Will the justices add another death-penalty hurdle?

Photographer: Nicholas Kamm/AFP/Getty Images

Making Executions More Costly and Less Common

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The U.S. Supreme Court in its infinite wisdom says that executing a person of reduced mental capacity is cruel and unusual punishment. On Monday, it took up the question of whether a convicted defendant should get a separate hearing, apart from the death penalty determination, to ascertain what the court still calls mental retardation. Under the surface, however, the case is really about something else: As the Supreme Court chips away at the death penalty, should it multiply procedural hurdles to make it harder and harder to administer?

The facts of the case, Brumfield v. Cain, are confusing. To simplify, Kevan Brumfield was convicted in a Louisiana court of murdering a police officer in 1993 and got the death penalty -- before the Supreme Court held in a 2002 case called Atkins v. Virginia that those it considered mentally retarded couldn't be executed. After the Atkins decision, Brumfield's lawyers went to the Louisiana courts to ask for a post-conviction determination that he wasn't eligible for the death penalty because he was mentally retarded under the terms of the new holding. On two IQ tests, Brumfield scored once a 75 and once a little higher.

QuickTake Lethal Injections

The state courts decided that, under the Atkins precedent, not everyone was entitled to a special post-conviction hearing to determine mental capacity. In essence, they thought Brumfield’s claim wasn’t plausible enough to merit a separate hearing. The state courts also ignored a request made by Brumfield's lawyers for money to hire an expert on mental capacity.

Stymied in the state post-conviction relief process, Brumfield went to federal court. There he had better luck -- at first. A federal district court appointed the expert and gave Brumfield a hearing, after which the judge determined that he lacks the mental capacity to be executed.

The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision that Brumfield couldn't be executed. In its view, the state court, in denying Brumfield's request for special hearing, decided on the merits that Brumfield wasn't retarded for purposes of execution. Under a special law that governs federal review of state post-conviction procedures -- a law known somewhat shockingly as the Antiterrorism and Effective Death Penalty Act -- a federal court must defer to a state's reasonable determination. Brumfield was therefore rescheduled for execution.

Before the Supreme Court, Brumfield’s lawyers, who obviously want to save his life, will focus on the point that the Louisiana court never really heard his claim to be mentally retarded, and mistakenly relied on evidence gathered at the penalty phase of his trial, which was conducted before the Supreme Court had ever said that people with reduced mental capacity couldn't be executed.

But what's at stake in the case goes beyond Brumfield's life.

When the Supreme Court decided that the death penalty couldn’t be applied to those lacking sufficient mental capacity, it left all the details to the state courts. As a result, last year the court had to consider the states’ use of IQ scores within or outside the standard deviation of error. Today's case similarly arises from the Supreme Court's refusal to specify what procedures states must use to determine mental capacity.

If the Supreme Court now decides in favor of Brumfield, the decision won't just affect defendants who, like Brumfield, were convicted and sentenced to death before the 2002 Atkins decision. Going forward, it would specify to the states that they must conduct a distinctive inquiry into the mental capacity of people they're going to execute. Very possibly, the court might under these circumstances also require states to pay for experts to help defendants argue their incapacity.

The effect of such a decision would be to increase substantially the cost and complexity of administering the death penalty. Already Supreme Court doctrine requires that a case be divided into two phases, one determining the guilt or innocence and the other determining eligibility for the death penalty. Although a capacity determination could potentially be folded into the second determination, in practical terms the court would be creating a third component of the trial, one focusing on mental capacity. In the case of intelligent or highly intelligent defendants, this component might be minimal. But in many cases, the effort and expense would be substantial.

To supporters of capital punishment, the multiplication of procedural hurdles before execution may seem wasteful. Every extra expense the state must incur to get the death penalty provides another incentive for prosecutors to skip it and settle for life without parole.

To death penalty opponents, the conclusion will be the opposite: the harder the Supreme Court makes it to execute someone, the better.

What's at stake, then, is really the Supreme Court's strategy in addressing the death penalty. So far the contemporary court has shown little interest in banning the death penalty altogether. Instead, its approach in recent years has been to contribute to a declining frequency of imposed capital punishment by carving out classes of people who can't be executed, such as juvenile offenders and  those considered mentally retarded.

The court, in other words, is using judicial procedures sort of the way capital offenders do -- as a tool to delay and reduce capital punishment.

It's no coincidence that a leading voice in this gradual process has been Justice Anthony Kennedy. In the context of gay rights, Kennedy has emerged as the court’s defining gradualist. He wrote his first landmark gay-rights decision in 1996; his second in 2003; his third in 2013. The fourth is expected in June.

If the court continues its gradual limitation of the death penalty in Brumfield’s case, expect Kennedy to be the deciding vote.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net