In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.
I contend that there are multiple overlapping reasons for this reality: 1. Ongoing prosecutorial misconduct, aided and abetted sometimes by explicit judicial bias, but more often, by what I call passive judicial complicity. 2. Explicit juror bias, what I call sanism, in individual cases. 3. The consistently pretextual positions of four current Supreme Court judges in all matters dealing with the overlap between mental disability and criminal behavior. 4. Lack of availability of trained counsel -- from the first stages of the lawyer-client relationship -- that can accurately identify mental disability, and then (a) strategically plan mental disability-based defenses and/or mitigation strategies, and (b) engage appropriate experts to assist in trial preparation and trial, a problem magnified by Murray v. Giarratano, holding that there is no constitutional right to collateral review or to the assistance of counsel in collateral proceedings. 5. The lower courts’ penurious interpretations of Ake v. Oklahoma in cases involving defendants with intellectual disabilities or severe neurological disorders.
In this paper, I will assess why we blind ourselves to this reality, and how this reality mocks any possibility that the death penalty can ever be administered in a “fair” way. I will also examine these issues through the lens of therapeutic jurisprudence and will conclude that our current system utterly rejects the bedrock principles of that school of jurisprudence -- voice, validation and voluntariness -- in ways that contribute to true mockeries of justice.
73 Wash. & Lee L. Rev. 1501 2016