How to Determine Intellectual Disability for Death Penalty Purposes?

This morning, the Supreme Court decided Brumfield v. Cain, a Louisiana case that raised the question how to determine intellectual disability for death penalty purposes.

The facts are as follows: In 1993, Brumfield murdered off-duty police officer Betty Smothers. The crime, as recounted in Justice Thomas' dissent, was a random, heartless shooting into a car in the process of a "hustle", and can only be explained by Brumfield's antisocial personality--he showed no remorse for it. Moreover, it was the culmination of a horrific two-week-long crime spree.

At the time of Brumfield's trial, there were no constitutional limitations on executing mentally disabled inmates. At the sentencing phase of Brumfield's trial, the Baton Rouge court heard mitigating evidence on Brumfield's behalf: his mom, a social worker who compiled his personal history; and a neuropsychologist who examined him. The court psychologist examined him as well, but did not testify. The evidence, at the time, demonstrated that Brumfield had registered an IQ score of 75, had a fourth-grade reading level, had been prescribed numerous medications and treated at psychiatric hospitals as a child, had been identified as having some form of learning disability, and had been placed in special education classes.

In 2002, years after Brumfield had been sentenced to death, the Supreme Court decided Atkins v. Virginia, in which it ruled that the execution of the intellectually disabled was unconstitutional--a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. In State v. Williams, the Louisiana Supreme Court interpreted Atkins as requiring, for a new hearing to establish a diagnosis of "mental retardation", that the petitioner would have to raise a reasonable doubt that the following conditions might be met:

(1) subaverage intelligence, as measured by objective standardized IQ tests; 
(2) significant impairment in several areas of adaptive skills, which are: (i) Self-care. (ii) Understanding and use of language. (iii) Learning. (iv) Mobility. (v) Self-direction.
(vi) Capacity for independent living); and 
(3) manifestations of this neuro-psychological disorder in the developmental stage.

After Williams was decided, Brumfield, who was in the process of appealing his conviction and sentence, amended his petition to include a request to hold a hearing to establish that his mental capacity fell beneath the minimum required for execution. He also requested funds to help him procure evidence he could present at the hearing. The state court refused his request, and, relying on the original record at the time of his sentencing, stated that there was no evidence, rising to the level of a "reasonable doubt" that Brumfield was intellectually disabled, that justified such a hearing.

The Supreme Court, in a 5:4 decision authored by Justice Sotomayor, sided with Brumfield. The Court argued that an IQ of 75 could, within the margin of error expected of such tests, be consistent with a mental disability. Moreover, contrary to the decision that denied Brumfield's petition, the evidence he presented at the original sentencing hearing suggested significant impairments in several areas of adaptive skills, including language and learning. Not that Brumfield had to positively prove any of these things; all he had to do was show reasonable doubt that they might be true. And given the indications in the original record, he would probably have had a much better chance to prove his disability in a full hearing.

Justice Thomas' dissent, as mentioned above, went in depth into the particulars of the crime and the plight of the victim's family, particularly her two eldest sons (she was a mother of six.) And while the victims understandably are enraged at the victim and his postconviction efforts--are we served, as a whole, by the clinging to dogmatic criteria in identifying who is fit to kill and who is not? Suppose Brumfield's IQ had been 80, not 75--would that really make us more comfortable killing him? Suppose Brumfield's IQ had been 70, not 75--would that have made the victim's family's loss easier to bear?

I'm sure that, for some victims, the prospect of the death penalty provides some closure. But I can think of nothing more demeaning and tiresome for many victims than the need to suffer through decades-long legal quibbles about the minutiae of their loved one's murderer's mental capabilities. The number of executions, even in Louisiana, is in decline. In the last twenty years, they consist of seven executions, the last one in 2010 and the one before that in 2002. Is it really worthwhile to continue tinkering with the machinery of death this way, rather than send convicted murderers, particularly those who might recidivate, to long prison sentences?