders whose extreme culpability makes them the most deserving of it. Roper applies the same logic to youth, which is why the two classes are taught together even though the traits differ.³

The Court draws a class-wide line, rather than asking in each case whether this defendant's disability or immaturity reduced blame enough, because of what a case-by-case inquiry would face. The traits that define these classes usually reduce responsibility, so the rare member with full blame is hard to tell from the rule. The evidence of impairment would be weighed by a sentencer looking at a killing that invites the harshest response. A wrong answer is an execution that cannot be undone. A categorical bar accepts that it will occasionally protect someone whose blame was greater than the class average, and in exchange it removes the risk of wrongly executing those who do not meet the standard for death. The trade is a sound one where the penalty is irrevocable.

These bars work differently from the offense-based ones. In Coker v. Georgia and Kennedy v. Louisiana the protection followed the crime, so a defendant who took a life could not invoke it.⁴ Here the severity of the crime does not matter, and a defendant in either class who commits the most aggravated murder is still protected. The reverse also holds: an adult of ordinary intellect convicted of the same murder gets no help from these bars, and the sentence is tested under the general limits on capital punishment. A third limit sits apart from both. In Enmund v. Florida the Court held death disproportionate for a minor participant in a felony murder who neither killed, attempted to kill, nor intended a killing or the use of lethal force, while Tison v. Arizona left death available for a major participant who acted with reckless indifference to human life.⁵ That limit turns on what the particular defendant did and intended, whereas the class bars turn on who the defendant is, so a capital fact pattern calls for checking each.

The frequent mistake with the juvenile class is to measure age at trial or at sentencing, when age at the time of the crime controls.⁶ A second limit on the bars is their scope. They remove the death penalty only. The offense remains punishable, and other sentences for these offenders are tested under their own limits, which later sections take up.

The next two sections take each class in turn, beginning with intellectual disability and the reasoning of Atkins, and then turning to juveniles and Roper.

Intellectual Disability

The facts of Atkins v. Virginia show how an ordinary capital murder case became the vehicle for a categorical rule. Atkins and a codefendant shot and killed a victim during a violent offense, and at the penalty phase the defense presented testimony that Atkins had an IQ of 59 and functioned at the level of a 9- or 10-year-old child.⁸ The jury sentenced him to death, and the Virginia Supreme Court affirmed, rejecting his contention that his disability made him ineligible for execution under Penry v. Lynaugh.⁹ That court said it was unwilling to commute the sentence to life imprisonment merely because of his IQ score, and two of its justices dissented, reasoning that a person with the mental age of a child between nine and twelve is less culpable and that death was excessive for such a person.¹⁰ A note on vocabulary: the opinion itself uses the term "mentally retarded," which was the standard wording when it was written, so a reader of the case should expect the older word.¹¹ This chapter uses the current term, intellectually disabled, for the same class of defendants.

The Supreme Court reversed and held that imposing the death penalty on a person who is intellectually disabled is cruel and unusual punishment, so that such defendants are categorically ineligible for capital punishment.¹² The word categorically carries the weight. The bar attaches to the defendant's status, which means a court does not weigh how heinous the killing was or how a jury might feel about this particular defendant. Once the status is established, death is unavailable whatever the crime. That is the offender-based form of the categorical method, and the Court reached it through the two steps taught earlier in this chapter: objective indicia of national consensus, and then the Court's own judgment about culpability and the purposes of punishment.

The result looks like a change of course, because Atkins confronted a question the Court had answered the other way in Penry. In Penry the Court held that the Eighth Amendment did not categorically prohibit executing persons with this disability, noting that only two States had then enacted laws banning the practice and concluding that the evidence of a national consensus was insufficient.¹³ Atkins applied the same method to a different record. The Eighth Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society, and a claim that a punishment is excessive is measured by the standards that prevail now, not by those of 1685 or of the founding.¹⁴ Because the rule looks to current standards, a change in the evidence can change the answer while the rule stays the same. The Court granted review in part because of the dramatic shift in the state legislative landscape over the thirteen years since Penry, and later decisions describe Atkins in just those terms, as holding that standards of decency had evolved since Penry and now show that such executions are cruel and unusual.¹⁵

The legislative evidence ran in one direction. Since Penry, many States enacted legislation prohibiting the execution of persons with intellectual disability, and no State passed legislation reinstating the power to conduct such executions.¹⁶ Legislation is the clearest and most reliable objective evidence of contemporary values, and the legislatures that took up the question voted overwhelmingly for the prohibition.¹⁷ The absence of any reversal matters because a movement that runs only one way is hard to dismiss as a passing reaction. Had States been adopting bans and then repealing them, the pattern would show disagreement rather than consensus. The evidence also reached the States that still permit execution, where the practice is uncommon and where most require the sentencer to treat the disability as a mitigating factor.¹⁸

Consensus was only the first step, and the Court's own judgment supplied the rest. Persons with intellectual disability are less able to control their conduct, which makes them less deserving of the most severe punishment.¹⁹ The mechanism runs through the purposes of punishment. Retribution measures a sentence against blame, and death sits at the top of that scale, so lower blame removes the justification the penalty most depends on; the Court accordingly found the retributive value of executing these offenders diminished.²⁰ Deterrence is weakened by the same limitation, since a person who has difficulty weighing consequences before acting is less likely to be restrained by the prospect of execution. With retribution weak and deterrence unlikely to work, the Court's independent evaluation found no justification for executing these offenders that overcame the considerations that had led many legislatures to prohibit it.²¹

A separate concern is the accuracy of the sentencing process itself. The risk that death will be imposed despite factors calling for a lesser penalty is greater when the defendant is intellectually disabled, because such a defendant may be less able to give meaningful assistance to counsel, and the defendant's demeanor may create an unwarranted impression of lack of remorse.²² Both problems distort the evidence the jury sees. A defendant who cannot help counsel develop a defense presents a thinner case in mitigation, and a jury that reads a flat or inappropriate demeanor as indifference to the victim may treat the disability as a reason to execute rather than a reason for mercy. Most States already treat the disability as mitigating, but that safeguard runs through the same sentencer whose reading may be skewed, which is why a categorical bar answers the risk better than mitigation evidence alone.

Atkins himself is the clearest case where the bar applies: a capital defendant with an IQ of 59 who functions at the level of a young child cannot be executed, and the Virginia judgment was reversed and the case remanded.²³ The contrasting case is one where the status is absent.

Decided cases draw the same line. In Dickerson v. State a capital defendant who was not intellectually disabled asked the Mississippi Supreme Court to extend Atkins to the mentally ill, and the court declined.²⁴ Defendants with mental illness routinely present it at the penalty phase to persuade jurors against death, so the evidence keeps its force without carrying a categorical effect.²⁵ And because the bar depends on status, a defendant who claims it has to be given a chance to establish it: in Brumfield v. Cain a defendant sentenced to death for murdering an off-duty police officer asked to prove that he was intellectually disabled, and the trial judge's refusal to hold an evidentiary hearing on that request was error.²⁶

The common error is to read the holding as covering any mental limitation that lowers blame, such as mental illness. The decision protects the class of persons who are intellectually disabled. A fact pattern that describes a different condition, or a claim of disability that fails on the facts, is analyzed under the general limits on capital punishment, with the condition offered as mitigation.

Juvenile Offenders

Roper v. Simmons began with a murder committed by a seventeen-year-old. Christopher Simmons was convicted of first-degree murder under Missouri law and sentenced to death.²⁸ The Missouri Supreme Court set the sentence aside in light of Atkins v. Virginia, finding that a national consensus had developed against executing juvenile offenders since Stanford v. Kentucky, and it resentenced Simmons to life imprisonment without eligibility for probation, parole, or release except by act of the Governor.²⁹ The Supreme Court granted certiorari and affirmed. It held that the death penalty is categorically barred for an offender who was under eighteen at the time of the crime, and in doing so it overruled Stanford.³⁰

The ruling displaced a position the Court had held since 1989. In Thompson v. Oklahoma a plurality had concluded that standards of decency forbid executing anyone who was under sixteen at the time of the crime. The next year Stanford declined to go further, because 22 of the 37 death-penalty States permitted the execution of sixteen-year-olds and 25 permitted it for seventeen-year-olds, which the Court read as falling short of a national consensus.³¹ Stanford was decided the same day as Penry v. Lynaugh, the decision Atkins later revisited.³² Roper therefore stands to Stanford as Atkins stood to Penry: the method is the same in each pair, and the evidence it is applied to is what changed.

The Court began with the first step of the categorical method, the objective indicia of consensus. The Missouri Supreme Court had counted eighteen States that barred juvenile executions, twelve more that barred executions altogether, no State that had lowered its execution age below eighteen since Stanford, and five that had raised or fixed the minimum age at eighteen by statute or case law.³³ Practice pointed the same way: since 1989 only six States had executed anyone for a crime committed as a juvenile, and in the most recent ten years only three had done so.³⁴ The two kinds of evidence answer different questions. The direction of change shows where legislatures are heading, and a movement with no State going the other way is hard to explain as a passing reaction. Rarity of use shows how States that still allow the penalty actually treat it, because a punishment that sits on the books but is almost never carried out reflects a community judgment that it is seldom deserved. The Court found this evidence similar to, and in some respects parallel to, the evidence in Atkins, and it added that the number of States prohibiting juvenile executions had grown since Stanford.³⁵

Consensus is not dispositive, so the Court then asked, in its own judgment, whether death is disproportionate for the class. It identified three general differences between juveniles and adults, which together mean that juvenile offenders cannot reliably be classified among the worst offenders, and later decisions repeat them as the premise that children are constitutionally different from adults for purposes of sentencing.³⁶

Each difference lowers blame, but the third reaches the question the death penalty actually asks. Capital punishment is confined to offenders whose conduct reveals the worst character, and a character still in formation makes it less supportable to read even a heinous crime by a juvenile as proof of irretrievable depravity.³⁷

Once diminished culpability is accepted, the two main purposes of the death penalty lose force.³⁸ Retribution matches punishment to blame, and the case for it is weaker with a minor than with an adult because the blame is smaller. Deterrence depends on an offender weighing a possible punishment before acting, and juveniles are less likely to take a possible punishment into consideration; the Thompson plurality made the same observation about offenders under sixteen, finding it unlikely that they engage in the cost-benefit analysis that gives weight to the possibility of execution.³⁹ With retribution and deterrence both applying with lesser force, the Court concluded that the death penalty is disproportionate for juveniles.⁴⁰

The Court drew the line for the whole class instead of weighing each defendant's maturity, and the reason is specific to youth. The hard question in any juvenile case is whether the crime reflects unfortunate yet transient immaturity or the rare irreparable corruption, and the two are difficult to tell apart.⁴¹ A sentencer making that call case by case would do so while looking at a crime grave enough to be capital, which is the setting most likely to push toward a finding of depravity, and the Court had just explained that such a crime is weak evidence of depravity in a juvenile. A mistake in the harsh direction ends in an execution that cannot be undone. The Court also rejected the argument that the death penalty must remain available in every case where it is constitutionally permissible, a point it had already settled in Atkins.⁴² A categorical bar accepts that it may sometimes protect a juvenile whose blame exceeded the class average, and in exchange it removes the risk of wrongly executing one whose crime reflected transient immaturity.

Simmons shows the rule applying: he was seventeen when he committed the murder, so the death sentence was barred whatever the details of the killing.⁴³ Every bright line also has an edge, and the rule's reach ends exactly there.

Foreign practice figured in the opinion, but as confirmation. The Court noted that Article 37 of the United Nations Convention on the Rights of the Child prohibits capital punishment for crimes committed under eighteen, that the United Kingdom abolished the juvenile death penalty in 1930, and that the United States was the only country still giving official sanction to it.⁴⁴ Rulings and practices abroad do not bind the Court on a question of federal constitutional law, though they may offer insight when it is asked to recognize a new federal right.⁴⁵ The holding rests on the domestic consensus and the Court's own judgment about culpability, and the international material shows that the result is consistent with views elsewhere. An answer that treats international practice as the ground of the holding reverses that order.

The three differences have a life beyond Roper. Later decisions restate them as the premise that children are constitutionally different from adults for purposes of sentencing.⁴⁶ Graham v. Florida relied on the same differences to hold that the Eighth Amendment also bars life without parole for a juvenile who did not commit homicide, which carries the categorical method past the death penalty.⁴⁷ The next section takes up that case.