At the end of its term, the Supreme Court revealed its deep divisions over the death penalty. In Glossip v. Gross, the central issue was the constitutionality of a particular drug that Oklahoma used in its lethal injections. However, the decision took on new dimensions when Justice Stephen Breyer called upon the court to consider the more fundamental question of whether the death penalty itself is constitutional. Unsurprisingly, Justice Antonin Scalia responded with exasperation, saying that this issue has been raised and settled many times. “Welcome to Groundhog day,” he said.
While there may be intractable differences regarding the constitutionality of the death penalty, the justices are overlooking an area of death penalty jurisprudence where they can find common ground: surely it is unconstitutional to execute a person who would have been protected from execution when the Eighth Amendment was adopted in 1791. These early protections should be especially important to conservatives like Justice Scalia, who believe that the Constitution should be interpreted as it was originally intended. Yet in at least one area it appears that these ancient protections have been forgotten.
There is strong historical evidence that we currently execute some people with mental disabilities who would have been protected from such punishment when the Eighth Amendment prohibition on cruel and unusual punishment was adopted in 1791. At that time, protections existed that categorically prohibited the execution of people called “idiots” and “lunatics.” These terms are roughly analogous to people who are currently diagnosed with intellectual disabilities (formerly called mental retardation) and mental illness.
These terms sound jarring. And they should. Their contemporary meanings are laden with the painful history of mistreatment and marginalization of people with intellectual disabilities and mental illness. However, diving into the history of these words shows that in the context of capital punishment, we’re actually providing less protection for some people with mental disabilities than were provided when the Bill of Rights was first adopted.
The Framers and the common law tradition long held that it was “cruel” to execute “idiots.” The legal giants of the common law, such as Blackstone, Coke, and Hale, described the execution of these disabled people as “savage and inhuman,” a “miserable spectacle,” and “of extreme inhumanity and cruelty.” These strong statements led the Supreme Court in the 1980s to acknowledge that executing “idiots” violates the Eighth Amendment’s prohibition on “cruel and unusual punishment.” However, the Court altered who qualified as an “idiot” for purposes of capital punishment, and since then, this issue has largely lain dormant.
In Penry v. Lynaugh, Justice Sandra Day O’Connor argued that historical idiocy protections shielded only the “profoundly or severely retarded” not the moderately or mildly mentally retarded. But the central source she cited for this claim—which says that “idiots” had IQs of 25 or below—is not from 1791. It’s from the eugenics movement in the 1900s. When Justice Scalia reasserted this argument several years later, he likewise cited sources from the wrong time period, such as a phrenologist from the 1840s (phrenology was bunk science that determined mental disability based on the measurement of a person’s head). Both the eugenics and phrenology movements originated after the adoption of the Eighth Amendment and were wholly unknown to the eighteenth-century colonialists.
Who, then, was protected by idiocy protections when the Eighth Amendment was adopted? A fresh reading of the historical record reveals that these protections were not limited to the “profoundly or severely retarded”—they were much broader.
The strongest evidence comes from the legal dictionaries used by colonial lawyers. In fact, these are the very legal dictionaries that Justice Scalia claims are authoritative for learning the meaning of legal terms at the end of the eighteenth century. Five of the six dictionaries contain long entries for the word “idiot.” All five of these dictionaries have subsections for criminal responsibility, and they all cite the same rule to determine whether or not a person qualifies as an “idiot” (and thereby merits protection from execution). The rule says that such a person is someone who has less “understanding” than “ordinarily a child of fourteen years hath.” Such a person, the rule states, cannot be executed for treason or felony.
Fourteen. That’s a fairly high level of understanding. While the Supreme Court in Atkins v. Virginia prohibited the execution of some people with mental impairments, the fourteen-year-old rule would likely go even further. In fact, if we applied the eighteenth-century protections today, it’s likely that several inmates with mental impairments on death row would be ineligible for capital punishment.
This ancient fourteen-year-old rule finds a natural analogue in our concept of “mental age.” While mental age is a somewhat fraught psychological concept, it can serve as a helpful jumping off point to conceptualize the type of person that the Framers and common law were trying to protect. And today, on death row, there are prisoners who have mental ages below fourteen. For instance, Freddie Hall, whose case was recently heard by the Supreme Court, was determined to have a mental age below fourteen. Thomas Bowling, a man who recently died on death row in Kentucky, was diagnosed with a mental age of eleven. And there are others.
It’s curious that these protections have gone unaddressed for so long. Speculative explanations abound: conservatives are generally the most ardent believers in the historical method of “originalism” to interpret the Constitution, and they may be less inclined to chip away at the death penalty; these protections may challenge liberals’ belief that society is evolving progressively toward more enlightenment and civility; and frankly, the legal academy seems generally disinterested in intellectual disability.
Whatever the cause, it’s time to remember these forgotten protections. And, no, remembering such protections does not mean reverting to retrograde psychological care or abandoning Justice Breyer’s broader argument against execution. The “original meaning” of the Eighth Amendment only serves as a “constitutional floor”—it simply establishes the minimum level of protection that must be enforced. Current constitutional doctrine allows the Court to develop more expansive notions of the Eighth Amendment as our standards of decency evolve. However, the floor is currently missing.
More historical work will help flesh out the contours of eighteenth century idiocy protections. However, even a cursory reading of the record shows that the standing analysis is bad history. Protections for people with mental impairments were real, they were defined, and they were used to protect people with a range of mental disabilities.
Although the Court’s current differences on the death penalty may not find easy resolution, the Justices should be able to find common ground on these historical protections. And even though it seems only a small segment of capital prisoners would qualify for additional protections, from the perspective of those prisoners, this new historical analysis may be a matter of life and death.
Michael Clemente is a Yale Law School student. This essay is adapted from an article in the Yale Law Journal, which won the Burton Award for Distinguished Legal Writing.