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.
The justices' concern about the constitutionality of these state laws—and the uneven way in which they are applied—sadly comes more than one year too late for Marvin Wilson, a man executed in Texas in 2012 despite the fact that he was patently retarded. It comes too late for John Ferguson, executed earlier this year in Florida despite his belief that he was the "Prince of God." But it may come in time for Warren Lee Hill, a condemned man in Georgia whom officials say they have a legal right to execute even though all of the doctors who have evaluated him agree that he is mentally retarded beyond a reasonable doubt.