Thirteen terms ago, the Supreme Court ruled in Atkins v. Virginia (2002) that the Eighth Amendment’s prohibition against cruel and unusual punishment bars a state from executing a mentally retarded offender. Last May, the court followed up by ruling that states cannot set a fixed IQ test score of 70 as the cutoff to be ineligible for the death penalty on the basis of what is now called intellectual disability. “A rigid rule,” Justice Anthony M. Kennedy wrote for the majority in Hall v. Florida (2014), “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.”
But that was then, and this is now. In the past week, the Supreme Court allowed first Georgia and then Texas to execute condemned murderers who were found by psychiatrists to be intellectually disabled. Lawyers for Warren Hill in Georgia and Robert Ladd in Texas tried up to the final hours to surmount daunting procedural obstacles to get the Supreme Court to stay the scheduled executions, but the justices would not be moved.
For an example of a rigid rule, the justices had to look no farther than Hill’s challenge to Georgia’s one-of-a-kind law requiring a defendant to prove an intellectual disability defense beyond a reasonable doubt. Even before the Supreme Court’s decision in Atkins, Georgia was a lone outlier among the states in requiring a death penalty defendant to prove “mental retardation” by the strictest level of proof in criminal law.
Back then, most states that had specific provisions on the subject required a defendant to establish intellectual disability by a preponderance of the evidence that is, more evidence yes than no. A few states required the higher standard of “clear and convincing evidence” for an intellectual disability defense. After Atkins, some of those states moved to the lower preponderance-of-the-evidence standard. But Georgia left its beyond-a-reasonable-doubt standard unchanged.
Mental health advocates reject that standard on clinical and legal grounds. “The nature of clinical assessment of [intellectual disability], combined with the special difficulties created by the context of a capital trial, will often make the burden of proof imposed by Georgia virtually impossible to meet,” the American Association on Intellectual Development and Disabilities wrote in one Supreme Court brief.
Hill was serving a life prison sentence for the 1986 shooting death of his teenaged girlfriend when he beat a fellow inmate to death using a nail-studded board. He was convicted of capital murder in 1991 and sentenced to death. The Supreme Court in 1989 had refused, on a 5-4 vote, to rule mentally retarded offenders ineligible for the death penalty.
After exhausting his appeals, Hill filed a state habeas corpus petition in 1994 and by 1997 had presented evidence of intellectual disability, including IQ test scores below 70. A lower court ruled Hill was entitled to a jury trial on the issue, but the Georgia Supreme Court disagreed and ordered the judge to decide the issue. Applying the beyond-a-reasonable-doubt standard, the judge found the IQ test scores insufficient evidence because Hill had failed to prove a second factor: a lack of adaptive skills.
After Atkins, however, the judge found the Georgia law unconstitutional under the Supreme Court precedent and ordered new sentencing for Hill. Again, the Georgia Supreme Court came down on the state’s side, finding nothing in Atkins that required Georgia to lower the burden of proof for an intellectual disability defense. In a dissent, the then-chief justice wrote that the Georgia law allowed the state to execute someone who was probably or even “almost certainly” intellectually disabled.
Hill filed a succession of habeas petitions to try to get that state court decision undone, to no avail. His lawyers emphasized that the state’s own experts agreed that he was intellectually disabled, but the state’s lawyers insisted the issue was too late. The Supreme Court repeatedly turned a deaf ear before turning down Hill’s final plea for a stay of execution [Jan. 26], with only two justices dissenting: Breyer and Sotomayor.
The evidence for Texas inmate Ladd’s intellectual disability defense was admittedly weaker: an IQ score of 67 on a test he took more than 40 years ago at the age of 13, but scores above 70 as an adult. Like Hill, Ladd had two murder convictions. In 1996 he strangled and bludgeoned an acquaintance, a mentally impaired woman, while out on parole after serving about one-third of a 40-year sentence for the triple slaying of a Dallas woman and her two children.
In challenging his death sentence, Ladd noted that no jury had ever passed on his intellectual disability defense. Texas has no fixed IQ score cutoff, but it does bar the defense if a defendant shows capacity for advance planning the only state with such an approach. Given the Supreme Court’s stance in Hill’s case, it was no surprise two days later [Jan. 28] when the justices found no basis to stay Ladd’s execution, this time with no justice in recorded dissent.
Together, Atkins and Hall seem to mean that defendants with intellectual disabilities are not to be put to death in the United States and states cannot erect unreasonable barriers to such a defense. But for Warren Hill and Robert Ladd last week, the Supreme Court’s decisions were only words on paper, an empty promise of enlightened justice.