Double Take: Justices Revisit Execution of People with Mental Retardation and Civil Commitment of Sex Offenders

Statement of Vivian Berger,
ACLU General Counsel

This Term, the Court will revisit cases concerning two important civil liberties questions: the execution of people with mental retardation and the civil commitment of sex offenders.

In one of the most significant cert grants of the new Term, the Court yesterday agreed to hear Atkins v. Virginia (00-8452), a substantive, “categorical” challenge to the infliction of capital punishment on persons suffering from mental retardation. At the same time, the Court dismissed its previous decision to review McCarver v. North Carolina, following the recent passage of a North Carolina statute banning such executions.

The Court has previously decided cases attacking the imposition of death on classes such as youths, rapists of adult women, non-“triggerman” felony murderers, and inmates who are insane at the time of execution. Indeed, in Penry v. Lynaugh in 1989, by a bare majority, it had heard and rejected the claim of immunity to death that petitioner Atkins currently raises. (Under Penry, retarded defendants can only try to persuade the jury that their mental condition mitigates the crime.)

Controlling Eighth Amendment law forbidding “cruel and unusual punishment” looks to whether a particular practice, like executing the mentally retarded, is at odds with “evolving standards of decency that mark the progress of a maturing society.” An affirmative answer requires the Justices to find sufficient signs of consensus — especially, in the legislatures — of societal repudiation of the death penalty in this context.

In a brief submitted by the ACLU and a number of other amici curiae in the McCarver case, petitioner had contended that, whatever was true at the time of Penry (when only two states had exempted the retarded from execution), that consensus exists now. The principal evidence for this conclusion is that 18 states and the federal government statutorily ban the infliction of death on such persons. Since 12 states and the District of Columbia outlaw capital punishment entirely, retarded defendants cannot be killed in a majority of jurisdictions; moreover, state laws to the same effect are being proposed, and enacted, at a growing rate.

Simply put, the legislative landscape reflects recognition that death is a disproportionate penalty for these severely impaired individuals. They lack the same capacity as others for rational choice, moral reasoning, and appreciation of consequences; furthermore, they are often impulsive and susceptible to influence. Because of their diminished culpability, understanding and control, capital punishment of the retarded does not serve the principal penological goals of retribution and deterrence. It is, thus, unsurprising (though shocking) that only one other country in the world — Kyrgyztan — regularly kills the retarded.

Finally, the ACLU’s McCarver brief had focused on the practical realities that make the approach endorsed by Penry — use of mental retardation as a mitigating factor — totally inadequate. As we show, procedural minefields as well as ineffective performance by, and provision of, counsel place the retarded “at special risk of erroneous and unlawful execution.”

The question of whether states may indefinitely detain sexual offenders after the end of their prison terms is one that has increasingly occupied the Court’s attention in recent years.

For example, in Seling v. Young, the Court last Term upheld an as-applied challenge to Washington’s sexually violent predator statute against double jeopardy and ex post facto attacks; in 1997, in Kansas v. Hendricks, the Court had sustained that state’s virtually identical law against a facial attack on these grounds.

Hendricks also rejected respondent’s due process claim that he could not be civilly committed as a “sexually violent predator” absent a finding of “mental illness.” Justice Thomas wrote that the finding that Hendricks suffered from a “mental abnormality” (pedophilia), which rendered him unable to control his urge to molest children and, therefore, made him dangerous to others, constituted a valid basis for continuing to hold him after the end of his prison term for a sexual offense.

Kansas v. Crane (00-957), now pending on cert, presents the question of whether the state may indefinitely detain a sexual offender with an “antisocial personality disorder” absent a finding that he cannot control his criminal behavior. The Kansas Supreme Court held that it could not.

Supporting Crane as amicus curiae, the ACLU urges affirmance of this ruling. As we argue in our brief, a mere showing that an offender — such as Crane — has a personality disorder and is likely to reoffend, permits supposedly civil commitment of “an ordinary recidivist who is otherwise a proper target for criminal penalties.” The punitive and pretextual use of the civil law violates the principles set out in Hendricks — which are deeply rooted in the common law as well as the Court’s own jurisprudence — and is, accordingly, unconstitutional.

The second case dealing with a sexual offender, McKune v. Lile (00-1187), also involves a Kansas inmate. In this case, the state demanded that, as a condition for taking part in a “recommended” Sexual Abuse Treatment Program (SATP), Lile admit not only the crime underlying his sentence (which he had denied in his trial testimony) but also his whole sexual history, including any uncharged sex offenses. Because he faced a serious risk of self-incrimination with respect to both sexual crimes and perjury, Lile declined to participate in the program. His refusal meant that he would be subject to significant adverse consequences: an automatic transfer from medium to maximum security housing, with resulting loss of job, canteen, visitation and prison programming privileges.

In this Section 1983 action, petitioner argues, and the Tenth Circuit Court of Appeals agreed, that — absent immunity, which is not offered –these provisions of the SATP impose an unconstitutional penalty on the exercise of his rights and thereby violate the Fifth Amendment protection against self-incrimination. Prison officials, on the other hand, contend that the case has less to do with constitutional rights than prison management.