Evolving Standards of “Professional Societies” and the 8th Amendment

May 27th, 2014

In Hall v. Florida,  Justice Kennedy put great stock in the views of the American Psychology Association in determining the constitutionality of executing the defendant, whose IQ of 71 was above the state-imposed cutoff of 70. Justice Alito, in dissent, took great exception to this tact.

In these prior cases, when the Court referred to the evolving standards of a maturing “society,” the Court meant the standards of American society as a whole. Now, however, the Court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA).

In effect, the 8th Amendment now evolves not only in sync with what the states and the people are doing, but also what professional societies think.

I couldn’t help but recall Footnote 11 from Brown v. Board, which attempted to explain that Topeka’s segregation policy was unconstitutional, in part, based on social science research about the detriment to education caused by segregated schools. Is this really much different than what Kennedy did?

Alito alludes to this in his dissent:

First, because the views of professional associations often change,7 tying Eighth Amendment law to these views will lead to instability and continue to fuel pro­ tracted litigation. ….

Second, the Court’s approach implicitly calls upon the Judiciary either to follow every new change in the think­ ing of these professional organizations or to judge the validity of each new change. Here, for example, the Court tacitly makes the judgment that the diagnostic criteria for intellectual disability that prevailed at the time when Atkins was decided are no longer legitimate. The publica­ tions that Atkins cited differ markedly from more recent editions now endorsed by the Court. See 536 U. S., at 308, n. 3.

Third, the Court’s approach requires the Judiciary to determine which professional organizations are entitled to special deference. And what if professional organizations disagree? The Court provides no guidance for deciding which organizations’ views should govern.

Fourth, the Court binds Eighth Amendment law to definitions of intellectual disability that are promulgated for use in making a variety of decisions that are quite different from the decision whether the imposition of a death sentence in a particular case would serve a valid penological end.

The APA, which I’m sure has a vested interest in avoiding the execution of arguably anyone, has now been entrusted with defining the contours of a constitutional right.

Update: Following from a question, allow me to add some thoughts to my last comment about the APA’s vested interest.

As Justice Alito noted in his dissent, the APA’s goals are not penological. Their focus (rightly so) is on mental health, in this case of the defendant. They don’t focus on the broader issues of crime and justice (nor should they). In this sense, their interest is vested.

In 2001, the APA took a position opposing the death penalty, unless it complies with “psychological and social science.”

Therefore be it resolved that the American Psychological Association:
Calls upon each jurisdiction in the United States that imposes capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures that can be shown through psychological and other social science research to ameliorate the deficiencies identified above.

Now, the 8th Amendment now overlaps with the APA’s position. Unless a certain procedure complies with “social science,” it is banned.