On July 19 Prof. Charles Ogletree of Harvard University Law School wrote in the Washington Post about the future of the death penal­ty in the U.S. Noting that the U.S. Supreme Court recent­ly affirmed (Hall v. Florida) that exe­cut­ing defen­dants with intel­lec­tu­al dis­abil­i­ties serves ​“no legit­i­mate peno­log­i­cal pur­pose,” Prof. Ogletree said this rea­son­ing could be applied to the whole death penal­ty: ​“The over­whelm­ing major­i­ty of those fac­ing exe­cu­tion today have what the court termed in Hall to be dimin­ished cul­pa­bil­i­ty. Severe func­tion­al deficits are the rule, not the excep­tion, among the indi­vid­u­als who pop­u­late the nation’s death rows.” He cit­ed a study pub­lished in the Hastings Law Journal that found that ​“the social his­to­ries of 100 peo­ple exe­cut­ed dur­ing 2012 and 2013 showed that the vast major­i­ty of exe­cut­ed offend­ers suf­fered from one or more sig­nif­i­cant cog­ni­tive and behav­ioral deficits,” such as men­tal ill­ness, youth­ful brain devel­op­ment, or abuse dur­ing child­hood. He con­clud­ed that when you exam­ine cap­i­tal pun­ish­ment more close­ly, ​“what you find is that the prac­tice of the death penal­ty and the com­mit­ment to human dig­ni­ty are not com­pat­i­ble.” Read the op-ed below.

The death penalty is incompatible with human dignity

By Charles J. Ogletree Jr.

I have won­dered count­less times over the past 30 years whether I would live to see the end of the death penal­ty in the United States. I now know that day will come, and I believe that the cur­rent Supreme Court will be its archi­tect.

In its rul­ing in Hall v. Florida in May, the court — with Justice Anthony M. Kennedy at the helm — remind­ed us that the core val­ue ani­mat­ing the Eighth Amendment’s cru­el and unusu­al pun­ish­ments clause is the preser­va­tion of human dig­ni­ty against the affront of unnec­es­sar­i­ly harsh pun­ish­ment. Hall, which pro­hib­it­ed a rigid test in use in Florida for gaug­ing whether a defen­dant is intel­lec­tu­al­ly dis­abled, was the most recent in a series of opin­ions in which the court has jux­ta­posed ret­ri­bu­tion — the idea of vengeance for a wrong­do­ing, which serves as the chief jus­ti­fi­ca­tion for the death penal­ty — with a recog­ni­tion of our hope­less­ly com­plex and fal­li­ble human nature.

What was impor­tant about Hall is the way Kennedy described the log­ic behind exempt­ing intel­lec­tu­al­ly dis­abled indi­vid­u­als from exe­cu­tion: ​“to impose the harsh­est of pun­ish­ments on an intel­lec­tu­al­ly dis­abled per­son vio­lates his or her inher­ent dig­ni­ty as a human being” because the ​“dimin­ished capac­i­ty of the intel­lec­tu­al­ly dis­abled lessens moral cul­pa­bil­i­ty and hence the ret­ribu­tive val­ue of the pun­ish­ment.” Though the court pre­vi­ous­ly barred impo­si­tion of the death penal­ty upon intel­lec­tu­al­ly dis­abled peo­ple, as well as juve­nile offend­ers, Hall marked the first time that it went so far as to claim that impos­ing the death penal­ty upon offend­ers with these kinds of func­tion­al impair­ments serves ​“no legit­i­mate peno­log­i­cal pur­pose.”

This is why I see an end com­ing to the death penal­ty in this coun­try. The over­whelm­ing major­i­ty of those fac­ing exe­cu­tion today have what the court termed in Hall to be dimin­ished cul­pa­bil­i­ty. Severe func­tion­al deficits are the rule, not the excep­tion, among the indi­vid­u­als who pop­u­late the nation’s death rows. A new study by Robert J. Smith, Sophie Cull and Zoë Robinson, pub­lished in Hastings Law Journal, of the social his­to­ries of 100 peo­ple exe­cut­ed dur­ing 2012 and 2013 showed that the vast major­i­ty of exe­cut­ed offend­ers suf­fered from one or more sig­nif­i­cant cog­ni­tive and behav­ioral deficits.

One-third of the offend­ers had intel­lec­tu­al dis­abil­i­ties, bor­der­line intel­lec­tu­al func­tion or trau­mat­ic brain injuries, a sim­i­lar­ly debil­i­tat­ing impair­ment. For exam­ple, the Texas Department of Corrections deter­mined that Elroy Chester had an IQ of 69. He attend­ed spe­cial edu­ca­tion class­es through­out school and nev­er func­tioned at a high­er lev­el than third grade. The state had pre­vi­ous­ly enrolled Chester into its Mentally Retarded Offenders Program. Despite these find­ings, Texas exe­cut­ed him on June 12, 2013.

More than half of the 100 had a severe men­tal ill­ness such as schiz­o­phre­nia, post-trau­mat­ic stress dis­or­der or psy­chosis. For exam­ple, for more than 40 years, Florida’s own psy­chi­a­trists found that John Ferguson suf­fered from severe men­tal ill­ness. Ferguson had a fixed delu­sion that he was the ​“Prince of God” who could not be killed and would rise up after his exe­cu­tion and fight along­side Jesus to save the United States from a com­mu­nist plot. When Ferguson was exe­cut­ed on Aug. 5, 2013, his last words were: ​“I just want every­one to know that I am the Prince of God and I will rise again.” A Florida court had called Mr. Ferguson’s delu­sions ​“nor­mal Christian beliefs.”

Many oth­er exe­cut­ed offend­ers endured unspeak­able abuse as chil­dren. Consider Daniel Cook, whose moth­er drank alco­hol and abused drugs while she was preg­nant with him. His moth­er and grand­par­ents molest­ed him as a young child, and his father phys­i­cal­ly abused him by, for exam­ple, light­ing a cig­a­rette and using it to burn Daniel’s gen­i­tals. Eventually the state placed Daniel in fos­ter care, but the abuse didn’t stop. A fos­ter par­ent chained him nude to a bed and raped him while oth­er adults watched from the next room through a one-way mir­ror. The pros­e­cu­tor respon­si­ble for Cook’s death sen­tence stood behind him dur­ing the clemen­cy process, telling author­i­ties that he would have tak­en the death penal­ty off of the table had he known of his tor­tur­ous child­hood. Arizona refused to com­mute Cook’s sen­tence, how­ev­er, and he died by lethal injec­tion on Aug. 8, 2012.

As the exe­cu­tion of Elroy Chester, John Ferguson, Daniel Cook and many more like them illus­trates, bar­ring the death penal­ty for intel­lec­tu­al­ly dis­abled and juve­nile offend­ers did not solve the death penalty’s dig­ni­ty prob­lem. Rather, those cas­es gave us cause to look more close­ly at the peo­ple whom we exe­cute. And when you look close­ly, what you find is that the prac­tice of the death penal­ty and the com­mit­ment to human dig­ni­ty are not com­pat­i­ble.
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Charles J. Ogletree Jr. is a pro­fes­sor at Harvard Law School.

(C. Ogletree, ​“The death penal­ty is incom­pat­i­ble with human dig­ni­ty,” Washington Post, July 19, 2014). See Arbitrariness and Studies. See an info­graph­ic about the study cit­ed in the aricle.

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