Author: Meghan Ryan


Intellectual Disability and Uncertainty in Hall v. Florida

I’ve been meaning to post about the Supreme Court’s decision last week in Hall v. Florida—the case in which the Court struck down as unconstitutional Florida’s law for determining whether an offender is intellectually disabled and thus cannot be executed. In its 2002 case of Atkins v. Virginia, the Court concluded that it is unconstitutional under the Eighth Amendment to execute a “mentally retarded” individual. (Thankfully, in Hall, the Court switched over to the term “intellectually disabled.” I’ll be using the terms interchangeably in this post.) In Atkins, the Court stated that it was leaving it up to individual legislatures to determine when a person is “mentally retarded”—in the Court’s words, it was “leav[ing] to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Now, other states and the medical community generally agree with Florida that a defendant is intellectually disabled if he has (1) “significantly subaverage intellectual functioning,” (2) “deficits in adaptive functioning,” (3) and “onset of these deficits during the developmental period” (by age 18). The first prong—the one at issue in Hall—is ordinarily determined by a defendant’s IQ score. States have concluded that an IQ score that is 70 or lower meets the “significantly subaverage intellectual functioning” standard. The Hall case raises the issue as to whether uncertainty in obtained IQ scores (or confidence intervals) ought to be included in determining the defendant’s true IQ score for the purpose of this first prong of the intellectual disability test.

In a 6-3 decision, the Hall Court concluded that Florida’s approach—of finding that an obtained IQ score greater than 70 may be determinative of the fact that the defendant is not intellectually disabled—is unconstitutional. In reaching this conclusion, the Court took a detour from its ordinary Eighth Amendment analysis, focusing heavily on the opinions of professional organizations. As in prior opinions, the Court was loose with the numbers in the state-counting aspect of its Eighth Amendment analysis, concluding that a “significant majority of States” have adopted procedures contrary to Florida’s approach. The dissent explains that, of the death penalty states, nine have adopted an approach similar to Florida, nine have not addressed the issue, and twelve take the approach that the Court finds to be constitutionally required. It is difficult to find a national consensus in these numbers. In finding a consensus, though, the majority includes the eighteen states that have abolished capital punishment. Whether to include non-death-penalty states in this calculus is an issue that the Justices have debated before. But the Court’s approach to finding a consensus in this case is especially interesting because of the metric it uses in doing so. Instead of looking at the number of states that have categorically prohibited a punishment—such as tallying the number of states that have banned executing the “mentally retarded,” the “insane,” or juveniles—the Court is counting the number of states that take into account standard errors of measurement (SEMs) in determining whether a defendant is intellectually disabled. This metric accounts for the uncertainty inherent in obtained IQ scores and provides a range in which it’s likely the defendant’s true IQ score falls based upon his obtained score. In examining this metric, the Court frames the question as whether it is unconstitutional for a state to not take into account SEMs in determining whether a defendant is intellectually disabled. But is it really this procedural matter that’s at issue here? Or do we instead care about whether individuals who actually have true IQ scores of 70 or below are being executed? For example, if a state were to conclude that a defendant is intellectually disabled if he has an obtained IQ score of 90 or below, and if the test used in the state has a SEM of 2.5—suggesting that it is quite unlikely that a defendant scoring above 90 on an IQ test would have a true IQ score of 70 or below—would it be unconstitutional for that state’s courts not to take into account the SEM in determining whether a defendant is intellectually disabled? The dissent suggests that another way to probe the uncertainty is to admit multiple obtained IQ scores—a practice the Florida procedures in question allowed. While multiple obtained IQ scores are relevant to determining the reliability of the obtained scores, using this evidence, alone, means working with a fairly small sample size. In Hall, the defendant submitted nine obtained IQ scores, and two were excluded by the sentencing court.

The Court’s decision in this case continues to chip away at the death penalty, albeit quite slowly. The majority’s departure from its traditional Eighth Amendment framework for analysis—a step that is far from new for the Court—injects further uncertainty into the limits on punishments under the Constitution. The Court’s willingness to think more deeply about the methodologies, math, and science underlying some of its decisions, though, furthers the understanding that the meaning of the prohibition on cruel and unusual punishments is evolving. Unfortunately, uncertainty remains about how the Court gathers information about these complicated aspects of law and fact, and how adept the Court is at understanding and employing these concepts.

There is much more that could be said about the Hall case, the Eighth Amendment, and judges’ uses of science and technology, but it has come time for me to sign off of Concurring Opinions for now. Thanks again to the Co-Op gang for asking me to visit, and I look forward to the next time!


Turning Back to Electrocution—Reversing the Eighth Amendment Ratchet?

A few days ago, the governor of Tennessee signed a law providing that scheduled executions could be carried out by electrocution rather than by lethal injection if lethal injection drugs were unavailable. This decision comes on the heels of states like Tennessee struggling with a shortage of lethal injection drugs. Also likely triggering this move are the allegationsthat states’ experimentations with new drugs and drug combinations in carrying out lethal injections are inhumane and constitute cruel and unusual punishments in violation of the Eighth Amendment. It’s understandable that states like Tennessee might try another strategy in carrying out death sentences. Moving to the earlier-practiced method of electrocution, though, is somewhat unexpected. Sure, several states have older methods of execution, like electrocution, as back-ups in case an individual requests it or lethal injection, in general, turns out to be unconstitutional. Alabama law, for example, provides that “[a] death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution.” And Oklahoma law states that “[t]he punishment of death shall be carried out by the administration of a lethal quantity of a drug or drugs until death is pronounced . . . . [but] [i]f [lethal injection] is held unconstitutional . . . then the sentence of death shall be carried out by electrocution.” Providing for electrocution based only on the shortage of lethal injection drugs, though, is unprecedented.

Courts judge the constitutionality of a punishment by the “evolving standards of decency that mark the progress of a maturing society.” While individuals have been punished by death for time immemorial, the method of carrying out this punishment has evolved from hanging, to electrocution, to firing squad, to lethal gas, to lethal injection. New York, seeking a more humane method of execution than hanging, built the first electric chair in 1888. I’ll spare you the details, but electrocution has been described as a pretty gruesome process. This is especially so, at least from the observer’s point of view, when compared with the ordinary process of lethal injection, in which the offender is first sedated and then his involuntary movements are masked by a paralytic. The century-long movement away from electrocution seems to be consistent with the sense that our standards of decency improve from generation to generation. Jurisdictions abandon old methods of punishment as new methods emerge, and the old methods then become unusual in practice and also statutorily unusual.

These evolving standards of decency of the Eighth Amendment have been described as a “one-way ratchet”; once the Court declares a particular punishment unconstitutional, jurisdictions are prohibited from authorizing the punishment, therefore it has no chance to move from unusualness to usualness. Indeed, in oral arguments in Atkins v. Virginia, Justice Scalia suggested that the Court should be extremely careful in determining that a punishment is unconstitutionally cruel and unusual because “once [the Court has] decided that you cannot legislate the execution . . . , there can’t be any legislation that enables us to go back.” Considering that unusualness is essential to the Punishments Clause prohibition, this one-way ratchet idea is also relevant even if the Supreme Court has not officially declared a particular punishment to be unconstitutional. Once a punishment becomes unusual enough, it is at risk of being unconstitutional.

Electrocution has in fact become rather unusual. Only eight of the thirty-four death penalty jurisdictions (and only eight of the fifty-three death- and non-death-penalty jurisdictions) authorize electrocution in any circumstance. And there have been just 158 electrocutions in the United States since 1976. This is in contrast to the 1,204 lethal injections that have taken place during this same period. Electrocutions account for just 11% (158/1379) of the executions carried out since 1976. However, as I’ve suggested before, the Supreme Court’s standard of unusualness is somewhat changeable. Still, it seems that the unusualness of electrocution makes it constitutionally suspect even though the Court has not declared it unconstitutional.

But note that we’ve neglected to measure the cruelty of the punishment. Indeed, the Eighth Amendment prohibits punishments that are cruel and unusual. I’ve argued elsewhere that each of these components is necessary before a punishment is unconstitutional under this Clause of the Eighth Amendment. Indeed, the Court’s assessment of how many jurisdictions employ or prohibit punishment might be considered a measure of unusualness, and the Court’s turn to its own judgment about the punishment at issue might be deemed an inquiry into the punishment’s cruelty. (The first inquiry of unusualness, however, may often be linked to a society’s determination of the punishment’s cruelty as well.) But others view the relevant language of the Punishments Clause as a term of art rather than as a dual requirement. The scope of the phrase is interpreted by looking at a consensus of jurisdictions (and sometimes juries), plus the individual judgments of the nine Supreme Court Justices. Even under this view, though, the unusualness of electrocution is significant in its constitutional fate.

In Baze v. Rees, the Court stated that “capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out.” But does the shortage of lethal injection drugs make what might otherwise be considered an unconstitutional punishment constitutional? If execution could only be carried out by torturous means, would torture become tolerable under the Eighth Amendment? There must be limits to this statement by the Court. Under current constitutional analysis, executions need not be free of pain, but they cannot be carried out by barbarous, outdated methods because more humane methods are logistically difficult. Allowing such a turn back in time would be a reversal of the Eighth-Amendment ratchet that has been said to move in only one direction.


Science, Technology, Judges, and Juries

A study recently published in Science—one of the top scientific journals—terrifyingly explains that “[g]laciers along the Amundsen Coast of Antarctica are thinning” and suggests that the “full-scale collapse” of the Thwaites glacier “may be inevitable.” I don’t want to delve into a debate about whether our Earth is undergoing climate change, or whether any such climate changed is being caused by human activities. However, I do want to talk about the relevance of science to law, and the fact that science, as well as its partner technology, are moving at an incredibly rapid pace.

Questions about the relevance and meaning of science and technology to law can be found in matters ranging from the use of neuroscience to assess criminal culpability or physical injuries, to the use of epidemiological studies to establish causation in toxic tort cases, to the novel liability risks associated with the use of unmanned vehicles. One of the difficulties of employing scientific and technological knowledge in legal matters is that many judges and lawyers are not trained in the nuances of scientific reasoning or the details of understanding modern technology.

I occasionally teach Law & Science courses to judges, and several judges have expressed to me their difficulties in wrestling with science in their cases. This problem of judges trying to understand science is exacerbated when judges are tasked with determining the reliability of scientific evidence under the Daubert standard, which a majority of jurisdictions now use. Some judges try to better understand the science at issue, but they might do this by independently researching the issue. (Perhaps the judicial independent research that has received the most attention is Judge Posner’s “experiment with a novel approach” that he conducted pursuant to deciding Mitchell v. JCG Industries, Inc., where he had the court’s staff don and doff specialized clothing and equipment to determine how long the process took.) This practice may be suspect under the applicable code of judicial conduct, but some judges engage in it nonetheless.

A commonly cited example of judges struggling with technology can be seen in the somewhat embarrassing exchange among the Supreme Court Justices in Ontario v. Quon. In that case a police officer had sued the city, claiming that the police department’s review of his text messages violated the Fourth Amendment. In oral argument, Chief Justice Roberts inquired: “Maybe—maybe everybody else knows this, but what is the difference between a pager and e-mail?” And Justice Kennedy asked what would happen if someone were to text an individual while he was texting with someone else: Does the individual have “a voice mail saying that your call is very important to us; we’ll get back to you?” At least the judges were doing their best to understand the technology at issue, though, before handing down an important opinion on the matter.

On some science- and technology-related subjects that judges decide, there may be other, possibly more qualified decisionmakers available. On some such questions—especially when the science and technology is intermingled with moral determinations—juries are possible decisionmakers. Now juries have a bad reputation with many lawyers. Yes, I’ve seen jurors fall asleep during trial, and I’m all too familiar with some jurors’ focus on details like what kind of shoes a female lawyer wears to court. But juries can offer something that judges cannot. They are ordinarily more representative of their communities than a single judge could be. They serve as a bulwark between the government and the people. They serve to legitimate the law. Through their process of deliberate democratic decisionmaking they can make excellent determinations. Most relevant to decisions involving science and technology, though, juries—by virtue of including more than a single deliberator—can draw on a wide variety of knowledge and experiences. On a jury of twelve, there may be a mother, father, school teacher, engineer, recent college graduate, veteran, victim of assault, retired person, social worker, devout Catholic, plumber, and truck driver. And of course each juror would bring many more characteristics to the table. As a group, then, this deciding body can draw on a broad range of knowledge and experiences. Additionally, jurors often include decisionmakers who are younger than the judges presiding over the case and may be more on the pulse of cutting-edge science and technology. In a case in which a court faces a question such as whether continuous drone surveillance constitutes a Fourth Amendment search because it violates reasonable expectations of privacy, then, a diverse jury might prove to be a better decisionmaker than a judge.


Is the Death of Capital Punishment Nigh?

Thanks, Danielle and the entire Co-Op gang, for having me this month. I cannot promise to be the most uplifting blogger, as one of my primary areas of interest is cruel and unusual punishments, but perhaps I can provide some relief with my other interests—torts and law & science. Today, however, I’m starting with capital punishment.

In the wake of the botched Oklahoma execution, several people have asked me whether this will mark the beginning of capital punishment’s demise. The thought behind this sentiment seems to be that the horror of Clayton D. Lockett—the subject of the botched execution—writhing and clenching his teeth after he was injected with midazolam might convince the general public that capital punishment is just gruesome and no longer compatible with our sense of fairness and justice. While some observers might certainly find this to be the case, here in Texas—the death penalty capital—I’ve heard people express frustration that anyone has shown sympathy toward Lockett. “Why isn’t anyone talking about his victim?” they ask. “Why should we care that he suffered a few minutes of pain after what he did?” While I’ve tried to explain that the Supreme Court has drawn the line of constitutionality at offenders suffering from wanton infliction of pain, and that we should care about what happened in Oklahoma because it could possibly be considered unconstitutional, this legal argument seems to find little resonance with these questioners. And this sentiment of frustration doesn’t emanate from just Texans; I’ve heard the same thing from people all over the country. Still, the botched execution in Oklahoma—and other botched executions—have been successful in placing a spotlight on some of the problems with capital punishment today. Most of the recent concerns with executions stem from European countries’ refusal to provide death penalty states with certain drugs that have traditionally been used to carry out lethal injection. This has led to death penalty states turning elsewhere for drugs, such as compounding pharmacies, over which there is very little oversight, or using more readily available drugs, such as the medazoline that was used in Oklahoma. States’ new uses of drugs seem to be shrouded in secrecy or largely untested, leaving questions as to how reliable they are in carrying out executions and how much pain they may be causing in doing so. But do we really know how much pain lethal injection with the traditional three-drug cocktail (sodium thiopental, pancuronium bromide, and potassium chloride) caused offenders? Just because most states used similar lethal injection cocktails does not necessarily mean that they were the most humane way to carry out the punishment. There does not seem to be a realistic way to objectively measure the pain involved in execution. In fact, one of the drugs used in the traditional three-drug cocktail for lethal injection—pancuronium bromide—was employed to mask the body’s struggle as it descends into death; pancuronium bromide is a paralytic that keeps the offender’s body from flailing and twitching involuntarily as the body is put to death. Paralyzing the offender in this way may make the execution more palatable for observers to watch. It may also mask any errors in sedating the offender before he is killed, as was argued in Baze v. Rees.

Taking a step back, the Supreme Court has never found a particular method of execution unconstitutional. Although the Court has been continuously chipping away at the death penalty, it has done this from the directions of scrutinizing the classes of offenders that may be executed, limiting which crimes may be punished with death, and examining the procedures necessary to sentence an offender to death. In prohibiting capital punishment in some of these circumstances, the Court has looked primarily at (1) objective indicia of a consensus against a particular punishment, and (2) the Court’s own “independent judgment.”

With respect to the first consideration—the “objective indicia”—thirty-two states (plus the federal government and U.S. military) have retained the death penalty. While this does not seem to suggest that a consensus has been formed against the punishment in the United States, the Supreme Court has found such a consensus on less evidence. In Graham v. Florida, for example, the Supreme Court found that a consensus existed against imposing a sentencing of life without the possibility of parole on juvenile non-homicide offenders despite the fact that thirty-nine jurisdictions permitted the punishment for that crime. In that case, the Court focused on the fact that the punishment was relatively rarely imposed in those jurisdictions. In other cases, the Court has said that the “consistency of the direction of change” makes a difference. In Atkins v. Virginia, for example, the Court found it telling that sixteen jurisdictions had moved to prohibit executing “mentally retarded” offenders in the decade or so before Atkins was decided. In comparison, six jurisdictions have abolished capital punishment within the last eight years.

With respect to the Court’s second indicator of the constitutionality of a punishment—its own independent judgment—the Court has primarily looked to the penological purposes of punishment. This is a somewhat unpredictable and malleable inquiry, however, and the Court has also looked to factors as varied as the reliability of the evidence presented in the trial court and the risk of wrongful execution.

One distinguishing characteristic of capital punishment more generally, though, is its enshrinement in the text of the Constitution. It’s mentioned no less that four times, by reference to capital crimes and depriving someone of his life. The Supreme Court has adopted an evolving interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishments, but it seems that the Court could find this textual aspect of the Constitution a difficult hurdle to overcome.