The Death Penalty, Intellectual Disability, and Warrick Dunn

The United States Supreme Court just decided a capital case about intellectual disability, formerly known as mental retardation. In some ways, it’s an “error correction” case that doesn’t break new doctrinal ground. But it stands out for two reasons. First, it may be indicative of the current Court’s attitude towards the death penalty. And second, Justice Thomas wrote a dissenting opinion focused in large part on former professional football player Warrick Dunn.

Facts. The case is Brumfield v. Cain, 576 U.S. __ (2015). The defendant and an accomplice shot and killed an off-duty police officer who was working as a security guard, escorting a grocery store manager to the bank to make a deposit.

Procedural history. The defendant was convicted of murder. At his capital sentencing hearing, he introduced evidence that he had an IQ of 75, read at the fourth grade level, and had been placed in special education classes. Despite this mitigating evidence, he was sentenced to death.

After the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the imposition of the death penalty on the intellectually disabled violates the Eighth Amendment), the defendant requested an evidentiary hearing in Louisiana state court on the issue of intellectual disability, and sought funds for investigation in anticipation of the hearing. The state court denied him both the funding and the hearing, finding that his preliminary showing did not provide a reasonable ground to believe that he may be intellectually disabled. A federal district court ruled otherwise, taking evidence and finding that the defendant’s IQ was likely between 65 and 70 and that he was intellectually disabled. The Fifth Circuit reversed, agreeing with the state court.

Ruling. The Supreme Court reversed again. Justice Sotomayor, writing for five Justices, ruled that the state court’s denial of a hearing was unreasonable. To the extent that the state court based its conclusion on the IQ score of 75, the Court cited Hall v. Florida, 572 U.S. __ (2014) (holding that requiring an IQ score of 70 or below to prove intellectual disability violates the Eighth Amendment), and stated that “[a]ccounting for [the standard error of measurement], Brumfield’s reported IQ test result of 75 was squarely in the range of potential intellectual disability.”

To the extent that the state court based its ruling on the absence of evidence of deficiencies in adaptive functioning, the Court ruled that this was likewise unreasonable. The defendant’s difficulties in school and limited ability to read suggested deficits in “learning” and “understanding and use of language,” and the evidence presented at the sentencing hearing suggested that he may have had other adaptive deficits as well. The Court acknowledged that there was conflicting evidence on the defendant’s level of functioning, and that his crime required some foresight and planning. Still, it found that the defendant clearly adduced enough evidence to be entitled to a hearing.

Commentary. In some ways, this case is nothing more than an application of Hall to a disputed set of facts. But it may also suggest that there are at least five Justices who will accept a death verdict only if the defendant has been given every procedural protection and the benefit of every doubt, not just at trial, but also on appeal and on collateral review. This hypothesis – that the current court approves of the death penalty but only under near-perfect circumstances – may be confirmed or proved wrong when the Court decides the pending lethal injection case, Glossip v. Gross. Stay tuned.

The dissent. Finally, Justice Thomas wrote the principal dissent. He emphasized that the defendant’s own expert at trial opined that the defendant’s IQ was 75 or greater; stated that the defendant had a “normal capacity to learn . . . when given the opportunity for repetition”; and concluded that his “problem solving, judgment, and reasoning skills” were adequate. Justice Thomas also noted that the expert’s main diagnosis of the defendant was antisocial personality disorder.

In an unusual rhetorical maneuver, Justice Thomas then contrasted the defendant’s “argument that his actions were the product of his disadvantaged upbringing” with the victim’s children’s lives after her murder. The opinion focused mainly on Warrick Dunn, the victim’s eldest child. He became a professional football player and has done extensive charity work. He also took substantial responsibility for his five younger siblings.

Some Court watchers see this as a bizarre digression, a viewpoint typified by this Slate article. Even Justice Alito and Chief Justice Roberts, who otherwise joined Justice Thomas’s dissent, distanced themselves from the Warrick Dunn discussion, declining to join that section and remarking that “[t]he story recounted . . . is inspiring and will serve a very beneficial purpose if widely read,” but not “want[ing] to suggest that it is essential to the legal analysis in this case.” Although I admire Justice Thomas in some ways and have previously noted the excellence of his memoir, My Grandfather’s Son, I personally found the Warrick Dunn hagiography a little off-putting. I would be interested to hear others’ reactions.