By John Weston Parry, J.D.
A recurring theme in this blog and the book upon which many of these essays are based--Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October, 2013)—is the notion that when addressing the rights of persons with mental disabilities, the legal system is guided by comfortable prejudices and beliefs, embracing sanism, stereotypes, subjective impressions and misleading presumptions and predictions, rather than knowledge gained from empirical evidence and rigorous observation. Nowhere are those prejudices more evident than in our criminal justice system.
According to a new book written by Adam Benforado, an associate professor of law at Drexel University, entitled Unfair: The New Science of Criminal Injustice, our criminal justice system is “based on an inaccurate model of human behavior…, untested assumptions about what deceit looks like, how memories work and when punishment is merited.” This model has resulted in “fundamental flaws in our current legal processes and structures.” (See, Benforado’s article “Flawed Humans, Flawed Justice,” Sunday Review, International New York Times (June 13, 2015), www.nytimes.com) Professor Benforado ably illuminates how these misperceptions have negatively affected our criminal justice system through such flawed practices as: the admissibility of eyewitness testimony; so-called “objective forensic evidence… [including] DNA; decisions based on misunderstanding about consent and voluntariness; and the inability to distinguish between bias and racism. The solution, he argues, is using “an evidence-based approach” to the law.
Unfortunately, his solution while well-intentioned and based on a compelling analysis, would only address part of the problem. The evidence-based perspective can only be as good as the quality of the evidence itself. As was discussed in an earlier essay on this blog, the “evidence-based approach” itself is subject to manipulation and distortion, depending on how it is used. Many of the policymakers and politicians who embrace this pseudo-scientific perspective are unwilling to rely on the typically difficult and time-consuming empirical and observational studies to verify their preferences and pet theories before trying to incorporate them into our laws and policies.
Moreover, as has been revealed too many times in recent years, much of what passes as science has been based on shortcuts, fraud, and/or deception. According to a New York Times Op Ed piece, “[e]very day, on average, a scientific paper is retracted because of misconduct.” Also, as a recent New York Times editorial pointed out, this type of “junk science” has infected those who investigate and prosecute crimes, including even the FBI and Justice Department, leading to numerous improper criminal convictions. What goes on during state and local prosecutions is anybody’s guess, but the historical patterns strongly suggest that the science is no better than at the federal level, and probably far less reliable overall.
With respect to the rights of people with mental disabilities, junk science, pet theories, presumptions, predictions, and sanism combine to create especially toxic results. Too often our laws and policies that affect people with mental disabilities embrace prejudicial beliefs about the world and how it should be. When people with mental disabilities are being prosecuted or sentenced for crimes, these misleading presumptions include beliefs such as: severe mental disorders should not be used to substantially reduce criminal culpability; individuals with serious mental disorders are likely to be dangerous and thus deserve greater punishment; and cognitively and emotionally damaged young people who commit crimes should be treated as if they have the same culpability as mature adults.
Elements of all three of these prejudices can be found in a significant, but overlooked, recent U.S. Supreme Court opinion involving the execution of people with mental disabilities. What is frightening is that even the most sympathetic justices seem to accept these sanist predilections as the law of the land; then they craft their reasoning in ways that will not disturb the status quo. The least sympathetic justices would expand sanist policies much further if they could, illustrating that enhanced intellect does not always translate into intelligence, especially when its informed by popular prejudices.
Blumfield v. Cain
The U.S. Supreme Court's 5-4 decision in Blumfield v. Cain, No. 13-1433 (June 18, 2015), granting an admittedly vicious murderer his first legitimate opportunity to prove that his intellectual disabilities meet Louisiana's standards for voiding the death penalty, as constitutionally required under Atkins v. Virginia, 536 U.S. 304 (2002), appears to be a small victory for the rights of people with mental disabilities, as well as for the unsympathetic appellant, Kevan Blumfield. The underlying context, however, is that in much of the majority and virtually all of the dissenting opinions those rights are cast in extremely restrictive and/or sanist terms, which reaffirm the view that people with severe mental disabilities continue to be disadvantaged in our legal system.
That discouraging reality was previewed in another 2015 Supreme Court decision discussed in the previous blog essay. There, a 6-2 majority of the Court dismissed the rights of a woman with a severe mental illness, who was shot multiple times in her room during a misguided and unnecessarily violent effort by two police officers to involuntarily commit her to a psychiatric facility. (City and County of San Francisco v. Sheenan, (No. 13-1412, May 18, 2015).
In the present case, Blumfield, accompanied by an accomplice, fired multiple shots deliberately killing an off-duty Baton Rouge, Louisiana police officer during an unsuccessful attempt to commit a robbery. The year was 1993. Blumfield was convicted and sentenced to death for murder. Later, while on Lousiana's death row and shortly after Atkins had been decided, Blumfield sought to prove that he had intellectual disabilities that would preclude his being executed. The police officer Blumfield murdered happened to be the mother of Warrick Dunn, who would later become a star running back in the National Football League and a respected member of his community. That happenstance, according to Justice Thomas’ dissent, made Blumfield less deserving of constitutional protections.
There were three aspects of the Atkins decision that would be critical in this case. First, the constitutional protections in Atkins applied retroactively, which meant that Blumfield could not be executed if he had a covered intellectual disability. Second, according to spurious reasoning in Atkins, the constitutional right not to be executed, when one has an intellectual disability, may be implemented somewhat differently based on state preferences, as long as the end-result is not demonstrably unfair or unreasonable. In other words, the U.S. Constitution means different things depending on the jurisdiction in which one resides.
And third, the implementation of most constitutional criminal rights, including those promised under Atkins, have been further restricted—and arguably marginalized—by federal limitations on defendants’ rights to appeal established under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That act grants extreme deference to state courts in making determinations that obviously impinge upon fundamental constitutional rights. In order to overcome what the dissent notes is a “`highly deferential standard for evaluating state-court rulings… the prisoner must rebut any… factual findings he seeks to challenge by clear and convincing evidence.”
Under the criteria that the Louisiana Supreme Court established in State v. Williams, 831 So. 2d 835 (2001), the existence of a qualifying intellectual disability—then referred to as mental retardation—has three essential components, which Blumfield had to prove under a “reasonable ground to believe” evidentiary standard. There is no automatic entitlement to an Atkins hearing. Those three “distinct” requirements were: an objective standardized IQ test result that showed “subaverage intelligence”; “significant impairment in several areas of adaptive skills”; and “manifestations” of these intellectual impairments “in the developmental stage,” meaning before a person becomes an adult, which itself is a matter of continuing scientific and scholarly debate.
Under Blumfield's original Atkins claim, made to a Louisiana lower court the year after Atkins had been decided, his lawyer reprised retrospective “mitigating evidence introduced at the sentencing phase of the trial.” This evidence included Blumfield’s mother's observations about him as a child, a social history compiled by an expert with a doctorate in social work, and the results of tests that a clinical neuropsychologist had performed. The most persuasive evidence, according to the state judge, was the neuropsychologist's apparent conclusion that Blumfield’s IQ test score was 75. That expert also testified Blumfield had been confined in psychiatric hospitals as a child, had various learning impairments, and had been placed in special education classes. Blumfield also had asked for publicly financed expert assistance to retain an expert to further document his claims with new and more current evidence, which was not limited to the carefully selected mitigating evidence, which probably had been culled of information that could be used to justify the death penalty.
The Louisiana trial court, seemingly intent on preventing Blumfield from escaping the death penalty, appeared to create a scenario that would deny the appellant an opportunity to prove the existence of his intellectual disability, so that the state could move forward with the execution. The court simply ignored Blumfield’s request for expert assistance, which undoubtedly would have provided additional evidence needed to prove that he had an intellectual disability. The judge then observed, without any specific documentation in the record, that another expert had implicitly opined that Blumfield's IQ was “`a little higher” than 75. The judge also implied that Blumfield could not possibly demonstrate that he had a protected intellectual disability, because Blumfield had been diagnosed as an “antisocial personality” or a “sociopath,” which somehow precluded the defendant from having a protected intellectual disability as well.
Blumfield attempt to convince the state supreme court to review the lower court's denial of his application for an Atkins hearing was summarily denied. Thus, the appellant’s only recourse was to apply for relief under the extreme limitations of the AEDPA. Under this draconian law, Blumfield had to establish that either the denial of his petition was “`contrary to, or involved an unreasonable application of, established Federal law'” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'”
A federal district court concluded that the conduct of the Louisiana court was so out-of-line that it satisfied both prongs of the AEDPA for granting an appeal. First, federal due process clearly had been violated in denying Blumfield funding to develop his Atkins claim. Second, the state court's factual conclusions constituted “`an unreasonable determination of the facts in light of the evidence presented....'” In addition, based on a separate evidentiary proceeding, which the federal court had presided over, Blumfield clearly established that he had an intellectual disability that satisfied the three requirements mandated by Louisiana's Atkins criteria. In particular, various IQ tests “indicated that Blumfield had an IQ score between 65 and 75,” and expert testimony established marked deficiencies in Blumfield’s “adaptive behavior and `significantly limited conceptual skills.'”
The U.S. Court of Appeals reversed, finding that Blumfield's federal petition “fail[ed] to satisfy either of [the AEDPA's] requirements.” To begin with, there was no clearly established federal law requiring a state court to provide Blumfield the “funds necessary to make a threshold showing of intellectual disability.” Furthermore, the state court “`did not abuse its discretion when it denied Blumfield an evidentiary hearing.'” As a result, there was no need to review the district court's finding that the appellant was “in fact, intellectually disabled.'” Apparently, according to Justice Thomas’ dissent, it was more just to execute Blumfield as expeditiously as possible based on the will of the jury, then to further anguish the victim’s family, even if there was a significant possibility Blumfield had an intellectual disability.
Justice Sotomayor's majority opinion, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, took a narrow and circuitous path to overturn the Fifth Circuit. It relied almost exclusively on the factual evidence before the state court, which was ambiguous, in large part because it was incomplete. The Court focused on Blumfield's IQ score and evidence of “the existence of adaptive impairment.”
Justice Sotomayor noted, however, that the standard for the Court’s review under the AEDPA “requires that we accord the state trial court substantial deference.” That deference was superseded in these individual circumstances because the state court's “critical factual determinations were unreasonable.” Under this principle of law, unless the state court acts unreasonably on the record, which most judges are smart enough to avoid doing, there is little that can be done to protect the constitutional rights of these capital defendants and death row inmates. In reaching the proper verdict in this case, the majority engaged in what Thomas’s dissent described as “a bit of legerdemain, recasting legal determinations as factual ones.” The majority’s conceit, however, allowed Supreme Court to conclude that the evidence Blumfield presented to the state court “was entirely consistent with intellectual disability as defined in Louisiana and thus sufficient to entitle him to an evidentiary hearing.”
That conceit also made it possible for the majority to avoid having to address the substantially more important questions involving the due process rights of defendants and death row inmates to publicly-financed expert assistance when pursuing legitimate Atkins’ claims. In this particular case, Blumfield had to depend almost entirely on retrospective evidence gleaned from the original sentencing proceedings, which, as the majority noted, could have been used to impose the death penalty, as well as to support a plea for mitigation. The dissent dismissed this denial as being “neither contrary to, nor an unreasonable application of clearly established federal law as determined by this Court….No decision of this Court requires a State to afford a defendant funds to do so.’”
For many years now, this type of publicly-funded expert assistance has been required when a defendant decides to plead insanity. See, Ake v. Oklahoma, 470 U.S. 68 (1985). Certainly the life and death aspect of an Atkins proceeding is no less important. Furthermore, while the Court has never ruled that an insanity defense is constitutionally required, it has ruled that a defendant with a protected intellectual disability has a constitutional right not to be executed.
Nevertheless, the fact that Justice Kennedy’s vote—once again—was crucial in forming the five justice majority in Blumfield, suggests that he—and perhaps other justices forming the majority—either would have voted with the four dissenters on this particular issue, or just preferred not to address it at all. In any case, it appears that there were not enough votes on the Court to go forward. In bypassing the opportunity to decide this compelling issue, the justices ensured that the right to essential expert assistance in these constitutionally mandated death penalty proceedings would remain a grey area. Unfortunately, this continuing silence provides courts in death penalty jurisdictions with a strong justification for denying such assistance, which is usually essential to establish an Atkins claim.
The majority opinion also chose to “presume that a rule according an evidentiary hearing only to those capital defendants who raise a `reasonable doubt' as to their intellectual disability is consistent with... Atkins.” As the dissent pointed out, this meant that “the burden was on the prisoner to bring forward objective evidence to put his mental retardation in issue.” Moreover, without expert assistance, raising such a doubt is likely to be an unreasonable burden to overcome, especially for most such defendants who are not represented by highly competent lawyers.
In fact, the entire procedural landscape that surrounds Atkins’ claims is tainted with an unfair deference to the states, both with respect to implementing the constitutional requirements of that opinion and short-circuiting appeals when defendants believe their constitutional rights have been denied. This high deference is especially problematic when one considers that Atkins only is relevant in those jurisdictions that continue to execute capital defendants. In many of those jurisdictions, the entire governmental apparatus seems hell-bent on executing as many capital defendants as possible, regardless of their mental status. For example, a New York Times story in early July profiled the acting district attorney of Louisiana’s Caddo Parish, who is a strong proponent for more executions. Although his parish already sentences more defendants to death per capita than any other jurisdiction in the United States, he contends the death penalty is “rightly about revenge and…the state needs to `kill [even] more people.’”
If extreme deference to those states that still use the death penalty was not disturbing enough, the majority points out that in all of those jurisdictions there is another major inequity. Capital defendants, who present evidence at sentencing supporting the position that they have intellectual disabilities (or any mental disorder for that matter), run the “risk” that it will “'enhance the likelihood of … future dangerousness be[ing] found by the jury.” Such a finding justifies the imposition of the death penalty. In fact studies indicate that it is the single most important consideration. Thus, strategically, “penalty-phase evidence of intellectual disability can be a `two-edged sword....'” It can be used as mitigation by the defense, as well as the proof needed for the prosecution to obtain a death penalty verdict.
The logic behind the existence of this cruel paradox is steeped in sanist beliefs, which generally allow a person's diminished culpability due to a mental condition or disorder to be ignored for the purpose of mitigation, but to be used instead to further punish that individual or deprive him or her of liberty and other constitutional rights. As a result, defendants and inmates with mental disabilities are far more likely to be viewed as dangerous—deserving greater periods of confinement, custodial care, and deprivations of their fundamental rights, including the death penalty—than as being less culpable, and thus eligible for mitigated sentencing. Yet, the Supreme Court continues to ignore this obvious injustice and instead embraces its past rulings on dangerousness, especially Barefoot v. Estelle, 463 U.S. 880 (1983), which amplify this inequity.
As a practical matter, the Blumfield ruling bolsters the view that if states are intent on executing a defendant with an intellectual disability, there remain many opportunities to accomplish this result, legally. The best—albeit very limited—hope for these defendants is if they happen to find a particularly diligent and competent lawyer, who has access to the necessary expert assistance to build a persuasive Atkins appeal, and the judge selected to hear that plea has an open mind regarding mental disorders. Otherwise, these mostly despised and feared defendants and prisoners are likely to become trophies for zealous prosecutors, who typically have access to almost unlimited resources to ensure that the death penalty is obtained and an execution is carried out.
In this truly extraordinary case, all the stars appear to have converged to temporarily block the injustice that was about to befall Blumfield, giving him an improbable opportunity for the Supreme Court to review his case and to overcome the high deference due the state court, which had denied him his constitutional rights. Furthermore, Blumfield overcame a threshold layer of deference, which mandates that states be allowed to create their own criteria for determining the existence of a qualifying intellectual disability. Louisiana, like many states that still have the death penalty, takes a restrictive view as to what constitutes an intellectual disability and continues to try to find ways to make it more restrictive.
As described earlier, Louisiana has three separate prongs to its definition and requires defendants or prisoners to prove the existence of all three just to obtain a hearing. In instances in which there is likely to be a close call, these states want the criteria to favor execution, regardless of the possibility that mistakes are being made in the process. These jurisdictions, along with the dissenters in this case, appear to view such mistakes as being justified in protecting the interests of the victims and their families. In Thomas’ words,
What is perhaps more disheartening than the majority’s disregard for both AEDPA and our precedents is its disregard for the human costs of its decision. It spares not a thought for the 20 years of judicial proceedings that its decision so casually extends…. Betty Smothers [the victim]… and her family—not to mention the legal system—deserve better.
The reality is that the constitutional right articulated in the Atkins decision is extremely limited and the tiny window opened by the majority in this case demonstrates how difficult it is for an Atkins applicant to succeed on appeal, even if a state court makes a clear error. As the Supreme Court observed in a previous decision, Harrington v. Richter, 562 U.S. 86 (2011), the standard for review is “`difficult to meet… because it was meant to be.’”
The extremely limited constitutional right in Atkins has much less to do with the totality of a defendant's cognitive impairment at the time he or she is facing execution, and everything to do with the unique nature of the mental impairment involved. The right only applies to a very narrow definition of intellectual disability because it was originally based on mental retardation alone. Defendants with comparable or even worse cognitive impairments that do not meet that narrow, politically popular definition cannot successfully petition for dispensation from the death penalty under Atkins, because it does not apply to them.
No amount of evidence about the severity of various other mental conditions has made much of an impact on the courts or our legislatures with regard to expanding the right of people with severe mental disabilities not to be executed under the Atkins rationale. Even the combined voices of the American Bar Association, the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness, and the National Mental Health Association have failed to quell this continuing desire to execute capital defendants with severe mental disabilities.
Thirteen years later, the Atkins decision now appears to be a one-time judicial fluke, which will not be expanded to cover other mental disabilities, and has been substantially narrowed by states’ rights preclusions. This extreme deference to states’ rights has meant that in Atkins, as in many other fundamentally important matters, what the Constitution demands is different depending on the state involved, unless the protection involves the Second Amendment. When such arguably unconstitutional and unconscionable deference is combined with ignorance and stereotypes about people with mental disabilities, the outcomes can be especially dismissive and pernicious as demonstrated in Justice Thomas' dissent, joined for the most part by Chief Justice Roberts and Justices Scalia and Alito.
The dissenters appeared to be offended that a convicted murderer would be given an opportunity to prove that he had an intellectual disability. Ostensibly they objected because “`[f]ederal collateral review of state convictions interrupts the enforcement of state criminal laws and undermines the finality of state-court judgments.” (Of course, nothing can be more final than an execution.) In reality, though, as Thomas makes abundantly clear, this case is about “contrasts.” Good people versus bad people; a police officer victim versus a murder defendant with obvious mental disabilities. The fact that Blumfield’s impairments appear to have been caused in part by his being physically abused in awful ways by his stepfather brought him not an ounce of sympathy. In fact, it was used to make the argument that it made Blumfield a dangerous “sociopath” or “antisocial personality,” deserving of the death penalty, regardless of his other cognitive impairments.