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.”

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.