At Last, the Supreme Court Turns to Mental Disability and the Death Penalty

A new case will give the justices a chance to address a compromise that simply doesn't work.
Hill v. Florida is expected to hinge on the opinion of Justice Anthony Kennedy (Damian Dovarganes/AP)

It's about time.

Too late for those already dead, perhaps in time for those still living, the United States Supreme Court has moved at last to clarify the rules state officials must follow when determining whether capital defendants are "mentally retarded"* and thus precluded from execution under the Eighth Amendment. For over a decade, especially in the South, those rules have been manipulated by local officials and judges in ways that undermine the Court's 2002 landmark ruling in Atkins v. Virginia, which banned the execution of the mentally disabled—but permitted states to define for themselves that loaded term.

The justices will reassess this long-neglected area of capital law through a Florida case that illustrates marvelously the extent to which some states will go to execute condemned prisoners, even when those prisoners are manifestly retarded. The Court agreed on Monday to hear Hall v. Florida, a case brought by a condemned man, a convicted murderer, who was declared "retarded" by the Florida courts in 1992 and again in 1999, only to be declared "un-retarded" by the Florida courts in 2009. He claims this violates his constitutional rights. He's right—and the Court should say so.

Indeed, depending upon how the justices vote, Hall v. Florida could be the first step toward an important new constitutional standard for mentally disabled defendants in capital cases. The justices have an opportunity here to establish a universal benchmark that no state may avoid under the banner of federalism or the Tenth Amendment. They also have a chance to put some mettle into their existing precedent.

For what Hall v. Florida surely is—regardless of how the justices ultimately rule between now and the end of June—is an acknowledgment by the justices that their Atkins' "compromise," a landmark constitutional rule combined with a nod to states rights, simply doesn't work. When it comes to capital punishment, to the constitutional struggle between the rights of the condemned and the responsibilities of government officials, the Court simply can't rely any longer upon the tender mercies of those officials.

That it took the justices 11 years to reach this conclusion says as much about them as it does the lower court judges, prosecutors, and other officials who have doggedly sought since 2002 to execute men the Constitution says it would be "cruel and unusual punishment" to execute. Truth is, the problem with the Atkins' compromise was evident on the day it was announced. States can't kill the mentally retarded, Justice John Paul Stevens wrote for the majority, but states can define who is mentally retarded. So, logically, states simply changed their definitions, or applied warped new logic to old definitions, to execute those whom they had wanted to execute in the first place.

Take Florida, for example, and the case of Freddy Lee Hall. Before Atkins, the Florida courts acknowledged that Hall was retarded—that he had been retarded his whole life—but state judges ordered him executed anyway because there was no constitutional rule precluding it. Then, after Atkins, when there was a constitutional rule precluding the execution of the mentally retarded, Florida ginned up a way to conclude that Hall wasn't mentally retarded after all—or at least not mentally retarded enough to spare him from execution. Here, exalting form over function to the bitter end, is Florida's brief asking the justices in Washington not to hear Hall's appeal.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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