In three controversial decisions, the U.S. Supreme Court ruled that states may execute individuals who are mentally retarded as well as individuals who were juveniles at the time they committed the crimes of which they were convicted.
A 1986 Gallup Poll found that 70 percent of Americans approved of capital punishment to deter, incapacitate, and punish violent people convicted of particularly brutal crimes. Public officials may safely predict popular support for most executions, but they often have no broadly shared opinion on which to rely when designating penalties in exceptional cases. Lest they be thought soft on crime, legislators in the United States tend to authorize extensive use of the death penalty and rely on courts to disallow excesses. After a lull in executions in the 1960’s and 1970’s, public opinion, legislatures, and courts concurred on extensive use of the death penalty, a tendency exactly opposite to that of almost all other Western democracies.
The U.S. Supreme Court has mirrored majority support for the death penalty, proscribing few practices. The Court did invalidate many procedures for inflicting death because the procedures allowed too much discretion, but it soon ratified new, improved practices as constitutional. The new practices circumscribed discretion by compelling juries to assess the presence or absence of factors that ameliorated or exacerbated capital offenses. Having disciplined discretion, consistent majorities of the Court have found that death is neither cruel nor unusual punishment in most cases. The Court has been willing to ban capital punishment only if most Americans abhorred application of death to a class of offenders or if the punishment was grossly unfit to achieve any appropriate goals of punishment.
Having lost the general battles, opponents of capital punishment have tried to exempt certain classes of individuals from the death penalty. These abolitionists have argued that execution of retarded and juvenile offenders represents disproportionate and abhorrent application of the death penalty. Youths less able than adults to control their conduct or judge its consequences, and retarded offenders who smile even as they are being sentenced to death should not be treated as fully cognizant defendants, abolitionists argue. Those who cannot or do not anticipate the consequences of their actions and those unable to understand what is happening to them at trial cannot assist in their own defense, these critics point out. One study found that lawyers for 92 percent of retarded defendants failed to raise competence as an issue at trial. The young and the retarded are more vulnerable to threats, coercion, tricks, false promises, and suggestions than adults, thus critics challenge the process that leads to death sentences as flawed and unjust when applied to either juveniles or individuals with mental disabilities.
On June 26, 1989, the U.S. Supreme Court rejected both challenges to capital punishment. In Penry v. Lynaugh, the majority declared that the Eighth Amendment permits execution of retarded persons. In Stanford v. Kentucky and Wilkins v. Missouri, the Court similarly found that death sentences for crimes committed even by those sixteen years old are neither abhorrent nor disproportionate.
Johnny Paul Penry was convicted of the rape and murder of a Texas woman. Penry was mentally retarded, with the ability to learn of the average child of six to seven years old and the ability to function socially of a ten-year-old. Having found Penry competent to stand trial and guilty of aggravated murder, the jurors had to sentence Penry to death if they found that he had acted deliberately and constituted a continuing threat to society. These questions, created to prevent the discretion in sentencing that the Court had previously found “cruel and unusual,” left jurors no opportunity to consider Penry’s developmental disability as an ameliorating or aggravating factor. The jurors sentenced Penry to die.
Justice Sandra Day O’Connor, writing the opinion of the Court, ordered a new sentencing hearing for Penry. She reasoned that trial courts must provide juries an opportunity to consider retardation in sentencing. The trial judge should have told the jurors that they could consider Penry’s retardation in answering the sentencing questions, O’Connor argued. To determine whether Penry committed the murder deliberately, the jurors had to decide that Penry was truly capable of reasonable anticipation of consequences. O’Connor noted the irony that jurors were more likely to find Penry a continuing threat (the second issue) because of his inability to learn. She and the Court majority ruled that the Texas jury must be instructed to take Penry’s mental age into account.
After awarding Penry this temporary reprieve, O’Connor held that execution of the retarded is not inherently “cruel and unusual punishment.” She noted first that it would be cruel and unusual punishment to execute profoundly retarded and insane defendants. That is why, she continued, states provide hearings on competence to stand trial, as Texas had done for Penry. Acknowledging that the American Association on Mental Retardation argues that all retarded persons have reduced blameworthiness, O’Connor said that a majority of the Court did not find the capacities of most retarded people to be so diminished that the Constitution proscribes capital punishment for the whole class. “Mental age,” concluded the majority, is too imprecise a measurement to exempt the retarded automatically. Even retarded defendants thus may answer with their lives for conviction of a capital crime.
Unimpressed with mental age, the Court also judged chronological age no bar to execution in Stanford and Wilkins. Kevin N. Stanford was seventeen years old when he robbed and raped his next-door neighbor, Baerbel Poore, and then shot her to death to prevent her from reporting the crime. He was tried as an adult, convicted, and sentenced to death. The Kentucky Supreme Court rejected Stanford’s plea that he had any right to treatment or rehabilitation and affirmed the death sentence. Heath Wilkins committed a similar crime. He robbed Nancy Allen and, to keep her from identifying him, stabbed her eight times. Although he was sixteen and one-half years old at the time of the crime, Missouri convicted Wilkins as an adult.
Justice Antonin Scalia wrote the opinion of the Court for the two consolidated cases. The only question, he said, was whether execution of convicted murderers who were under eighteen when they committed the murders is “cruel and unusual.” When the Eighth Amendment was ratified, common law treated as adults accused felons over age fourteen and allowed in theory for capital punishment of those over age seven. Stanford and Wilkins were unable to argue that the ban on cruel and unusual punishments originally prohibited executing sixteen- or seventeen-year-olds. Scalia noted as well that nearly three hundred offenders under the age of eighteen had been executed in the United States since the amendment had been adopted. Scalia also reviewed policies in the states and found considerable disagreement concerning whether executing minors is cruel or unusual. Absent an original understanding or developing consensus on the point, Scalia said that the justices could disallow capital punishment in these cases only by imposing the Court’s preferences on the states. The majority, he said, refused to do so.
As O’Connor had done for the retarded in Penry, Scalia acknowledged that adolescents might be less mature and thus less blameworthy for their actions than adults. He found sociological and psychological evidence on that question inconclusive. Given that no scientific findings resolved the matter beyond dispute, state legislatures were free to decide the matter without judicial interference.
The narrow holding in Penry provided opponents of executions only modest solace. In demanding that the judge make the jury fully aware of the range of extenuating, ameliorating, and aggravating circumstances that they should consider before passing sentence on convicted murderers, the majority on the Court stressed their concern that juries’ discretion be disciplined carefully. The Court allowed states to execute retarded persons convicted of capital crimes if those persons are found competent to stand trial but also insisted that the possibly reduced capacity of individual defendants be considered beyond the competency hearing. The Court thus demanded that states instruct jurors to be as merciful as they reasonably can.
Beyond Johnny Penry’s narrow and temporary reprieve, the decisions in Penry, Stanford, and Wilkins signaled death penalty abolitionists that they were running out of ways to circumscribe or delay executions. The Court made it clear that it would not restrain legislatures in most instances. This means that abolitionists would have to induce elected officials to scale back capital punishment, hardly an easy task amid growing crime and fear of crime. Had the Court legitimated greater attention to the reduced responsibility of juveniles, the mentally retarded, or both, opponents of capital punishment might have been able to find analogous instances of diminished culpability. As a result of the Court’s deference to state judgment on blameworthiness, an important tactic for fending off some executions was rendered ineffectual.
In addition, the Court informed legislators and citizens alike that most justices are not interested in the actual practice of capital punishment. In these cases, as in McCleskey v. Kemp
These decisions so constricted the definition of cruel and unusual punishment that virtually any punishments selected by legislatures could pass constitutional muster. Unless penalties were proscribed at the time the Eighth Amendment was written or have become almost universally objectionable since, the Court will find them constitutionally permissible. A majority of the justices interpret legislatures’ silence on the execution of the retarded or the juvenile as acceptance, evidence to the contrary notwithstanding. Indeed, Justice Scalia insisted in Stanford that the only acceptable evidence of consensual abhorrence of a particular use of the death penalty is to be found in statutes. In effect, the Court has frozen the evolution of “cruel and unusual” in the Eighth Amendment.
The justices thus ratified the death penalty as a response to violent crime. The confluence of popular opinion and legislative and judicial decisions sets the United States apart from most Western industrialized nations, where capital punishment has grown less acceptable for decades. Justice Scalia, for example, dismissed evidence of international abhorrence for executions as having no value in assessing American policy. While polls, contentious legislative debates, and fragmented, wavering judicial decisions reveal far more ambivalence on the death penalty than Penry, Stanford, and Wilkins indicate, most Americans entertain doubts about capital punishment only in extraordinary cases. In most instances, the death penalty is alive and well in the U.S. Supreme Court.
Perhaps the most far-reaching impact of Penry, Stanford, and Wilkins concerns judicial instruction of popular thinking about constitutional protections and rights. By removing themselves as a check on the use of the death penalty as a response to increases in violent crime, justices and judges deprive politicians and citizens of the benefits of sober reflection by educated individuals insulated from many of the passions that cloud judgment. The courts often follow the election returns. By following instead of leading the public and the politicians, the courts left this aspect of human rights largely within the political arena.
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Amnesty International. When the State Kills . . .: The Death Penalty—A Human Rights Issue. New York: Author, 1989. Survey of laws and practices concerning capital punishment throughout the world is an excellent source for comparisons among national policies. Reiterates all major arguments against the use of capital punishment. -
Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997. Encyclopedia of capital punishment in theory and practice in the United States features excerpts from landmark Supreme Court cases, major treatises, and statistical studies. Designed as a sourcebook for beginners and citizens but useful as well for most students of capital punishment. -
Berns, Walter. For Capital Punishment: Crime and the Morality of the Death Penalty. 1979. Reprint. Lanham, Md.: University Press of America, 1991. Defense of capital punishment emphasizes the importance of executions as expressions of society’s moral outrage at murders and other violent crimes. Stresses the moral arguments available to proponents of the death penalty. -
Fetzer, Philip L. “Execution of the Mentally Retarded: A Punishment Without Justification.” South Carolina Law Review 40 (Winter, 1989): 419-447. Argues that executing mentally retarded offenders does not deter other violent crime, dramatize moral outrage, protect society, or accomplish any other legitimate social goal. Emphasizes how criminal justice as practiced in the United States does not take mental retardation into account, despite judges’ claims. -
Johnson, Robert. Death Work: A Study of the Modern Execution Process. Belmont, Calif.: Wadsworth, 1997. Very readable introduction to the techniques of execution raises challenging questions about capital punishment. Graphic descriptions may lead even those who are convinced of the deterrent or retributive benefits of the death penalty to ponder whether it is cruel and unusual punishment as practiced. -
Latzer, Barry. Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment. 2d ed. Burlington, Mass.: Butterworth-Heinemann, 2002. Contains excerpts from twenty-five court cases, including Stanford v. Kentucky and Penry v. Lynaugh. Designed as an introductory text. -
Streib, Victor L. Death Penalty for Juveniles. Bloomington: Indiana University Press, 1987. A leading opponent of executing convicted persons under age eighteen presents information and arguments that suggest that killing juvenile offenders advances no legitimate societal goal. -
_______. Death Penalty in a Nutshell. St. Paul, Minn.: Thomson/West, 2005. Provides a clearly written overview of arguments for and against the death penalty. Discusses special topics such as race and gender bias and execution of the innocent. -
Van den Haag, Ernest, and John P. Conrad. The Death Penalty: A Debate. New York: Plenum Press, 1983. Two experts take opposite sides of the capital punishment debate. The result is entertaining, enlightening, and a welcome respite from overwrought rhetoric on both sides of the question. An excellent book for readers new to the subject because it exposes myths used by both sides.
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