Supreme Court Dispatches

Killing Time

Will the Supreme Court let Louisiana execute a man who says he’s intellectually disabled?

U.S. Supreme Court building
Kevan Brumfield is asking the Supreme Court for the chance to prove that he is mentally disabled and thus constitutionally exempt from the death penalty.

Photo illustration by Juliana Jiménez Jaramillo. Photo by Thinkstock.

It is a sad fact of the criminal justice system that those states that most enthusiastically administer the death penalty are also the most incompetent at doing so. Take Louisiana, which, on Monday, found itself before the Supreme Court yet again arguing for the right to execute a death row inmate in Brumfield v. Cain. The prisoner, Kevan Brumfield, claims to be developmentally disabled—which, if true, would disqualify him for capital punishment. But Louisiana claims Brumfield is perfectly sound of mind.

The problem here arises from Atkins v. Virginia, a 2002 case in which the justices decided that the execution of the mentally challenged violates the Eighth Amendment’s ban on “cruel and unusual punishment.” (In dissent, Justice Antonin Scalia groused that the symptoms of “mental retardation” can “readily be feigned.”) The justices left the states to decide how to ascertain which of their pre-Atkins inmates were too incompetent to be executed.

Brumfield was tried and convicted before Atkins came down. Once the decision was announced, he asked the state for a hearing to let him prove his disability. A Louisiana court denied his request, asserting that evidence put forth at Brumfield’s sentencing hearing amply demonstrated that he was not mentally challenged. Several appeals later, Brumfield is asking the Supreme Court for the chance to prove that he is mentally disabled and thus constitutionally exempt from the death penalty.

Unlike most capital punishment cases that make it this far, the stakes in Brumfield’s appeal are unusually low. Atkins was decided a long time ago; if it were a human, it’d be having its bar mitzvah right about now. Very few inmates who were sentenced pre-Atkins are both alive and incompetent today. If the justices rule in favor of Brumfield, they won’t be opening the floodgates to a thousand so-called Atkins claims. Realistically, the most they’ll be doing is saving Brumfield’s life.

When Brumfield’s lawyer Michael DeSanctis approaches the lectern, he seems determined to whittle this case down to a few basic questions. All the justices need to do, DeSanctis explains, is find that the Louisiana court’s determination that Brumfield is not disabled—without giving him a chance to prove that he is—is “unreasonable” under federal law. This should be pretty easy to do. All the state court did was read Brumfield’s sentencing hearing, when defendants get to put forward the “mitigating factors” to convince a jury they don’t deserve the death penalty. But that hearing occurred pre-Atkins. Accordingly, Brumfield deserves another chance to prove his intellectual disability.

Justice Samuel Alito jumps in with a hypothetical involving a Hannibal Lecter–type brilliant killer.

“Suppose that at the penalty phase proceeding there’s evidence of five IQ tests, all above 140,” he says. Could the state then deny the prisoner an opportunity to prove he’s mentally challenged?

“That’s obviously not our case,” DeSanctis responds—but, yes, that would probably be OK. “We are not asking for a bright-line rule in a situation where there is uncontested evidence.”

Alito sharpens his knife. “So it’s not necessarily unconstitutional to regard the death penalty phase as determinative.”

“It is in this case on this record,” DeSanctis reiterates. Scalia elbows in, asking why Brumfield didn’t raise his intellectual disability before Atkins came down. DeSanctis keeps his cool: Before Atkins, having a disability didn’t spare you from the death penalty. Scalia essentially asks why Brumfield didn’t read the Supreme Court’s mind and raise his disability anyway.

“Let’s get rid of that argument that Atkins had not been decided,” he says. “That had nothing to do with the case, right?”

DeSanctis seems to struggle for a moment to keep from yelling that Atkins has everything to do with this case. He stays calm and presses on, explaining that, in fact, Brumfield put forth loads to evidence—even before Atkins!—suggesting a mental deficit: an IQ of 75, a history of special education and mental hospitalization, possible neurological trauma, slow motor development, an elementary school reading level. Scalia is not impressed, because a single expert opined that Brumfield might not be disabled. “I would think that’s enough for the state court to hang its hat on,” he tells DeSanctis.

A few minutes later, Justice Stephen Breyer decides DeSanctis isn’t presenting his case well enough and decides to do it for him. All you’re really saying, Breyer tells  DeSanctis, is that when a death row inmate was convicted pre-Atkins, and his record suggests the existence of a disability, the inmate must get another chance to prove he’s mentally challenged.

“Isn’t that your argument?” Breyer asks, leaning forward, eyes wide, arms spread out.

“That is our argument,” DeSanctis replies. Everybody laughs.

That turns out to be the highlight of the morning because when Premila Burns approaches the bench to defend Louisiana, she makes it clear that she doesn’t see anything humorous in Brumfield’s continued existence. Burns’ entire argument is that Brumfield should have presented more evidence of his mental condition at his sentencing hearing; that he didn’t suggests he is, in fact, competent. Justice Sonia Sotomayor asks whether Brumfield might have attempted to downplay his disability, perhaps because a jury could be prejudiced against a mentally challenged convict.

“If I may disagree with that,” Burns says, taking a surprisingly sharp tone. “The rationale of this court in Atkins is that we are an evolving, decent society that will not have a consensus to execute mentally retarded people. That flies in the face of saying that juries are more inclined to execute them if they show some evidence of mental retardation.” Burns’ snide affect catches everyone by surprise, and those of us in the press alcove exchange alarmed glances. Note to aspiring Supreme Court advocates: Do not talk to justices this way.

Breyer steps in to play peacemaker. “We’re all on the same page,” he says, attempting to find common ground in the need to read Brumfield’s trial record, which spans 20 volumes. Scalia promptly butts in with the line of the day, telling Burns, “I haven’t read the whole record, you know, and I doubt I’m going to. And I doubt that this court is going to read the whole record in all of these Atkins cases in the future.” Chief Justice John Roberts, who usually has freakishly good control over his facial expressions, flashes a look that falls somewhere between a grimace and a giggle.

The arguments go downhill from there, as Burns tries to make Brumfield into a Mensa member and Scalia feeds her talking points. It’s all a bit dry and dreary for a case that could decide whether a human being lives or dies. But then, that’s what the court’s death sentence jurisprudence has come to look like. Every few years, the justices craft a new Eighth Amendment rule to “enforce the Constitution’s protection of human dignity.” Then states such as Louisiana see how far they can bend those rules until they break. The justices know that Louisiana bent the Atkins rule to keep Brumfield on death row. But did the state break the rule altogether? The answer to that question will determine whether Brumfield gets a new shot at justice or a lethal shot in the arm.