Across America, the death penalty is shrinking

June 6, 2014 

Gov. Jay Inslee said Tuesday he was suspending the use of the death penalty in Washington state, announcing a move that he hopes will enable officials to "join a growing national conversation about capital punishment."


Twelve years after it banned the execution of intellectually disabled people, the Supreme Court on Tuesday clarified and thus reaffirmed the essence of its ruling by striking down a Florida law requiring that a defendant claiming that condition show an IQ score of 70 or below.

In 2002, the court held that people with intellectual disabilities were less culpable because of their “diminished capacities” to process information, control their impulses and understand the nature of their crimes. The condition also made them more likely to give false confessions and less likely to be able to assist in their own defense.

But the court left the exact definition of intellectual disability to the states, and some, like Florida, interpreted that to allow for a strict IQ-score cutoff.

Justice Anthony Kennedy, writing for a five-member majority, said that the state’s “rigid rule” violated the Constitution because it “disregards established medical practice” by taking a test score as the final word on a defendant’s intellectual capacity, and by refusing to consider the imprecision inherent in such tests.

His opinion relied heavily on the consensus of mental-health professionals that a diagnosis of intellectual disability depends on both “significantly subaverage” intellectual functioning and major deficits in adaptive behaviors such as self-care and interpersonal skills. IQ is, they say, an approximate measure of intellectual function, and people can be disabled even if they score above 70. Florida, Kennedy noted, did not cite a “single medical professional” who supported the strict cutoff.

Justice Samuel Alito Jr., writing for a four-member dissent, rejected the majority’s trust in what he called “the views of a small professional elite.” The position of groups such as the American Psychiatric Association “often change,” Alito warned, which “will lead to instability and continue to fuel protracted litigation.”

That might be a stronger argument if people’s lives were not at stake. But as Kennedy put it, “Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.”

At its core, the Eighth Amendment’s ban on cruel and unusual punishment protects “the dignity of all persons,” Kennedy wrote, and its application “reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.”

When it comes to the death penalty, that nation is changing. Since the 2002 decision, the court noted, six more states have abolished the death penalty, for a total of 18 plus the District of Columbia. Nowhere is the death penalty being reinstated.

Tuesday’s ruling may not affect more than a handful of cases, and capital punishment’s defenders will always have an argument about why this IQ test or that secret lethal-injection protocol comports with the Constitution. But the tide of history is flowing against them.

The New York Times

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