Supreme Court Declines to Review Death Sentence in Case in Which Federal Prosecutors and Defense Agree Defendant’s Intellectual Disability Makes Him Ineligible for the Death Penalty

In a rul­ing that pro­voked a sharp dis­sent from the Court’s lib­er­al minor­i­ty, the U.S. Supreme Court has declined to review the case of a death-row pris­on­er whom pros­e­cu­tors and defense lawyers agree is not eli­gi­ble for the death penal­ty as a result of recent revi­sions of the def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty by the medical community. 

Rebuffing a joint request by the U.S. Department of Justice (DOJ) and defense lawyers, the Court on November 1, 2021 denied a peti­tion by fed­er­al death-row pris­on­er Wesley Coonce to vacate his death sen­tence and return his case to a Missouri fed­er­al court to eval­u­ate his intel­lec­tu­al dis­abil­i­ty claim using cur­rent diag­nos­tic cri­te­ria for the dis­or­der. Justice Sonia Sotomayor (pic­tured), joined by Justices Stephen Breyer and Elena Kagan, dissented.

“To my knowl­edge, the Court has nev­er before denied a [request to grant cer­tio­rari, vacate the low­er court’s deci­sion, and remand the case to a low­er court for fur­ther review] in a cap­i­tal case where both par­ties have request­ed it,” Justice Sotomayor wrote, ​“let alone where a new devel­op­ment has cast the deci­sion below into such doubt.”

“This Court,” she wrote, ​“has an oblig­a­tion to pro­tect our Constitution’s man­dates.” Noting the par­ties’ agree­ment that Coonce is inel­i­gi­ble for the death penal­ty under cur­rent diag­nos­tic stan­dards for deter­min­ing intel­lec­tu­al dis­abil­i­ty, she said its fail­ure to vacate Coonce’s death sen­tence ​“falls short of ful­fill­ing that obligation today.”

Coonce’s claim that he is inel­i­gi­ble for the death penal­ty aris­es out of the Court’s 2002 rul­ing in Atkins v. Virginia that using the death penal­ty against indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty con­sti­tutes cru­el and unusu­al pun­ish­ment. Coonce’s pros­e­cu­tors and defense lawyers agree that he became intel­lec­tu­al­ly dis­abled at age 20 after sus­tain­ing a trau­mat­ic brain injury that caused bleed­ing around his brain and put him in a brief coma. 

When Coonce was tried, how­ev­er, the diag­nos­tic cri­te­ria for intel­lec­tu­al dis­abil­i­ty used by the American Association on Intellectual and Developmental Disability (AAIDD) required that the dis­or­der man­i­fest before age 18. His lawyers nev­er­the­less sought a hear­ing on his eli­gi­bil­i­ty for the death penal­ty, argu­ing that intel­lec­tu­al dis­abil­i­ty is a devel­op­men­tal dis­or­der that is diag­nosed when­ev­er its impair­ments man­i­fest dur­ing ​“the devel­op­men­tal peri­od,” which his­tor­i­cal­ly has been con­sid­ered age 22. 

In 2014, while Coonce’s penal­ty-phase tri­al was under­way, the Court decid­ed Hall v. Florida, strik­ing down Florida’s rigid IQ cut­off of 70 for deter­min­ing intel­lec­tu­al dis­abil­i­ty. Relying on Hall, Coonce argued that the rigid age cut­off of 18 should also be uncon­sti­tu­tion­al. The tri­al judge denied him a hearing. 

The U.S. Court of Appeals for the Eighth Circuit denied Coonce’s claim on appeal and affirmed his death sen­tence. He then filed a peti­tion for a writ of cer­tio­rari seek­ing review of his case by the U.S. Supreme Court. While that peti­tion was pend­ing, AAIDD revised its age-of-onset cri­te­ri­on for eval­u­at­ing intel­lec­tu­al dis­abil­i­ty to clas­si­fy it as ​“originat[ing] dur­ing the devel­op­men­tal peri­od, which is defined oper­a­tional­ly as before the indi­vid­ual attains age 22.” Coonce’s lawyers asked the Supreme Court to return his case to the Eighth Circuit for recon­sid­er­a­tion in light of the changed def­i­n­i­tion. The DOJ agreed with his request ​“because the AAIDD’s inter­ven­ing def­i­n­i­tion­al revi­sion affects a cen­tral fac­tu­al pred­i­cate for the court of appeals’ Eighth Amendment analysis.”

In her dis­sent, Justice Sotomayor called the majority’s deci­sion to deny Coonce’s peti­tion ​“deeply con­cern­ing, espe­cial­ly giv­en the strength of Coonce’s claim.” She cit­ed the three-prong def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty used in the Hall deci­sion: “[T]he med­ical com­mu­ni­ty defines intel­lec­tu­al dis­abil­i­ty accord­ing to three cri­te­ria: [1] sig­nif­i­cant­ly sub­av­er­age intel­lec­tu­al func­tion­ing, [2] deficits in adap­tive func­tion­ing (the inabil­i­ty to learn basic skills and adjust behav­ior to chang­ing cir­cum­stances), and [3] onset of these deficits dur­ing the developmental period.” 

“With respect to the third prong,” she wrote, ​“the courts below held that Coonce cat­e­gor­i­cal­ly could not prove intel­lec­tu­al dis­abil­i­ty because the Eighth Amendment required onset pri­or to age 18. Coonce, by con­trast, argued that his age-20 onset may accord with the def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty. Since the deci­sion below, the con­sen­sus in sup­port of Coonce’s posi­tion has only grown. The AAIDD’s change in def­i­n­i­tion offers pow­er­ful evi­dence of this shift.”