0:00:02.0 Speaker 1: We'll hear argument next in number 008452, Daryl Renard Atkins versus... Spectators are admonished. Do not talk until you get out of the courtroom. The court is still in session.

[music]

0:00:21.0 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Atkins v. Virginia, a 2002 decision, which the Supreme Court held that it is unconstitutional to execute people with intellectual disabilities, however, the court created a loophole by leaving it up to the states to determine who qualifies as intellectually disabled. As a result, executions of intellectually disabled people continue to this day in many states.

0:00:53.4 Speaker 3: Mr. Hill is only at risk of being executed because he is in Georgia.

0:00:58.3 Speaker 4: Texas has adopted a unique approach to intellectual disability, in which it prohibits the use of current medical standards.

0:01:06.8 Speaker 5: There are a lot of people that believe that the IQ test is not a good indicator of mental capacity, or ability to do something intellectually.

0:01:16.0 Leon: This is 5-4 a podcast about how much the Supreme Court sucks.

0:01:25.2 Peter: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have pecked away at our civil rights like a nervous bird plucking at its feathers. I am Peter. I'm here with Rhiannon.

0:01:37.9 Rhiannon: Hey.

0:01:38.8 Peter: And Michael.

0:01:39.8 Michael: Hey, everybody.

0:01:41.0 Peter: How is everyone doing? We good?

0:01:42.6 Michael: Yeah, yeah, we're good.

0:01:44.4 Peter: Okay.

0:01:45.1 Michael: You know, it's an early recording, so I'm drinking a Bloody Mary.

0:01:48.3 Peter: Sure, of course.

0:01:48.8 Rhiannon: Aha. Right.

[laughter]

0:01:53.3 Michael: Good morning, Sunday morning, everybody.

0:01:55.1 Peter: That's right. Yeah, we are... We'll be releasing this in like little over a week, but we're recording on Super Bowl Sunday, baby, the big day.

0:02:04.8 Rhiannon: How are you feeling Peter?

0:02:05.9 Peter: Good, I'm feeling good. Real heads know I'm a Chiefs fan. So big day. Obviously the outcome of the game will be known by the time this is out. I'll just record reactions to both right now. If we win fuck yeah, baby. Fuck yeah. A dynasty. Alright? Two in a row, baby. Who's gonna fucking stop us. Okay? Patrick Mahomes, greatest of all time, unquestionable.

0:02:31.1 Rhiannon: Patrick Mahomes for king.

0:02:34.8 Peter: If we lose... Look, I'm not a big sports guy. I mean, I've always been more of an intellectual.

0:02:43.6 Rhiannon: You dabble in the commoners past time.

0:02:46.1 Peter: Sure. I watch some football here and there, but yeah...

0:02:50.7 Michael: The way the league treated Kaepernick, man, it's hard to get excited.

0:02:54.9 Peter: It is. And the concussions. I don't if morally I can get behind it.

0:02:57.5 Rhiannon: Yeah, awful.

0:03:01.2 Peter: Alright, today's case is Atkins v. Virginia. This is a case about the execution of the intellectually disabled, which we're gonna go on record as saying is not good, not a fan of the death penalty generally, but the more intellectually disabled the person is, the less of a fan I become.

0:03:21.8 Michael: It's like a direct correlation. The graph is easy to draw.

0:03:26.5 Peter: Yeah. As the conservatives would say, I'm a real Snowflake about stuff like this. [chuckle] The Eighth Amendment of our Constitution forbids cruel and unusual punishment. At some point, some enterprising young lawyer said, "Hey, it seems pretty cruel to execute people with lower levels of cognitive function, like maybe that's unconstitutional." For many years, the court disagreed saying that the execution of the intellectually disabled was in fact constitutional, but finally in this case, in 2002, the Supreme Court said actually executing the mentally disabled is unconstitutional. Great outcome.

0:04:04.2 Michael: The Supreme court is good again.

0:04:07.2 Peter: Yeah. Thanks for joining us.

0:04:08.8 Rhiannon: All done. [chuckle]

0:04:10.6 Peter: Except in the process of saying this, they actually created a massive loophole. They said that states cannot execute the intellectually disabled, but they left it up to the states to determine what it means to be intellectually disabled. So rather than outright ban the practice what the court did was essentially allow states to define what the practice is, which as we will discuss, is sort of like not banning it at all. This is a good example of the courts taking half measures and tip-toeing around its responsibility to the citizens in the name of a sort of misguided view of judicial restraint. This was an opportunity for the court to do something simple to protect vulnerable people, but instead they just let their lawyer brains infect their souls and stop themselves just short of doing something truly good.

0:05:04.3 Michael: And I wanna lay down a marker before we get started about my definition of intellectual disability, and it's very clear, it's like anybody who even slightly disagrees with me on Twitter. That's it. It's a bright line, it's not hard. Clean cut-off.

0:05:20.3 Peter: You're creating a catch-22 where you can't execute them.

0:05:24.5 Michael: That's... [chuckle]

0:05:27.6 Peter: Alright, so there's like a fascinating legal history behind challenges to the death penalty. They only really like grab significant traction in the Supreme Court in the past half century or so. So many people had argued that the death penalty either in of itself or in its various iterations, violates the Eighth Amendment's prohibition of cruel and unusual punishment, and this movement picked up some steam in the mid-1900s when research began to show that killing people is bad after centuries of uncertainty. And in 1976, there's a case called the Greg v. Georgia, where the Supreme Court upholds the death penalty under the Constitution, but after that, there are many fights about the details and activists and civil rights attorneys began to challenge the application of the death penalty in certain circumstances. So the Supreme Court strikes down the death penalty for rape in 1978 saying that it has to be murder, and in 1986, the court forbids the execution of people who were determined to be "mentally insane." In 1988, the court struck down the execution of offenders who are under the age of 16 at the time of their offense, but the very next year, they held that a person could be executed if they were 16 or above. So the official position of the Supreme Court on killing kids in the late 1980s is, some of them, yeah.

[chuckle]

0:06:53.5 Peter: So there's some back and forth going on at this time, not coincidentally around the time when you really start to see considerable research into not just criminal psychology, but the broader impacts of criminal punishment. A quick note here about what the court is getting at in these cases overall, they're trying to go away from blanket prescriptions of the death penalty and move towards a case by case sort of analysis. There is a case called Woodson v. North Carolina in the '70s, that was about the mandatory application of the death penalty for first degree murder, so everyone would get it. If you committed first degree murder, you were convicted, you would get sentenced to death and the court rejected that saying, "No, no, no, you have to look at the details. You have to do an individualized assessment, it's case by case." And they were sort of pushing that theme throughout their cases, you have to look at the details of every case.

0:07:48.2 Peter: In 1989, there is a case called Penry v. Lynaugh where the court held that it was not unconstitutional to execute an intellectually disabled person. And throughout the '90s, you sort of see this issue go away at the Supreme Court level, not a lot of cases about the death penalty. But that changes in the early 2000s as we get to this case, Atkins v. Virginia. One thing to note about this decision, it's from 2002, but the court uses antiquated language, so now we're gonna use the term intellectually disabled or cognitively limited or all the cool woke shit 'cause we're woke as hell. But the court uses the term mentally retarded, which was the prevailing term at the time, so we might be quoting them at times throughout this episode using that language. Just wanted to sort of flag that. So Rhi, if you wanna give us some background here.

0:08:44.5 Rhiannon: I got the background for you. So we'll talk about the underlying facts of the case, the facts of the murder that happened, that brings a capital murder trial to court, but also a little bit about what is presented at that trial and getting into some evidence of intellectual disability. So this case originally the events happen in August 1996, this is in York County, Virginia. And 19-year-old Daryl Atkins and his friend William Jones had spent the day together drinking and hanging out, and they headed to a convenience store in the evening, allegedly looking for more money to buy beer. They may be pan-handled for a little bit at the convenience store, they hung around for a bit, had conversations with a few customers, but then as 21-year-old Eric Nesbitt left the store, Mr. Atkins and Mr. Jones forced themselves into Mr. Nesbitt's truck, they steal $60 from Nesbitt's wallet, and then they have Nesbitt take $200 out of an ATM. After that, the evidence shows that they drove to a secluded area and shot and killed Eric Nesbitt. Now, Mr. Atkins and Mr. Jones go to trial separately, and at his trial, Mr. Atkins attorney presented school records that showed that Mr. Atkins had never performed well in school, and they also showed the results of an IQ test carried out by a clinical psychologist that confirmed that Mr. Atkins had an IQ of 59.

0:10:18.5 Peter: Woo, that's a low one.

0:10:20.1 Rhiannon: Low AF, that's a low one. But at this time, there was no law in Virginia that prohibited giving the death penalty to someone with intellectual disability, so the jury came back with a death sentence for Mr. Atkins.

0:10:32.7 Peter: The jurors also had IQs of 59 though.

[laughter]

0:10:35.7 Rhiannon: Oh my God.

[laughter]

0:10:40.2 Rhiannon: After that first trial, the Supreme Court of Virginia reversed the sentence because they found that the jury had used an improper verdict form, it wasn't because of any reason relating to intellectual disability, it was sort of a technical reason. So Mr. Atkins had a re-trial just on sentencing, just on whether he would get the death penalty or not and during that proceeding, the state, the prosecutors introduced their own psychologists who rebutted the evidence of Mr. Atkins intellectual disability. And so again, the jury returned with the death sentence. And a side note, one day, you people are gonna let me do a whole episode about how the field of medicine just like law is full of quack ass unethical monsters who graduate from supposedly elite schools, only to turn around and enact harm on everyone, but I guess today is not the day.

0:11:30.4 Peter: Yeah, that day might not come.

0:11:32.4 Rhiannon: Shut up Peter.

0:11:33.2 Peter: I don't know if we can do a whole episode.

0:11:35.1 Michael: Rhia and I will do our own little offshoot pod.

[laughter]

0:11:37.3 Rhiannon: Yeah. People I don't like who are doctors.

0:11:41.2 Michael: This is what we do at Patreon, Rhiannon's gonna get high on Twitch and just talk about this stuff.

0:11:47.2 Rhiannon: That's right. Yeah.

0:11:48.0 Michael: And it's gonna get crazy numbers.

0:11:52.1 Rhiannon: I can't wait.

[laughter]

0:11:53.7 Rhiannon: So Mr. Atkins case goes to the Supreme Court after he's re-sentenced to death, because his attorneys are appealing under the Eighth Amendment. Their argument is that even if someone is guilty of murder, if that person is intellectually disabled, punishing them with execution is cruel and unusual punishment and that should be banned by the constitution.

0:12:15.2 Peter: So the question before the court in this case is whether executing an intellectually disabled person is cruel and unusual, and how the court generally analyzes what is cruel and unusual punishment is by surveying the moral attitudes of the time, in large part by reviewing state laws across the country. So the court says, "Look, in 1989, we held that executing an intellectually disabled person did not violate the constitution." But things have changed. Since then, many states have passed laws that say that you can't do it and we've reached a point where a majority of states either ban the death penalty outright or ban it against intellectually disabled people specifically. There's also been a shift in laws internationally, a shift in attitudes among experts, and a shift in the attitude of the general public. And that shows that these social tides have shifted and society now rejects this practice. So we can safely say that it's unconstitutional.

0:13:14.7 Peter: Before we go on, it's important to point out that historically, the court has been very scared about how to analyze the term a cruel and unusual punishment. It's a vague term that can mean different things to different people, and so in order to avoid judges having to use their own opinions about what is cruel and unusual, the court settled on this idea of surveying the laws across the country. And then they count the states that have laws against it and count the states that don't, and they try to figure out what the national consensus is. If that sounds just absolutely dumb as shit to you, yeah, gold star, I agree.

0:13:51.1 Rhiannon: [laughter] Good job, you're awake. [laughter]

0:13:52.5 Peter: We'll talk about this shortly and in a little more detail, but I just wanna point out what they're doing here. And so well and good in this opinion so far. They're saying that the opinions on this have shifted and we're at a point where now society agrees that this is cruel and unusual. But then, in what's a throw-away line in the opinion, they say, look, we leave it to the states to determine what it means to be intellectually disabled, which is a pretty big loophole.

0:14:19.9 Rhiannon: [chuckle] Yep.

0:14:20.8 Michael: Yes.

0:14:21.3 Peter: It's worth noting that the Commonwealth of Virginia here, is not simply saying that they should be able to execute Atkins despite the fact that he has an IQ of 59, they're saying, Well, no, he's not really intellectually disabled, which is important because it shows that you just can't trust the states on this shit.

0:14:38.5 Rhiannon: Yeah, exactly.

0:14:40.6 Michael: Yeah, absolutely not.

0:14:40.7 Rhiannon: And there's a lot to criticize about the dissents in this case, which we'll get to in a minute, but this throw-away line is like the most important part of this holding in terms of practical consequences after the Atkins decision is handed down. This will have major horrific consequences on the administration of the death penalty for years until the Supreme Court is forced to take up the same question again and clarify this rule, and we'll talk about that a little bit later too. But in the majority here, John Paul Stevens says States can figure out what their standard is for proving intellectual disability, but you have to realize this is putting the power in the hands of the states that want to execute people. States are not inclined to be over-inclusive in this category of who is intellectually disabled, they're not going to air on the side of protecting people, they want to execute people. So from jump, the immediate consequence of this decision is different standards for determining intellectual disability across the states, and in terms of the Supreme Court ruling at various times throughout its death penalty jurisprudence, that something that states should be eliminating in death penalty administration, is arbitrariness. This standard completely allows for and in fact, encourages arbitrariness because states are gonna come up with different standards.

0:16:05.0 Rhiannon: And of course, some states are immediately trying to circumvent this ruling when the Atkins decision is handed down, by adopting narrow or not even medically sound definitions of intellectual disability because they wanna permit execution of some people who meet the clinical criteria for intellectual disability that at the time were already uniformly followed in the medical community. So for example, in Florida, after this decision, Florida adopted a rigid standard. They required an IQ of 70 or below to demonstrate intellectual disability with no allowance for margin of error in that measurement. So there's a real case example of the effects of this. Before the Atkins case, a Florida court determined in the case of Freddie Hall, a death row petitioner who was first diagnosed with intellectual disability in elementary school, that Freddie Hall had been intellectually disabled his entire life. After Atkins, the Florida Court rejected Mr. Hall's claim of intellectual disability on the grounds that some of the time when his IQ had been measured, he had tested above 70. So you see how the Atkins decision changed the standard enough so that Florida was exempting from the death penalty, fewer people than it had before.

0:17:30.6 Rhiannon: In Texas, the state of Texas adopted horrifically on scientific standards for determining intellectual disability in a Texas case called Briseno, the high court in Texas adopted what were later called these Briseno factors, and these were a set of lay stereotypes to determine whether someone on trial for capital murder could qualify for a finding of intellectual disability. These factors included whether people who knew the person best thought that he or she was intellectually disabled? Just this person's family member?

0:18:05.8 Peter: Well, what would his friends say? Can we kill this guy? [chuckle]

0:18:07.6 Rhiannon: Right, exactly. The factors also included, if a person can answer questions, whether a person can make and execute a plan, whether a person can lie effectively. I mean, side-note, I hope that it doesn't even need to be said, but people with intellectual disability can often answer questions, they can lie...

0:18:27.7 Peter: Only someone who is literally in a coma could fail this.

0:18:31.3 Rhiannon: Right, exactly, exactly. In this Briseno case, as an example of an individual that people would agree is intellectually disabled, the court in Texas cited to Lennie the fictional character in Steinbeck's "Of Mice and Men," they're pointing to a fictional example of someone who is intellectually disabled.

0:18:51.9 Peter: Alright, factor number one, is he good at ping pong?

[laughter]

0:18:55.7 Peter: Factor number two, has he ever run across the country?

[laughter]

0:19:00.7 Peter: Okay, factor number three, has he ever compared life to a box of chocolates?

0:19:06.3 Rhiannon: [laughter] That's really right, yeah, and so, important to note, people were executed under these unscientific standards. Studies show that in the post-Atkins period, there were wide variations among states in exempting people with intellectual disability from the death penalty. So for example, from 2002 to 2013, less than 8% of death row inmates or capital defendants even raised claims of intellectual disability, so there aren't a lot of people claiming this, but the total success rate for those claims was 55%. In North Carolina the success rate just in their state was 82%, in Georgia the success rate for those claiming intellectual disability during this time period was 11%, and in Florida, it was zero. So again, just highlighting the arbitrariness.

0:20:00.5 Peter: Fascinating. You can get 0%.

0:20:02.8 Rhiannon: Nobody is found intellectually disabled in Florida who potentially...

0:20:06.0 Michael: Crazy how great their prosecutors have been at avoiding seeking the death penalty for people with intellectual disability. It's just another example of Florida being like the model of criminal justice.

0:20:17.7 Rhiannon: Yes.

0:20:18.6 Peter: I do wanna bring something up. Obviously, prosecutors have a vested interest in showing that these people are not intellectually disabled, not just in terms of their careers, but in terms of what they perceive themselves to be doing, because if you concede that someone is intellectually disabled, you are then conceding that you have prosecuted this person and put them in prison for life, which is the alternative to the death penalty, despite the fact that they are cognitively functioning at an extremely low level. That's not something that's easy to admit to yourself that you're doing. Prosecutors convince themselves that the people they are prosecuting are monsters, and that's how they sleep at night. I'm not trying to cast incredibly broad moralless versions, it's just sort of an obvious psychological truth about how they get by.

0:21:01.2 Rhiannon: Right, exactly, no, that's just the basis, if as a prosecutor, you think you are doing justice, you convince yourself that the people you're prosecuting are deserving of these extremely harsh punishments, and the whole point that's at the foundation and throughout these opinions at the Supreme Court, and this debate in general, is that somebody who is intellectually disabled is not deserving of a harsh punishment because they have lower moral culpability, and that kind of thing which of course we'll talk about later.

0:21:31.3 Michael: And just... It's worth saying explicitly, it's not the way IQ tests work, the way Florida is applying it here. There is maybe some very early life intervention periods where you can improve somebody's IQ scores, but for the most part, once you're like five or six or whatever, it's stable. It is what it is. It might fluctuate a few points here and there because of margin for error, but it is what it is. You either are or you aren't. You don't slip in and out of intellectual disability, throughout your life.

0:22:05.2 Peter: You never wake up feeling, I'm intellectually disabled as fuck today.

0:22:10.5 Rhiannon: Exactly. And there are clinical standards that go into the assessment for intellectual disability that are more than just the IQ score, so even if somebody scores slightly higher than 70 on an IQ test, there are still many factors that there's medical consensus on that should be taken into account for determining if somebody is intellectually disabled.

0:22:29.7 Michael: Absolutely. Emotional regulation...

0:22:31.9 Rhiannon: Totally.

0:22:32.6 Michael: Adaptive behaviors. And there's all sorts of stuff.

0:22:34.9 Rhiannon: Exactly. So just to wrap up on sort of the practical consequences of Atkins, states that significantly deviated from accepted clinical methods for determining intellectual disability, those states being Florida, Alabama, Georgia, Texas especially, those states had the lowest success rate for people who were claiming intellectual disability to exempt them from the death penalty.

0:23:00.2 Peter: Yeah. So there are two dissents here, both of them are upset about the good part of this holding that executing the intellectually disabled is unconstitutional.

0:23:11.5 Michael: That's right. The first dissent is from William Rehnquist, hated pod enemy, well-known white supremacist.

0:23:19.6 Peter: Segregationist.

0:23:20.6 Michael: Yes. [chuckle]

0:23:21.6 Rhiannon: Well-known dead person.

0:23:22.8 Michael: Yes, that's right. So he's saying, "Look, yeah, the majority is engaging in this wide-ranging inquiry into what contemporary social values are, and that's because to determine what is cruel and unusual, there's black letter case law in the Supreme Court that says that the baseline for what's cruel and unusual is contemporary social values, it's contemporary social mores, it's what we in the modern day think is cruel and unusual."

0:23:54.3 Rhiannon: Right, that's what the test is for what is cruel and unusual under the Eighth Amendment.

0:23:58.7 Michael: And so the majority is engaged into this inquiry where they're looking at all sorts of sources to figure this out. They are looking at foreign laws, and they're looking at medical journals, and they're looking at public opinion polling, which makes sense, you wanna know what the public thinks, you ask the public. And Rehnquist says, "This is all wrong." He says, "You shouldn't be using any of this shit." And especially on public opinion polling, he says, "Look, we don't even know how scientifically rigorous any given opinion poll is. So who knows how accurate it is?"

0:24:31.3 Rhiannon: God.

0:24:31.7 Peter: Yeah, fucking PhD in Statistics over here.

[laughter]

0:24:35.7 Michael: I just wanna start with that because he's saying directly measuring public opinion is not an acceptable method for ascertaining public opinion, which has to be one of the dumber things ever put down on paper in the Supreme Court reporters. It's unreal how stupid it is. So what he says is, "Look state legislation is the "clearest and most reliable" evidence of contemporary values," but that's just... That's false. First of all, a lot of people don't know what's in their state laws, it's often a lagging indicator, if people have to like... After they come to a consensus, they have to petition their representatives and elect new ones and blah, blah, blah. But setting aside all that shit and how often we've seen evidence of opinion polling differing from the status quo of the law since Rehnquist was in trust opinion polling, we have documented cases where the voters fight directly with the legislature...

0:25:38.3 Rhiannon: Absolutely.

0:25:39.1 Michael: Via referenda. Florida recently... We've talked about this on the pod, they passed a referendum in franchising former felons by a huge number, over a million people enfranchised, and the legislature immediately gutted it and left like 800,000 people disenfranchised. In 2000, Arizona citizens passed a referendum mandating that redistricting be done by an independent commission to prevent gerrymandering, and the state legislature fucking sued that independent commission in federal court and took it all the way to the Supreme Court saying, "You can't do that." Literally suing their own people about their referenda. It's just wrong to say that state legislation is a reliable indicator of the people's values. So he's wrong about that. But even setting that aside, his opinion is just so sloppy and so dishonest. So he says the majority comes out the way it does, because "18 states recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone," despite the fact that the laws of 19 other states continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries. Now, I know what you're thinking, 18 plus 19, so that just 37?

[laughter]

0:27:02.9 Michael: First grade social studies was... That was a long time ago, but I could have sworn there were more states than that. I'm confident, I'm looking at a flag right now, and there are a lot of stars on it, it looks like way more than 37 States. So he's skipping over the fact that 13 states banned the death penalty entirely. It's actually 31 states that prohibit the execution of the intellectually or developmentally disabled, and that's a majority. And even beyond that, he's not even doing any effort at waiting, like how much population do those 19 states represent, right? 'Cause the Dakotas and Nebraska and Idaho and shit, 19 states could easily only come out to like 20% of the population. So he does a shit job of this top to bottom, Rehnquist does. But I also wanna say this approach to his opinion is closer to legislating from the bench, than the majorities approach. Say what you will about the individual metrics the majority uses, but they're actually engaging in a serious effort to ascertain contemporary social values, they're saying, the Constitution, which in this case, is supposed to be restraining excessive punishment levied by the states, has to mean something more than the sum total of those laws in the States that it's supposed to be restrained.

0:28:28.9 Michael: And Rehnquist doesn't want anything to do with that. He's just engaging in a sort of meta-legislating. He's saying, "Look, all we have to do is conduct a comprehensive nationwide 37-state survey, and whatever the majority of those 37 states says, goes."

0:28:46.8 Peter: Rehnquist is also mad that the court gives weight to the opinions of organizations like the American Psychological Association. He says that to use their opinions is for the court to work "At the behest of private organizations," which yeah, I'm sure that's a real big concern of the conservatives on the court, that the court is doing the bidding of private organizations. What he really means is, These goddamn libs in the American Psychological Association. Conservatives have a known skepticism about expertise. And so when you see this stuff get brought up, it's bigger than just this case, there's a big culture war component. They hate these big professional organizations because they perceive them as liberal.

0:29:31.7 Michael: That's right.

0:29:32.1 Rhiannon: Even when they're doctors.

0:29:33.8 Peter: Alright, and now we get to Antonin Scalia's descent. Another pod favorite, good friend.

0:29:39.5 Rhiannon: Oh, God.

[laughter]

0:29:41.2 Peter: Scalia is extremely mad because he believes that all the liberals do in these cases is just interpose their own personal opinions and emotions. So the first thing he does is write a full accounting of the Atkins murder that is fairly plainly designed to make Atkins seem as evil as possible, thus proving that Scalia is not driven by his own personal opinions or emotions.

[laughter]

0:30:05.6 Rhiannon: Right, aha. Hey Justice Scalia, it seems like you just spent some time screaming into a pillow, you okay?

[laughter]

0:30:12.1 Peter: Every conservative death penalty case... 'Cause death penalty cases are about murders, and usually like a relatively gruesome murder, there's something particularly bad about it that warranted the death penalty and so conservatives will always walk through it like, "You believe this asshole? This guy's a dick." Because they're not trying to do some sort of really nuance analysis. They're like, "This is a bad guy." What does society do with bad guys?

0:30:39.5 Rhiannon: Something bad happened, and someone has to pay for that.

0:30:42.5 Michael: Right. And I imagine Scalia writing his opinion, his face literally like fire hydrant red and steam visibly pouring out of his ears and making the little choo choo noise, as he's pounding on the keys.

0:30:57.1 Rhiannon: Yeah, yeah. He mad, he big mad.

0:31:00.8 Peter: He spends an entire page talking about how at the time of the founding, this definitely wouldn't have been unconstitutional, and he does so by quoting various legal treatises from the time at length about the treatment of "idiots" under the law at the time, which is... That's what they were called, right? That was what they were called in the literature. He's trying to highlight how far we've drifted from the laws at the time of the founding, but what he ends up highlighting is how little the founders and other people at the time of the founding knew about biology and ethics. Who cares? And then he says, "Look, regardless, the majority is wrong about the national consensus of the states... " I have 38, but then Michael, earlier said 37, I don't know what it is.

0:31:45.1 Michael: Oh 'cause... And Virginia. I said 37, but it's like Virginia is the one in question, so...

0:31:49.2 Peter: Got it, got it. So of the 38 states that allow for the death penalty, only 18 forbid the execution of the mentally disabled. That's not consensus. And so just like Rehnquist, Scalia's leaving out the states that ban the death penalty entirely as if they're irrelevant. Tons of other bullshit in Scalia's dissent. Scalia says that the newer laws forbidding the execution of the intellectually disabled should count for less? The laws have been passed recently, so they're not as persuasive because they're so new that we don't know if they're gonna stick around. Which seems weird because if a law is new, that's more likely to be a reflection of the position of the population than if the law is old.

0:32:29.0 Rhiannon: Contemporary social value.

0:32:33.8 Peter: Whatever Scalia is a fucking hack, fucking overrated piece of sub-human scum and it's just shining through throughout this dissent. Now, let's take a step back, think big picture here. One thing to keep in mind is that the ability of an accused person to comprehend what they did and what they were doing at the time is central to our Criminal Law, it's called mens rea, the person's mind state at the time of the crime. Anyone who's seen Legally Blonde should be up on this. That's why a planned murder is generally considered to be first-degree murder, whereas spur-of-the moment killing is often not. When you're saying that someone is severely cognitively disabled, they're limited somehow cognitively, you're saying that they have a diminished mental capacity such that they are less culpable for the crime than someone with full cognitive capacity would be.

0:33:27.4 Peter: And when I say culpable, what I'm really talking about is moral responsibility. The death penalty is supposed to be reserved for the worst of the worst, the people who are morally responsible for heinous crimes. And when you have someone who has a diminished mental capacity such that they cannot entirely, or at least in the same way as your average adults process what they are doing or the consequences of what they are doing, lumping them in with the people morally responsible for heinous crimes as if they are in the same category, is itself fairly disgusting and we're misunderstanding one of the crucial components of our criminal law, which is that we make these distinctions based on someone's mindset, based on their moral responsibility for the crime.

0:34:17.0 Rhiannon: Yeah, exactly, I think the analog... An easy way to think about it is children. An adult with intellectual disability has diminished cognitive function such that their brain works in the same way that a child's brain works. And children themselves often know the difference between right and wrong. They might even be able to predict some of the future consequences of their actions.

0:34:42.7 Michael: They steal shit, they know they're gonna get in trouble for it.

0:34:45.6 Rhiannon: Exactly, but we don't hold children as responsible as adults because of their limited cognitive function. So morally they're less culpable of the crimes that they commit because their brains don't work the same way.

0:35:01.4 Michael: It seems almost bizarre to talk about it as a crime, some of it, obviously, if it gets severe enough, but a kid stealing a candy bar, it feels like a different category of crime.

0:35:14.6 Rhiannon: And it's awful to think about a kid killing somebody. It happens and there's a reason why morally as a society...

0:35:23.2 Michael: And legally.

0:35:24.2 Rhiannon: And legally, we don't hold them as responsible and we don't punish them as harshly even for heinous acts.

0:35:32.2 Michael: This is an instance which is often the case in criminal law where we want our legal culpability to track our moral culpability. Some laws, like speed limits don't reflect some inherent moral judgment about going 70 miles an hour, it's just a question of how many lanes? What are the traffic patterns? How often are there exits and entrances and shit. But that's not the case with murder laws, that's not the case with rape, those are cases where we want our moral intuitions to shine through, and morality inevitably turns on things like your agency, your individual responsibility for the outcome, and that's why intentionality, that's why your mental state is so important in this. It's like trying to hold someone responsible because their breaks failed. That might be more dangerous than a drunk driver, but there's a very different way we receive that information because we know one person is responsible for the danger and one is not.

0:36:36.6 Michael: The other thing that's worth discussing here is our theories of punishment. Everybody learns in one hour like the three reasons we punish in the criminal justice system. One is retribution, which is directly connected to the moral considerations we we're just talking about, the other is incapacitation, making sure dangerous people are away from their potential victims, but life without parole or civil commitment or just jail until someone's old enough that they're not likely to do anything more dangerous, all just as easily function to incapacitate as putting someone to death. And the last one is deterrence. And deterrence is a big one, but there's a lot of social science research that shows the severity of punishment has almost no deterrent effect, it's the likelihood of punishment, it's the likelihood that you'll get caught is what deters people, which makes sense. People aren't studying the criminal statutes and the federal sentencing guidelines and shit and being like, "Well, I have these aggravating factors, so maybe I shouldn't rob that store."

0:37:44.1 Rhiannon: Exactly.

0:37:45.5 Michael: But even if they are, for the mentally disabled, that's even less true, this is even less likely to be making do complex moral and long-term judgment about effects and causality and risk-taking analysis. It's just ridiculous, on any turn, it's morally repugnant.

0:38:09.9 Peter: The majority, in passing say something I always hear, they say that many intellectually disabled persons can tell the difference between right and wrong. As you guys know, I had a brief phase where I was doing good work and I worked for a juvenile justice organization, and I'd hear the same thing about literal children. Well, you may be only 15, but at 15 you know right from wrong. For a Justice of the Supreme Court to say that just epitomizes the scope of the failure of the legal profession to understand the realities of criminal conduct.

0:38:43.5 Rhiannon: That's right.

0:38:44.1 Peter: Knowing right from wrong is not a discrete feature of the human brain. There is a vast array of cognitive capacity that goes into human conduct, and that must be accounted for before you assign someone culpability under the law. They may lack impulse control, and decision-making capacity. They may lack an ability to comprehend long-term consequences for both themselves and others. Human action is the product of a series of endlessly complex neural functions that we are only beginning to understand and to reduce it to knowing right from wrong is to just lay bare how destitute your understanding of what you're talking about really is. Even when the majority is doing something nominally good, they demonstrate just how ill-prepared they are to deal with this at all. These people have risen to the top of the legal profession and they still think of criminality as a game of fucking cops and robbers. Just absolutely disgusting morally and intellectually hollow analysis.

0:39:40.7 Peter: So one thing both Michael and I have mentioned, the courts method of measuring national consensus so that they can determine what is cruel and unusual by society standards is sort of ridiculous and conservatives, especially have pointed out, "We can't let judges decide what's cruel and unusual based on their own personal preferences." And so they settled on the idea of surveying state laws, and having that be sort of the focus of this analysis. We've already talked about how that's less reliable than the simple opinion polling that the majority points to and more importantly, just doesn't make much rational sense when you take a step back and think about the purpose of the constitution. The purpose of the constitution is to restrain the power of government, including state government. And how can it be that what's constitutional is determined by the states themselves? The whole point of a constitution is that it regulates state laws, not the other way around.

0:40:34.9 Peter: But the way that the court treats cruel and unusual punishment is the complete inversion of that. They're saying, "Well, if enough states say something, then that is what controls our analysis here." They might have people who disagree within those states, and yet those people are disregarded. This is the electoral college approach to analyzing the constitution. It's just embarrassingly poor analysis. And the bottom line to me is like yes, it might be hard to figure out what a good framework for evaluating what is cruel and unusual punishment actually is. It might be extremely difficult, but you have to try to do it. You gotta try. You can't just throw up your hands and say, "Well, we just gotta do whatever the states say."

0:41:15.4 Rhiannon: Right, it's your job.

0:41:16.5 Peter: The Constitution is meant to control the power of the government, not to provide it with affirmation. And what the conservatives are proposing here, where you just rely on what the states say, all that is, is providing the states with affirmation. "Well, if the states say it's cruel and unusual then it is, and if they don't, then it isn't." Well, then what's the fucking point of the constitution?

0:41:37.8 Michael: And there's a real status quo bias in this reasoning, where a lot of times in these two descends they're talking about a lack of consensus, like it's hard to find consensus. But I don't know, if there isn't broad consensus, I think we should err on the side of not killing people. I think that's a basic thing where, this is an irreversible form of punishment that we should be very cautious about enacting, unless there is broad consensus in favor of it. I don't think we should period, but if we are, I think killing someone should require broad consensus. In the absence of it, the state should not be allowed to. I think that's obvious from so many different levels.

0:42:24.2 Peter: There's an extent to which conservatives pitch this stuff as sort of almost like States rights issues, like states should be able to decide. But I wanna note that there's two types of States rights issues broadly. There are limitations on what states can do relative to the federal government, where you're saying, "Well, the state can't do this, that's the Federal Government's job." And then there are limitations on what the states can do, vis-a-vis their own people. And when you talk about states rights it's important to keep these things separate in your mind, because when you're talking about, "Well, who should have this power, the state or the federal government?" Okay, that's a question of federalism and there's all sorts of these academic concepts about where the power should lie, but when you're talking about what the state can do to it's people, what you're actually talking about is liberty. That's not a states rights issue, that's a human rights issue. That's about the rights of the citizens and this case is about the rights of the citizens. I feel like conservatives lump these cases in, "Well, states should be able to decide." But who is on the other side? It's not the federal government, it's human beings that are under the jurisdiction of the state. You have to keep that in mind.

0:43:33.0 Rhiannon: So, turning to wrapping this episode up, I think it's important to just note again that people who there would have been medical consensus, that they were intellectually disabled, there were people like that who were executed after Atkins, even though the holding in Atkins is that people with intellectual disability should not be executed. We should mention that the Supreme Court had to basically take up this question of intellectual disability and capital punishment two more times. First in Hall v. Florida. I mentioned Freddie Hall's Case earlier. His case, which was the one where a Florida Court had originally found that he was intellectually disabled, and had been for his entire life, but then after the Atkins Decision, Florida decided that they had this rigid rule of you can only be deemed intellectually disabled if you score lower than 70 on your IQ test. Mr. Hall's case went to the Supreme Court in 2014, 12 years after Atkins, and in that case, the Supreme Court said that states have to consider factors other than just an IQ score in determining intellectual disability, especially because IQ scores, like we said, have a margin of error, they're not consistently administered, and people can score slightly differently on an IQ test depending on when they take it. In Hall v. Florida, Justice Kennedy writing for the majority in that case said, "Intellectual disability is a condition, not a number."

0:45:00.1 Rhiannon: And then again in 2017, in the case of Moore versus Texas, The Supreme Court struck down those non-medical standards that were used in Texas, those Briseno factors in the case of Mr. Bobby James Moore. In that case, the court was unanimous actually in saying that, "Texas' Briseno factors were an improper standard for determining intellectual disability." And they said that, they were an unscientific "invention," untied to any acknowledged source, without support from any authority, medical or judicial. Ruth Bader Ginsburg, writing for that majority, said, "A court's intellectual disability determination must be informed by the medical community's diagnostic framework." And so, in just talking about these two cases, it's clear that because the Supreme Court didn't have a clear standard, didn't adopt a clear standard from the medical community, from the medical expertise at the time that the Akins decision was handed down, it allowed states to try to circumvent the rule, just like we said, and keep on executing the intellectually disabled.

0:46:08.1 Michael: Just a little food for thought for the listener... Dear listener, Peter and Rhiannon laughed at me earlier, but in retrospect, isn't my bright line standard, for intellectual disability, far superior to what we've seen in the last few decades?

0:46:25.8 Rhiannon: More scientifically sound than what Texas did.

[laughter]

0:46:29.0 Michael: I think it's indisputable, indisputable that the country would be better off with my standard, so...

0:46:38.8 Rhiannon: Thank you, Michael.

0:46:39.8 Michael: No problem. [laughter] I'm glad to contribute to the discourse here.

0:46:45.9 Rhiannon: And... So in this ticky-tack way of state by state, their specific standard for what they adopted to be the rule for who was determined intellectually disabled or not, the Supreme Court has now had to take up these state-by-state challenges. In Georgia, for example, their specific standard has never been heard by the Supreme Court, and in the case of Warren Hill, a state judge found that Mr. Hill was intellectually disabled, but that ruling was reversed by the Georgia Supreme Court, and despite unanimous agreement by state mental health experts that Mr. Hill was intellectually disabled, he was executed by the State of Georgia in 2015.

0:47:27.0 Michael: Jesus.

0:47:27.9 Rhiannon: So this is a real thing, where even though the Atkins holding is clear, that the intellectually disabled are exempt from the death penalty under the Eighth Amendment to the Constitution, it's still happening because the standard has never been articulated in a clear way.

0:47:44.4 Michael: Right, I haven't read the Moore v. Texas case you mentioned, Rhiannon, that was unanimous, but I think it's kinda interesting, 'cause Thomas joined Scalia and Rehnquist Dissent in Atkins and to see him in the majority later tightening Atkins restrictions essentially. I don't know if he wrote separately to be like, "Oh, this is a proper application of our case law, but it's wrong." Or whatever, blah, blah, blah... He does that sometimes, but it does... The court's more conservative now than it was at the time of Atkins, and I think it just goes to show how dated this got very quickly, that a more conservative court is not revisiting Atkins or whatever, it's tightening Atkins. More evidence that Scalia and Rehnquist were very much behind the times, at the time.

0:48:33.3 Rhiannon: Yeah, and just a technical note that in Moore v. Texas, the Supreme Court decided unanimously that Texas' Briseno factors were an improper standard and that they were unscientific, but three justices did dissent in deciding whether Mr. Moore himself should be granted relief.

0:48:50.5 Peter: Yeah, in the abstract, they believe in stuff, but when it comes up to the details... I think my final thought on this case is that, this is the fall out of the conservatives' concept of judicial restraint, which they... Starting in the 70s, were really able to sort of push as... Like one of the primary concerns of the courts, that the court should not impose too much, but instead should exercise restraint. And so here they're saying, "Okay, we're not gonna tell you what to do exactly, but you can't execute the intellectually disabled." And the result is that states get a little bit fucky with the details. They just start to sort of massage facts in given cases and create standards that aren't really aligning with medical consensus in the slightest. Contrast that with a case that Michael always points out, Miranda v. Arizona, where the court was saying, "Okay, people in interrogations have these rights." and everyone knows them, the rights to remain silent, blah, blah, blah, "And not only do they have these rights, but the government is obligated to inform them of them, and here's how you do it." The same could have been done here, A, "We are creating this rule, that you cannot execute the intellectually disabled," and B, "Here's what that means."

0:50:11.6 Peter: And because the court is scared of stepping into this realm, we are left with a situation where the states can essentially evade it by creating their own standards, by creating standards that don't make any sense, and result in a case like Florida, in a situation where they say, "Well, yeah, we won't execute intellectually disabled people," but unfortunately, no one's ever met that standard. And this is the liberals on the court, in the majority in Atkins, running scared, they don't want to be held responsible for stepping into what many people believe to be the roles of the states, and a line you'll hear from academics, "Well, do you really want the court deciding this?" And what we've said before and will say again is, "Do you really want fucking state legislatures deciding it?" One of them is plainly better than the other, sorry.

0:51:02.8 Rhiannon: And so maybe we can end on how Mr. Atkins case played out. So we said the Supreme Court held, when his case got to them in 2002, that the intellectually disabled are exempt from capital punishment, and so his case was sent back to Virginia State Court for the determination of his intellectual disability. In 2005, a jury ruled that Mr. Atkins was intelligent enough to be executed, on the basis that he and his lawyers had been in touch so much, that they had spoken back and forth about his case enough and what was happening in his case, that his IQ was raised above 70 and therefore Mr. Atkins was competent enough to be put to death.

0:51:45.1 Peter: That sounds crazy, but it's actually true, if you talk to lawyers enough, your IQ will just shoot through the roof.

0:51:51.9 Rhiannon: You wish.

0:51:52.3 Michael: Just listening to our podcast has made you like one standard of deviation smarter. If you listen to all our episodes, the more you listen to them, the smarter you will become as a matter of fact, so I strongly recommend a re-listen.

0:52:07.2 Rhiannon: So Mr. Atkins, in 2005, had an execution date set, but other petitions were filed, his lawyers kept arguing and they eventually won a stay of that execution date.

0:52:16.6 Peter: His lawyers were like, "No, we're actually really stupid, talking to us doesn't help you at all."

[laughter]

0:52:22.3 Rhiannon: So in 2008, Mr. Atkins was back in a Virginia Court on the matter of whether he had intellectual disability, but during those proceedings, the court was made aware of brand new allegations of prosecutorial misconduct that had occurred in Mr. Atkins' trial, and the judge, Prentis Smiley, rather than vacating Mr. Atkins' conviction and ordering a new trial based on the finding of prosecutorial misconduct, he instead commuted Mr. Atkins' sentence to life in prison. So in the end, Mr. Atkins was not executed. And there's a really interesting story about the prosecutorial misconduct and the lawyer who revealed the prosecutorial misconduct, so I encourage people to check out Mr. Atkins' story.

0:53:04.0 Michael: Was the misconduct that they knew he was intellectually disabled?

0:53:07.4 Rhiannon: No. So, Mr. Jones, Mr. Atkins' co-defendant, was flipped by the prosecutor and testified against Mr. Atkins at trial, of course and when they were preparing for Mr. Jones to testify, the prosecutors turned off the tape recording of Mr. Jones and coached him on what to say. So the lawyer for Mr. Jones kept on petitioning to the Virginia, basically like State Bar, and finally he was given the okay to reveal in Mr. Atkins' case that that had happened.

0:53:39.6 Michael: That's really interesting, 'cause the majority makes the point that one of the reasons Atkins ends up sentenced to death and not Jones is because Jones' testimony was deemed more credible, because Atkins' testimony had a bunch of inconsistencies and stuff, whereas Jones' testimony was on point.

0:53:56.7 Rhiannon: Right, exactly. Well, that's 'cause he practiced it and the prosecutors told him what to say.

0:54:00.4 Michael: Yeah. That's interesting.

0:54:02.1 Peter: Everything that Rhi has mentioned about how... Like what these states do, just sort of exemplifies why the court can't be fucking around with this sort of stuff, why the court has to create clear standards that actually direct the states and not just allow the states to use the malleability of these concepts to create rules that functionally replicate the old structures that existed before the opinion, which is what happens here.

0:54:30.3 Rhiannon: Exactly, yes.

0:54:31.2 Peter: Intellectually disabled people do not... Almost by definition, do not meet the criteria that you need to meet to get the death penalty. The death penalty is meant, per the Supreme Court itself, to be for the so-called worst of the worst, people who commit not just horrific crimes, but who have a culpability that is particularly severe. We're not necessarily talking about people who do not deserve any sort of punishment or should be allowed to hang out freely in society after committing a crime, but you are certainly talking about people who the state might wanna think twice before killing. And even if you believe... If you concede that the state should be able to kill people... And we don't, but even if you concede that, surely you have to fucking believe that there are limitations, that someone with severely diminished capacity should be left out of that equation, of the concept of the worst of the worst people. It's something that seems so intuitively obvious, that it's weird to even contemplate arguing about it. And when you are in the position the Supreme Court was in, in 2002, you have a fantastic opportunity to drop the hammer on this disgusting arcane practice. And instead, they hedge, they hold back in the name of judicial restraint or whatever, and the consequences are people with severely diminished cognitive capacities being killed systematically by the state.

0:56:01.8 Michael: That's right.

[music]

0:56:09.1 Peter: Next week is McCleskey v. Kemp, another case about the death penalty, about systemic racism and the application of the death penalty with special guest, Josie Duffy Rice, president of The Appeal.

0:56:23.3 Rhiannon: Woah.

0:56:24.8 Michael: Exciting.

0:56:25.3 Peter: Big name. Follow us on Twitter @fivefourpod. Tell your friends and family.

0:56:30.4 Michael: Buy our merch.

0:56:31.9 Peter: Buy our merch.

0:56:33.6 Rhiannon: Fivefourpod.com.

0:56:34.9 Peter: Raise your toddlers IQ by playing our podcast. If you're pregnant, hold a speaker up to your stomach so that your child can hear us and come out smarter. All backed by science.

[laughter]

0:56:51.0 Michael: If you're a PhD student, I recommend a study on IQ changes before and after becoming a FIVEFOUR fan. That's for your dissertation.

0:57:01.3 Rhiannon: Free idea. Bye.

0:57:05.4 Michael: Yeah, let's get out of here. [chuckle] FIVEFOUR is presented by Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS and Wine, and our theme song is by Spatial Relations.

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