27

After peaking at almost 80% in the 1990s, public support for the death penalty has consistently dropped since the 2000s—possibly due to the advent of DNA testing and stories of wrongful convictions revealed by such evidence, or because the country has become more socially liberal in a number of ways. Since 2007, eleven states have abolished the death penalty altogether. Despite these changes, support for the death penalty still polls at over 50%, and a little over half the states maintain the death penalty (though three of these states, including California, have had all executions suspended by their governor).

For the most part, these shifts have not led to significant changes to the post-Gregg regime, with a few important exceptions. The first and most notable exception is that in a pair of cases in the 2000s, the Supreme Court excluded some classes of individuals from facing the death penalty. The Court had already held in 1986 that it was cruel and unusual punishment to execute an individual who was legally insane (regardless of whether they had been mentally deficient during the murder or their trial). Someone who is no longer aware of the punishment they are about to face, or why they are facing it, cannot be constitutionally subject to execution.

Soon after, however, in Penry v. Lynaugh (1989) the Court held that the Eighth Amendment did not necessarily bar death sentences for individuals who were mentally disabled, assuming they are otherwise found culpable by the jury and awarded a death sentence under post-Gregg procedures.

The Court would revisit the issue of whether mentally disabled offenders could receive the death penalty thirteen years later in Atkins v. Virginia (2002). Atkins was one of two individuals who robbed a man, drove him to an isolated area, and then shot him. Both individuals accused the other of the murder, but the jury convicted Atkins. During the penalty phase, Atkins introduced an expert witness who testified he was mildly mentally disabled [the Court uses the outdated phrasing of the time, i.e. that Atkins was “mildly retarded”], with an IQ of less than 70. Atkins was nevertheless sentenced to death.

After an unrelated legal error led to resentencing, Atkins argued at his second sentence hearing that giving the death penalty to someone of his mental capacity would be cruel and unusual punishment under the Eighth Amendment. After the jury applied the death penalty for the second time, Atkins appealed. The Virginia Supreme Court rejected his argument, noting Penry in their opinion.

In Atkins, the Supreme Court would overturn both Atkins’ sentence and Penry by a 6-3 margin, holding that it was unconstitutional to execute mentally disabled individuals.

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Atkins v. Virginia

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536 U.S. 304 (2002)

Facts: Atkins was convicted of kidnapping, armed robbery, and capital murder. During the penalty phase of his trial, defense counsel introduced evidence that he was mildly mentally disabled. After being sentenced to death, the Virginia Supreme Court remanded on a legal error; Atkins was resentenced and given the death penalty again. Atkins sued, arguing that his mental disability made his execution a cruel and unusual punishment. The Virginia Supreme Court rejected his claim, noting that only mentally insane individuals (under Wainwright) were so barred from death sentences.

Question: Can mentally disabled individuals such as Atkins be given the death penalty under the Eighth Amendment?

Vote: No, 6-3

For the Court: Justice Stevens

Dissenting opinion: Justice Rehnquist

Dissenting opinion: Justice Scalia

JUSTICE STEVENS delivered the opinion of the Court.

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.

I

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Jones and Atkins both testified in the guilt phase of Atkins’ trial. Each confirmed most of the details in the other’s account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones’ testimony, which was both more coherent and credible than Atkins’, was obviously credited by the jury and was sufficient to establish Atkins’ guilt. At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report.

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.” His conclusion was based on interviews with people who knew Atkins, a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59…

The jury sentenced Atkins to death…

The Supreme Court of Virginia affirmed the imposition of the death penalty… Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend “that he is mentally retarded and thus cannot be sentenced to death.” The majority of the state court rejected this contention, relying on our holding in Penry...

II

… As Chief Justice Warren explained in his opinion in Trop v. Dulles (1958): “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man … The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Proportionality review under those evolving standards should be informed by “’objective factors to the maximum possible extent,’” see Harmelin. We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia (1977) …

We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” …

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

III

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia apparently led to the enactment of the first state statute prohibiting such executions… In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.” In 1989, Maryland enacted a similar prohibition. It was in that year that we decided Penry, and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.”

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue. In 1990, Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. Nebraska followed suit in 1998. There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States–South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina–joined the procession. The Texas Legislature unanimously adopted a similar bill, and bills have passed at least one house in other States, including Virginia and Nevada.

It is not so much the number of these States that is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal… Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus, there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry. The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it…

Footnote 21 [Editor: the dissents respond to this footnote, so it’s been included here, at roughly the point where it appears in the original text]:

Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender… In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved… Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong… Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue.

[end footnote]

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”

IV

… Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.”

With respect to retribution–the interest in seeing that the offender gets his “just deserts” –the severity of the appropriate punishment necessarily depends on the culpability of the offender… If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution… an exclusion for the mentally retarded is appropriate.

With respect to deterrence–the interest in preventing capital crimes by prospective offenders–“it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation.’” Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable–for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses–that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio (1978), is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes… Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal…

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner…

I agree with JUSTICE SCALIA that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism… The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us…

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” …

… Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “‘is a significant and reliable objective index of contemporary values’” Coker v. Georgia (1977) …

In my view, these two sources–the work product of legislatures and sentencing jury determinations–ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment…

… While it is true that some of our prior opinions have looked to “the climate of international opinion” to reinforce a conclusion regarding evolving standards of decency, we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” …

… In my view, none should be accorded any weight on the Eighth Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action…

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.

Today’s decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.

I

… The jury convicted Atkins of capital murder. At resentencing, the jury heard extensive evidence of petitioner’s alleged mental retardation. A psychologist testified that petitioner was mildly mentally retarded with an IQ of 59, that he was a “slow learner,” who showed a “lack of success in pretty much every domain of his life,” and that he had an “impaired” capacity to appreciate the criminality of his conduct and to conform his conduct to the law. Petitioner’s family members offered additional evidence in support of his mental retardation claim… The Commonwealth contested the evidence of retardation and presented testimony of a psychologist who found “absolutely no evidence other than the IQ score . . . indicating that [petitioner] was in the least bit mentally retarded” and concluded that petitioner was “of average intelligence, at least.”

The jury also heard testimony about petitioner’s 16 prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming…

As the foregoing history demonstrates, petitioner’s mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt him from the death penalty in light of the brutality of his crime and his long-demonstrated propensity for violence…

Under our Eighth Amendment jurisprudence, a punishment is “cruel and unusual” if it falls within one of two categories: “those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted” and modes of punishment that are inconsistent with modern “’standards of decency‘“…

The Court makes no pretense that execution of the mildly mentally retarded would have been considered “cruel and unusual” in 1791. Only the severely or profoundly mentally retarded, commonly known as “idiots,” enjoyed any special status under the law at that time. They, like lunatics, suffered a “deficiency in will” rendering them unable to tell right from wrong…

The Court is left to argue, therefore, that execution of the mildly retarded is inconsistent with the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles. Before today, our opinions consistently emphasized that Eighth Amendment judgments regarding the existence of social “standards” “should be informed by objective factors to the maximum possible extent” and “should not be, or appear to be, merely the subjective views of individual Justices.” …

The Court pays lipservice to these precedents as it miraculously extracts a “national consensus” forbidding execution of the mentally retarded, from the fact that 18 States–less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists)—have very recently enacted legislation barring execution of the mentally retarded…

But let us accept, for the sake of argument, the Court’s faulty count. That bare number of States alone–18–should be enough to convince any reasonable person that no “national consensus” exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to “consensus”? Our prior cases have generally required a much higher degree of agreement before finding a punishment cruel and unusual on “evolving standards” grounds. In Coker, we proscribed the death penalty for rape of an adult woman after finding that only one jurisdiction, Georgia, authorized such a punishment…

Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 States it relies on is still in its infancy. The oldest of the statutes is only 14 years old; five were enacted last year; over half were enacted within the past eight years. Few, if any, of the States have had sufficient experience with these laws to know whether they are sensible in the long term…

The Court attempts to bolster its embarrassingly feeble evidence of “consensus” with the following: “It is not so much the number of these States that is significant, but the consistency of the direction of change.” But in what other direction could we possibly see change? Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound to be in the one direction the Court finds significant enough to overcome the lack of real consensus…

Even less compelling (if possible) is the Court’s argument, that evidence of “national consensus” is to be found in the infrequency with which retarded persons are executed in States that do not bar their execution… surely the explanation is that mental retardation is a constitutionally mandated mitigating factor at sentencing. For that reason, even if there were uniform national sentiment in favor of executing the retarded in appropriate cases, one would still expect execution of the mentally retarded to be “uncommon.” … “[I]t is not only possible, but overwhelmingly probable, that the very considerations which induce [today’s majority] to believe that death should never be imposed on [mentally retarded] offenders … cause prosecutors and juries to believe that it should rarely be imposed.” …

III

Beyond the empty talk of a “national consensus,” the Court gives us a brief glimpse of what really underlies today’s decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people… “’[T]he Constitution‘” the Court says, “contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.”’ The arrogance of this assumption of power takes one’s breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus…

The genuinely operative portion of the opinion, then, is the Court’s statement of the reasons why it agrees with the contrived consensus it has found, that the “diminished capacities” of the mentally retarded render the death penalty excessive. The Court’s analysis rests on two fundamental assumptions: (1) that the Eighth Amendment prohibits excessive punishments, and (2) that sentencing juries or judges are unable to account properly for the “diminished capacities” of the retarded. The first assumption is wrong, as I explained at length in Harmelin v. Michigan… The second assumption–inability of judges or juries to take proper account of mental retardation–is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters…

Proceeding from these faulty assumptions, the Court gives two reasons why the death penalty is an excessive punishment for all mentally retarded offenders. First, the “diminished capacities” of the mentally retarded raise a “serious question” whether their execution contributes to the “social purposes” of the death penalty, viz., retribution and deterrence.  (The Court conveniently ignores a third “social purpose” of the death penalty— “incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future”). Retribution is not advanced, the argument goes, because the mentally retarded are no more culpable than the average murderer, whom we have already held lacks sufficient culpability to warrant the death penalty… Who says so? Is there an established correlation between mental acuity and the ability to conform one’s conduct to the law in such a rudimentary matter as murder? Are the mentally retarded really more disposed (and hence more likely) to commit willfully cruel and serious crime than others? In my experience, the opposite is true: being childlike generally suggests innocence rather than brutality.

Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is “no more culpable” than the “average” murderer in a holdup-gone-wrong or a domestic dispute? … Surely culpability, and deservedness of the most severe retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distinguish right from wrong) but also upon the depravity of the crime…

… The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders. By what principle of law, science, or logic can the Court pronounce that this is wrong? There is none. Once the Court admits that mental retardation does not render the offender morally blameless, there is no basis for saying that the death penalty is never appropriate retribution, no matter how heinous the crime…

As for the other social purpose of the death penalty that the Court discusses, deterrence: That is not advanced, the Court tells us, because the mentally retarded are “less likely” than their nonretarded counterparts to “process the information of the possibility of execution as a penalty and . . . control their conduct based upon that information.” … the Court does not say that all mentally retarded individuals cannot “process the information of the possibility of execution as a penalty and … control their conduct based upon that information”; it merely asserts that they are “less likely” to be able to do so. But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class. Virginia’s death penalty, for example, does not fail of its deterrent effect simply because some criminals are unaware that Virginia has the death penalty…

The Court throws one last factor into its grab bag of reasons why execution of the retarded is “excessive” in all cases: mentally retarded offenders “face a special risk of wrongful execution” because they are less able “to make a persuasive showing of mitigation,” “to give meaningful assistance to their counsel,” and to be effective witnesses.  “Special risk” is pretty flabby language … and I suppose a similar “special risk” could be said to exist for just plain stupid people, inarticulate people, even ugly people. If this unsupported claim has any substance to it (which I doubt), it might support a due process claim in all criminal prosecutions of the mentally retarded; but it is hard to see how it has anything to do with an Eighth Amendment claim that execution of the mentally retarded is cruel and unusual…

Today’s opinion adds one more to the long list of substantive and procedural requirements impeding imposition of the death penalty imposed under this Court’s assumed power to invent a death-is-different jurisprudence. None of those requirements existed when the Eighth Amendment was adopted, and some of them were not even supported by current moral consensus… There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court…

This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game. One need only read the definitions of mental retardation adopted by the American Association on Mental Retardation and the American Psychiatric Association to realize that the symptoms of this condition can readily be feigned…

While Atkins gives states some leeway in determining who falls into the category of individuals Atkins represents, the Court overturned a Florida death sentence in 2014 when a state court relied only on an IQ test, refusing to admit other evidence that might demonstrate mental disability.

The limitation of who can constitutionally be executed was extended again in 2005, this time to minors. In some states, 16 and 17-year-old minors were triable as adults—and sentenced to death—if the standards for capital murder were met and the jury found that aggravating factors outweighed mitigating ones (including, presumably, the offender’s age). While the Court had barred the death penalty for individuals younger than 16 in 1989, it had not since addressed the practice of doing so for minors close to adulthood.

In Roper v. Simmons (2005), the Court struck down these sentences as well, using a mode of reasoning almost identical to that seen in Atkins. The evidence of evolving standards was deemed weaker than that in Atkins (Justice O’Connor changed her vote and joined the dissent for this reason) but still sufficient, and executing minors raised similar problems with the death penalty’s penological purposes: adolescents were viewed as impulsive, lacking in judgment relative to adults, and prone to overreact. This meant that they were both less culpable for their actions, weakening retribution, and less likely to be deterred by the law, weakening deterrence.

More recently, the Court considered Madison v. Alabama (2019), a death penalty case where a man sentenced to die had developed dementia while on death row. Madison’s attorneys appealed the sentence, arguing that—using the logic of Atkins—it was cruel and unusual to execute someone who no longer remembered committing the crime that led to their death sentence, and/or someone who now lacked the cognitive capacity to understand why they were being executed. The Court split the difference on these issues, holding executing someone who lacked the mental capacity to understand what was happening to them was a violation of the Eighth Amendment, but executing someone who did not remember the crime but could understand the process was not.

Two other recent Eighth Amendment issues are worth mentioning, both of which have been profoundly impacted by the development of the post-Trump conservative Court majority.

First, in 2010 and 2012, the Court held it unconstitutional for states to create mandatory sentences of life in prison without the possibility of parole for minors—first for crimes other than murder in Graham v. Florida (2010), and then for homicide as well in Miller v. Alabama (2012). In these cases—both decided by a 5-4 margin—the Court relaxed the “death is different” principle when it came to minors, relying on the arguments about reduced culpability and poor adolescent decision-making seen in Roper. The development of these cases was cut short in 2020, however, in Jones v. Mississippi. Writing for the Court, Justice Kavanaugh held that states could still sentence minors to life without parole for homicide, as long as the sentencing body had the discretion to decide whether the death penalty was appropriate.

Second, the Court has heard and rejected multiple challenges to particular modes of execution over the past decade, specifically claims that lethal injections cause unnecessary pain and thus inflict cruelty without purpose. In 2019, Justice Gorsuch wrote for the Court that the Eighth Amendment “does not guarantee a painless death”, but instead only one without unnecessary or purposefully added pain. The Court has held the inmate must therefore identify a suitable and feasible alternate method of lethal injection that would “significantly reduce a substantial risk of severe pain” in order to mount a successful challenge. The petitioner in this case was unable to do so.

What other impacts will the six-justice conservative majority established in 2020 have on Eighth Amendment jurisprudence? At a minimum, there will be no further limits on sentencing in the manner of Atkins or Graham. This majority will also almost certainly continue the decades-long reluctance of the Court to hold non-death penalty sentences “grossly disproportionate.”

The Court’s conservative justices have also increasingly expressed their frustration with challenges to the procedures and processes surrounding the death penalty. Some clearly believe that pleadings regarding the method of execution, for example, are meritless delaying tactics for inmates who have already been on death row for years, if not decades. Given this, legal policy changes involving either sentencing or the death penalty will be driven by state legislatures, rather than the Court, in the foreseeable future.