ARBITRARINESS: Almost All Recently Executed Inmates Possessed Qualities Similar to Those Spared

Some defendants who commit murder are automatically excluded from the death penalty in the U.S., such as juveniles and the intellectually disabled. Others with similar deficits are regularly executed. A new study by Robert Smith (l.), Sophie Cull, and Zoe Robinson examined the mitigating evidence present in 100 recent cases resulting in execution, testing whether the offenders possessed qualities similar to those spared from execution. The authors found that "Nearly nine of every ten executed offenders possessed an intellectual impairment, had not yet reached their twenty-first birthday, suffered from a severe mental illness, or endured marked childhood trauma." In particular, "One-third of the last hundred executed offenders were burdened by intellectual disability, borderline intellectual functioning, or traumatic brain injury;" "More than one-third of executed offenders committed a capital crime before turning twenty-five—the age at which the brain fully matures;" and "Over half of the last one hundred executed offenders had been diagnosed with or displayed symptoms of a severe mental illness."

"Fifty percent of the last hundred executed defendants around the country suffered from complex trauma ... severe physical abuse, sexual molestations, domestic violence, the violent loss of immediate family and chronic homelessness."

The authors concluded, "This ubiquity of mitigation evidence present in the social histories of executed offenders should give pause to those charged with assessing the proper functioning of the death penalty in America. ... [O]ur project suggests the need for other scholars to conduct more comprehensive examinations of both the failings of the Court’s mitigation-facilitating doctrines as well as the implication for these deficits on the continued constitutionality of the death penalty."

(R. Smith, S. Cull, and Z. Robinson, "The Failure of Mitigation?," 65 Hastings Law Journal 1221 (2014); DPIC posted June 19, 2014). See Studies and Arbitrariness.