The Eighth Amendment and the “Emerging Consensus” Standard

I have a piece up at the Prospect about yesterday’s modestly encouraging Eighth Amendment case:

The fact that someone as clearly mentally impaired as Hall had his death sentence upheld by the Florida courts is a grim illustration that using the IQ number as a rigid cutoff creates an enormous risk of false negatives in Florida’s tests for mental impairment. For a court that takes Atkins at all seriously, this should be an easy case.

Justice Alito’s dissent, speaking for the Court’s four most conservative members, responds to this clear logic with an essentially tautological defense of Florida’s system. There is not a clear consensus among states that a rigid, bright-line IQ rule is invalid, Alito asserts, and “in the absence of such a consensus, we have no basis for holding that Florida’s method contravenes our society’s standards of decency.” Alito’s characterization is, in its own terms, defensible. But while the Court has in my view but too much emphasis on the consensus of state governments in its Eighth Amendment jurisprudence, it has never claimed that the current consensus or lack thereof is the only criterion relevant to Eighth Amendment cases. Executing the mentally impaired, for reasons eloquently explained by the majority, inherently conflicts with the individual dignity and fairness required by the Eighth and Fourteenth Amendments. By creating an unacceptably high risk of executing a mentally disabled individual, Florida’s standards violate the Eighth Amendment, and this would be true whether one state used them or fifty did.

The dissent’s response on this more important point has nothing to offer but the hostility to scientific expertise that is becoming increasingly ascendant in the contemporary Republican Party. “Under our modern Eighth Amendment cases,” charges Alito, “what counts are our society’s standards—which is to say, the standards of the American people—not the standards of professional associations, which at best represent the views of a small professional elite.” But Florida cannot have it both ways; it cannot rely on the IQ test as a scientifically valid way to evaluate mental impairment and then ignore scientific evidence about what the IQ test means.

Giving the Florida essentially unlimited discretion to determine who is mentally impaired would render Atkins a dead letter. This, of course, is the outcome desired by the dissenters, but it’s not an outcome consistent with the Eighth Amendment. The Court’s opinion today is a welcome step in the right direction that signals to the states that Atkins should actually be taken seriously.

I can’t blame the Alito dissent for focusing on the highly contestable assertion of consensus on the part of the majority. This standard has been a major part of the recent holdings restricting use of the death penalty, most problematically in Kennedy’s opinion in Roper v. Simmons. Kennedy’s opinion yesterday focused more on substantive considerations than on the question of “consensus,” which is appropriate. State policies aren’t entirely irrelevant, but they should be a peripheral consideration. The idea that the constitutionality of particular forms of punishment should hinge on whether 5 or 8 states use it has always been odd.

The cruel and unusual punishment clause is a vague principle that requires the use of discretion to be applied. This isn’t because of a drafting error; an Eighth Amendment that tried to to specify particular punishments to be prohibited would be worse than useless at the time of ratification. (It would essentially be a road map for torturers — if you want to inflict a cruel and unusual punishment, make sure you think of something we didn’t.) This problem would get worse over time, both because of technology and the development of moral standards. Attempts to turn the Eighth Amendment into the laundry list the framers wisely avoided through “originalism” have similar problems. (Justice Stevens: “While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to

the law.”) Despite some hand-waving towards an “emerging consensus,” the Court yesterday essentially made a substantive, independent judgment about the meaning of the Eighth Amendment, and this is entirely appropriate.