At the end of its term, the Supreme Court revealed its deep divisions over the death penalty. In Glossip v. Gross, the central issue was the constitutionality of a particular drug that Oklahoma used in its lethal injections. However, the decision took on new dimensions when Justice Stephen Breyer called upon the court to consider the more fundamental question of whether the death penalty itself is constitutional. Unsurprisingly, Justice Antonin Scalia responded with exasperation, saying that this issue has been raised and settled many times. “Welcome to Groundhog day,” he said.
While there may be intractable differences regarding the constitutionality of the death penalty, the justices are overlooking an area of death penalty jurisprudence where they can find common ground: surely it is unconstitutional to execute a person who would have been protected from execution when the Eighth Amendment was adopted in 1791. These early protections should be especially important to conservatives like Justice Scalia, who believe that the Constitution should be interpreted as it was originally intended. Yet in at least one area it appears that these ancient protections have been forgotten.
There is strong historical evidence that we currently execute some people with mental disabilities who would have been protected from such punishment when the Eighth Amendment prohibition on cruel and unusual punishment was adopted in 1791. At that time, protections existed that categorically prohibited the execution of people called “idiots” and “lunatics.” These terms are roughly analogous to people who are currently diagnosed with intellectual disabilities (formerly called mental retardation) and mental illness.
These terms sound jarring. And they should. Their contemporary meanings are laden with the painful history of mistreatment and marginalization of people with intellectual disabilities and mental illness. However, diving into the history of these words shows that in the context of capital punishment, we’re actually providing less protection for some people with mental disabilities than were provided when the Bill of Rights was first adopted.
The Framers and the common law tradition long held that it was “cruel” to execute “idiots.” The legal giants of the common law, such as Blackstone, Coke, and Hale, described the execution of these disabled people as “savage and inhuman,” a “miserable spectacle,” and “of extreme inhumanity and cruelty.” These strong statements led the Supreme Court in the 1980s to acknowledge that executing “idiots” violates the Eighth Amendment’s prohibition on “cruel and unusual punishment.” However, the Court altered who qualified as an “idiot” for purposes of capital punishment, and since then, this issue has largely lain dormant.