The Yale Law Journal

VOLUME
124
2014-2015
NUMBER
8
June 2015
2680-3203
Note

A Reassessment of Common Law Protections for "Idiots"

Michael Clemente

abstract. When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.” This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow. It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included people with a relatively wide range of intellectual disabilities. Based on this new historical account, this Note argues that there are people with intellectual disabilities on death row today who likely would have been protected from execution in 1791.

author. Yale Law School, J.D. expected 2016. This Note won the 2015 Burton Award for Distinguished Legal Writing. Throughout this project, I benefited from an abundance of intellectual generosity. I thank Judith Resnik for her supervision and incisive commentary. Additional thanks to Christine Jolls, Tom Green, John Stinneford, Stephen Greenspan, Nina Dayton, and the librarians at the Yale Law School. For thoughtful feedback and editorial support, I thank Rachel Bayefsky, Meng Jia Yang, Marguerite Colson, Chris Milione, Meg Braun, Eric Fish, and the editors of the Yale Law Journal. Most of all, I thank Lisa Erin Clemente.


Introduction

Today the United States is executing a group of people who were likely protected from such punishment in 1791. When the Eighth Amendment was ratified, categorical protections prohibited the execution of people described as “idiots” or “lunatics,” collectively referred to as persons non compos mentis. As an initial definitional matter, it may be helpful to analogize “idiots” to people with intellectual disabilities (formerly called mental retardation) and “lunatics” to people with mental illness—although these analogies are certainly oversimplifications. In fact, the accuracy and scope of these transhistorical analogies are at the heart of this Note.

The Eighth Amendment expressly proscribes “cruel and unusual punishments,”1 and this prohibition takes two forms. First, the Eighth Amendment prohibits those punishments that were considered “cruel and unusual” at the time of the Amendment’s adoption.2 Second, a punishment is “cruel and unusual” if it violates the “evolving standards of decency that mark the progress of a maturing society.”3

Death penalty jurisprudence and scholarship focus almost exclusively on the latter formulation.4 This is unsurprising—at least from an historical perspective. Eighteenth-century common law permitted the execution of felons,5 and the Framers contemplated capital punishment in the Constitution.6 The first Congress, for instance, adopted a statute authorizing the execution of seamen for theft of “any goods or merchandise to the value of fifty dollars.”7 In light of this well-known history, those who oppose the death penalty largely ignore the original public meaning of the Eighth Amendment and instead focus on “evolving standards of decency.” As John Stinneford notes, “[t]he Court’s nonoriginalists . . . have steadfastly refused even to consult the original intent of the Cruel and Unusual Punishments Clause.”8 As a result, Eighth Amendment jurisprudence has focused primarily on the “evolving standards of decency” and overlooked the common law’s strong prohibition against the execution of people called “idiots.”9

The Supreme Court has discussed common law insanity protections on three occasions: Ford v. Wainwright;10 Penry v. Lynaugh;11 and Justice Scalia’s dissent in Atkins v. Virginia.12 In Penry and Justice Scalia’s dissent in Atkins, the Justices argued that common law protections for “idiots” protected only those who were “profoundly or severely retarded” and not those who were moderately or mildly mentally retarded.13 This Note challenges that claim. It shows that both English and colonial common law rejected capital punishment for “idiots,” and that the legal and public understanding of “idiocy” in 1791 was broader than the understanding proposed by the Court.

This Note proceeds in four parts. Part I frames the discussion by outlining common law notions of “cruel and unusual,” the contours of the Eighth Amendment, and early insanity protections. Part II critiques the Supreme Court’s historical analyses in Penry and Atkins, and shows that the Court relied on post-ratification disability models (such as eugenic and phrenological models) to construct a narrow definition of “idiocy.” When the Court did use pre-ratification sources, it selectively quoted or relied on atypical cases. Part III reassesses common law insanity protections for “idiots,” finding that notions of “idiocy” were not limited to those who were “profoundly or severely” mentally retarded; instead, “idiocy” encompassed a relatively wide range of intellectual disabilities. Most notably, this Part demonstrates that colonial and early American legal scholars relied on Matthew Hale’s test to determine criminal liability for “idiots”: people whose mental abilities were below those of an ordinary child of fourteen were not liable for felony or treason.14 Part IV explores how this historical reassessment might affect contemporary death penalty litigation. Relying on the fourteen-year-old rule, it appears that a subset of the prisoners on death row with intellectual impairments would likely have qualified as “idiots” in 1791 and therefore should be exempted from execution today.

There are two important prefatory comments. First, the historical language in this Note—like the terms “idiot” and “lunatic”—likely sound jarring to the reader. And they should. The contemporary meanings of these words are heavily laden with a painful history of mistreatment and marginalization of people with intellectual disabilities and mental illness.15 Unfortunately, due to the historical nature of this inquiry, it is necessary to use the terms from the relevant eras to avoid anachronism. Replacing the word “idiot” with the phrase “intellectual disability” would obscure the historical question that this Note seeks to answer: namely, who was considered an “idiot” and thereby afforded special protections at the end of the eighteenth century?

Fidelity to the historical language is particularly necessary when studying idiocy because the subject contains an elusive and unstable vocabulary. As historian Patrick McDonagh notes, “[a]nyone wanting to understand the history of the idea of intellectual disability and its various genealogical precursors, such as idiocy, must contend with the slipperiness of the key terms . . . . With concepts as slippery as ‘idiocy’ and its kin, this task is imposing, but critical . . . .”16 This slipperiness is inevitable as the vocabulary of idiocy expands and contracts in response to scientific, religious, and sociocultural factors. Instead of attempting to establish an exhaustive taxonomy of mental disability, this Note explains key terms as needed.

The second prefatory comment regards originalism. This Note argues that the original meaning of the “cruel and unusual” clause incorporates the common law prohibition against executing idiots. Furthermore, it argues that the public meaning of the term “idiot” captures a broader group of people than acknowledged by the Supreme Court in Penry and Justice Scalia’s dissent in Atkins. To make this argument, this Note employs original meaning theories of constitutional interpretation, which ask what the constitutional text meant to a neutral reader at the time of adoption.17 As Justice Scalia notes, this approach relies on the writings of “intelligent and informed people of the time” to understand “how the text of the Constitution was originally understood.”18 This task “requires immersing oneself in the political and intellectual atmosphere of the time—somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day.”19 After determining how an “intelligent and informed” person understood the text in 1791, this Note proceeds to abstract “the constitutional principle away from the immediate expectations of the [F]ramers and [R]atifiers” in order to apply those principles today.20 While this Note employs an originalist methodology, it does not enter the larger debate regarding the merits of originalism.21

I. framing the conversation

This Part frames the discussion by outlining three underlying premises. First, there are two ways in which a punishment may violate the Eighth Amendment: 1) it was considered “cruel and unusual” when the Eighth Amendment was adopted in 1791 (the original meaning approach);22 or 2) it violates the “evolving standards of decency that mark the progress of a maturing society” (the evolving standards of decency approach). Second, because the Eighth Amendment incorporated the rights and protections afforded by English common law, the original meaning approach should investigate both English and colonial sources to determine the Amendment’s meaning in 1791. Third, English and colonial common law considered it “cruel” to execute an insane person—a category that included idiots and lunatics.

A. The Two Ways in Which a Punishment May Violate the Eighth Amendment

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”23 As discussed above, the Supreme Court has long held that there are two ways in which a punishment may violate the Cruel and Unusual Punishments Clause: first, if the punishment was considered “cruel and unusual” when the Amendment was adopted;24 or second, if the punishment violates the “evolving standards of decency.”25 Initially, the Court primarily relied on the original meaning approach: the Court’s earliest Eighth Amendment cases proceeded by “‘looking backwards for examples by which to fix the meaning of the clause,’ concluding simply that a punishment would be ‘cruel and unusual’ if it were similar to punishments considered ‘cruel and unusual’ at the time the Bill of Rights was adopted.”26 In 1878, the Court in Wilkerson v. Utah first indicated that the Amendment was not strictly tethered to eighteenth-century notions of cruelty.27 The second approach was later recognized in 1958 in Trop v. Dulles, in which the Court held that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”28

Since Trop, the Court has determined that either of these methods may show that a punishment violates the Eighth Amendment.29 While subsequent death penalty litigation has focused almost exclusively on the evolving standards of decency, the Court never abandoned the original meaning approach. Indeed, on several occasions the Court reiterated the unconstitutionality of punishments that were considered cruel and unusual in 1791.30 Moreover, the Court has consistently outlined a two-fold approach to its Eighth Amendment jurisprudence. Justice Scalia articulated this bifurcated approach as follows:

Under our Eighth Amendment jurisprudence, a punishment is “cruel and unusual” if it falls within one of two categories: “those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted,” and modes of punishment that are inconsistent with modern “standards of decency,” as evinced by objective indicia, the most important of which is “legislation enacted by the country’s legislatures.”31

As these modes developed, the original meaning approach became recognized as a “constitutional floor.” In Ford v. Wainwright, Justice Marshall stated that “[t]here is now little room for doubt that the Eighth Amendment’s ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.”32 While the evolving standards of decency are adaptable, the floor is not. The Eighth Amendment cannot provide less protection than it did in 1791.33 In contrast to the floor set by the original meaning approach, the evolving standards of decency set the outer boundaries of Eighth Amendment protection. While there has been considerable debate regarding these outer boundaries, there is little discussion of the floor.34 In Parts III and IV, this Note argues that the Court should restore the constitutional floor by enforcing the idiocy protections that existed when the Eighth Amendment was adopted. As discussed in more detail in Part IV, restoring the constitutional floor does not require abandoning the evolving standards of decency. The two methods can work in tandem.

B. The Common Law Roots of the Eighth Amendment

The Eighth Amendment’s drafting history shows that the Framers intended to include the protections and rights established in English common law. The English Bill of Rights was enacted on December 16, 1689, and it stated that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”35 The Virginia Declaration of Rights incorporated the exact wording of the English Bill of Rights, and the Eighth Amendment, in turn, was directly based on the Virginia Declaration of Rights.36

The author of the Virginia Declaration of Rights, George Mason, explained his draftsmanship: “[w]e claim Nothing but the Liberties & Privileges of Englishmen, in the same Degree, as if we had still continued among our Brethren in Great Britain . . . . We have received [these rights] from our Ancestors, and, with God’s Leave, we will transmit them, unimpaired to our Posterity.”37 Both the Supreme Court38 and legal scholars39 agree that by adopting this language, the Framers intended to guarantee at least those protections afforded under English law. In Solem v. Helm, the Court stated that “[a]lthough the Framers may have intended the Eighth Amendment to go beyond the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection . . . .”40

The colonists were particularly faithful to English criminal law. While scholars note that colonists deviated from English law in some respects (forming “indigenous law”), this was generally not the case with criminal law.41 When the colonists did deviate from English criminal law, they tended to move in the “direction of leniency” by “giving judges alternatives to the death penalty.”42 Because the Eighth Amendment incorporated the same protections as the English Bill of Rights, the following historical inquiry investigates the protections afforded to idiots in both English and colonial common law.43

C. It Was “Cruel” To Execute an Idiot

English common law considered it “cruel” to execute idiots, lunatics, and the insane. The term most commonly used to describe these protected groups was “non compos mentis” or simply “the insane.”44 In Ford v. Wainwright, Justice Marshall outlined the “impressive historical credentials” in English common law that prohibited the execution of the insane.45 He surveyed the works of Edward Coke (1552-1634), Matthew Hale (1609-1676), John Hawles (1645-1716), William Hawkins (1673-1746), and William Blackstone (1723-1780) who described the execution of the insane as “savage and inhuman,”46 a “miserable spectacle,”47 and “of extreme inhumanity and cruelty.”48 This prohibition was effectively unwavering. As Justice Marshall noted: “We know of virtually no authority condoning the execution of the insane at English common law.”49

The common law offered varying rationales for the prohibition on executing the insane: the practice “simply offends humanity”; it provides no general deterrence; it denies the condemned an opportunity to find peace with God; and “madness is its own punishment” (“furiosus solo furore punitur”).50 Although Justice Marshall did not find a consistent justification, he nonetheless acknowledged the force of the prohibition because “whatever the reason of the law is, it is plain the law is so.”51 Since Ford, the Supreme Court has reaffirmed these protections. At the beginning of her historical analysis in Penry, Justice O’Connor confirmed that the common law protections for idiots and lunatics are “well settled.”52

The protection for idiots in English common law carried over to the colonies. Scholars note that “[m]ost of the colonial law as well as the colonists’ ways of thinking about idiocy originated in English common law and custom.”53 Moreover, as discussed in Part III, the prohibition on executing idiots was present in the primary legal resources upon which the Framers relied. Part III argues that it was “cruel” to execute an idiot; however, as an alternative originalist argument, one might also argue that it was “unusual” to do so.54 Although the latter argument appears to hold promise, this Note does not pursue it.

II. a critique of the historical analyses in penry and atkins

This Part critiques the Supreme Court’s historical analyses in Penry and Atkins, which concluded that insanity protections for idiots protected only those who were “profoundly or severely mentally retarded.” First, this Part shows that these opinions relied heavily on sources that postdate the adoption of the Eighth Amendment. Specifically, the Justices’ definition of idiocy relied on sources influenced by eugenic and phrenological models of intellectual disability, both of which originated well after 1791. Second, when the Court did use sources from the relevant period, those sources were not representative of the treatment of idiocy at the time. The following critique aims to render explicit the post-ratification assumptions about disability that were projected onto the Eighth Amendment and to clear space for a new historical evaluation of idiocy protections.

A. The Historical Findings of Ford, Penry, and Atkins

The Supreme Court has discussed common law insanity protections three times: Ford v. Wainwright;55 Penry v. Lynaugh;56 and Justice Scalia’s dissent in Atkins v. Virginia.57 As discussed below, Ford addressed common law insanity protections generally and held that the Eighth Amendment prohibits the execution of the insane. Penry and Justice Scalia’s dissent in Atkins addressed common law insanity protections for idiots in particular, and both opinions claimed that idiocy protections extended only to those who were profoundly or severely mentally retarded.

In Ford v. Wainwright a divided Supreme Court held that the Eighth Amendment prohibits the execution of people who are insane.58 The defendant, Alvin Bernard Ford, was convicted of the 1974 murder of a police officer and was sentenced to death.59 There was no indication that Ford was incompetent at the time of the offense, the trial, or the sentencing; however, he subsequently began to display signs of mental illness, such as delusions and paranoia.60 In 1984, the Governor of Florida decided to proceed with Ford’s execution after receiving conflicting reports on Ford’s mental state.61 Ford’s counsel then unsuccessfully petitioned for habeas relief, seeking an evidentiary hearing to determine Ford’s sanity.62 After the Eleventh Circuit affirmed, the Supreme Court granted certiorari to “determine whether the Eighth Amendment prohibits the execution of the insane and, if so, whether the District Court should have held a hearing on petitioner’s claim.”63

As discussed in Part I.C, Justice Marshall surveyed the “impressive historical credentials” in the common law that prohibited the execution of the insane and found that these protections were unwavering. Notably, Justice Marshall did not attempt to discern who was included within the insanity protection: he made no effort to delineate and distinguish the type or degree of mental incompetence that would trigger the safeguards. Furthermore, Justice Marshall did not distinguish between the common law’s different classifications for mental incompetence. Throughout his opinion, he interchangeably cites common law references to the insane, idiots, lunatics, the mad, and those of “nonsane memory.”64 In his concurrence, Justice Powell narrowed the holding by defining the “insane” as only those who are so disabled that they cannot perceive the connection between their crime and their punishment.65 This narrow approach to insanity was subsequently adopted by most lower courts.66

Three years later the Court addressed common law insanity protections again in Penry v. Lynaugh.67 In Penry, the Court addressed a specific subset of defendants who invoke the insanity defense: people with mental retardation. In another divided decision, the Court held that the Eighth Amendment does not proscribe the execution of mentally retarded offenders but does require that juries be permitted to consider mental retardation as a mitigating factor.68

Johnny Paul Penry, was convicted of, and sentenced to death for, the rape and murder of Pamela Carpenter in 1979.69 At a competency hearing, a clinical psychologist testified that Penry had organic brain damage and “had the mental age of a 6½ year-old, which means that ‘he has the ability to learn and the learning or the knowledge of the average 6½ year old kid.’”70 Penry’s “social maturity” was reported as that of a nine- or ten-year-old.71 Witnesses testified that Penry was incapable of learning in school (he never completed the first grade); he struggled for over a year to learn how to write his name; and he was often beaten over the head as a child.72

Writing for the Court, Justice O’Connor acknowledged that historical protections exempted idiots from execution; however, she claimed that these protections extended only to people who were “profoundly or severely retarded” and not to those who were moderately or mildly mentally retarded.73 The historical evidence for this claim is closely examined and contested in Part II.B. While the central holding of Penry has since been overturned, this case remains the Court’s most definitive analysis of common law insanity protections for idiots. Notably, for purposes of this discussion, none of the dissenting Justices provided a competing historical analysis.74

In 2002, the Supreme Court overruled Penry in Atkins v. Virginia and held that the Eighth Amendment categorically prohibits the execution of mentally retarded offenders.75 Daryl Atkins was convicted and sentenced to death for the abduction, robbery, and murder of Eric Nesbitt in 1996.76 During the penalty phase, a forensic psychologist testified that Atkins had an IQ of fifty-nine and was “mildly mentally retarded,” although the state’s expert disputed this diagnosis.77 In his majority opinion, Justice Stevens invoked the dissenting Justices of the Virginia Supreme Court, who concluded that it was impermissible to execute Atkins because he had a mental age between nine and twelve years.78

The Court’s reasoning relied entirely on the “evolving standards of decency” and did not mention historical idiocy protections. Writing for the majority, Justice Stevens argued that the recent trend among state legislatures to ban the execution of mentally retarded offenders showed that the standards of decency were evolving.79 Like Justice Marshall in Ford, Justice Stevens did not establish who was considered mentally retarded for the purposes of capital punishment. Instead, the Court left to the states “the task of developing appropriate ways to enforce the constitutional restriction.”80

Justice Scalia’s dissent in Atkins marks the last time the Supreme Court addressed common law insanity protections for idiots. Justice Scalia relied heavily on the historical analysis in Penry, adding only three new sources.81 In step with Penry, he concluded that idiocy protections shielded only the “severely or profoundly mentally retarded.”82 Justice Scalia chided the majority for bypassing the original meaning approach and “making no pretense” that the execution of Atkins “would have been considered ‘cruel and unusual’ in 1791.”83

These three cases comprise the entirety of the Court’s analysis of common law insanity protections for idiots and lunatics. As discussed in the next section, these analyses—particularly from Penry and Atkins—are marked by serious historical flaws that render their findings unpersuasive.

B. Reliance on Disability Models That Postdate the Eighth Amendment

The primary problem with Penry’s historical analysis is that it never directly substantiates its central claim that idiocy protections were reserved for those who were “severely or profoundly retarded.”84 This omission is somewhat obscured by the semantics of idiocy. Penry’s claim is supported by sources that invoke the term “idiot”; however, these sources contain narrower definitions of idiocy that developed long after the adoption of the Eighth Amendment. Moreover, the sources on which the Court relies most heavily actually militate against the “profound and severe” theory.

Penry makes the “profound and severe” claim three times. The first two times have no citation to support the claim.85 Only in the third instance does the Court provide a citation to support the “profound and severe” claim:

In its emphasis on a permanent, congenital mental deficiency, the old common law notion of “idiocy” bears some similarity to the modern definition of mental retardation. Ellis & Luckasson, supra, at 417. The common law prohibition against punishing “idiots” generally applied, however, to persons of such severe disability that they lacked the reasoning capacity to form criminal intent or to understand the difference between good and evil. In the 19th and early 20th centuries, the term “idiot” was used to describe the most retarded of persons, corresponding to what is called “profound” and “severe” retardation today. See AAMR, Classification in Mental Retardation 179 (H. Grossman ed. 1983); id., at 9 (“idiots” generally had IQ of 25 or below).86

This citation fails to support the Court’s “profound and severe” claim for at least three reasons. First, the central claim that idiocy applied only to the most severely disabled is not supported by any pre-ratification source. Instead, the Court cites the Classification in Mental Retardation by the American Association on Mental Deficiency (AAMD) for the proposition that idiots correspond to “profound and severe” retardation and that they “generally had an IQ of 25 or below.”87 To provide some context: this characterization of idiocy protections, if true, suggests that most people with Down syndrome were likely not protected from execution.88 While the Court stops just short of saying that idiots in 1791 had an IQ of 25, this seems to be the implication. The problem with this suggestion is that IQ tests were not developed until the beginning of the twentieth century.89 The Court’s careful wording (“In the 19th and early 20th centuries . . .”) obscures the fact that the IQ classification system did not exist until over a hundred years after the adoption of the Eighth Amendment.90 This twentieth-century classification does not accurately characterize idiocy protections in 1791.

Second, the AAMD manual actually militates against the “profound and severe” theory. In fact, the AAMD states that the definition of idiocy did not mean “profound and severe” until the nineteenth and twentieth centuries.91 Prior to the nineteenth century—in the time period when the Eighth Amendment was adopted—idiocy referred to “all retarded people.”92 The AAMD manual is not an historical treatise, but to the extent it discusses the history of idiocy, it does not support the “profound and severe” theory.

Third, the cited IQ classification (“25 or below”) actually pertains to the AAMD’s description of the eugenics movement in the twentieth century, not the public understanding of idiocy in the eighteenth century. The AAMD section that contains the “IQ of 25 or below” proposition describes a eugenic classification that consisted of “idiots,” “imbeciles,” and “morons.” The section says:

The end of the 19th century and beginning of the 20th century brought two related movements, the development of intelligence tests and concern for genetics as a factor in mental retardation . . . . The terms idiot, imbecile, and moron were used to identify three levels of retarded behavior, and approximate cut-off scores on intelligence tests were devised: 25, 50, and 75.93

This IQ classification of mental impairment (25, 50, and 75) was developed by Henry Herbert Goddard, one of America’s most prominent eugenicists. He introduced the IQ classification—along with his neologism, “moron”94—in 1910 at an annual meeting of the American Association for the Study of the Feeble-Minded.95 The IQ scale was calibrated to a mental age range. “Idiots” referred to those with a mental age up to two years; “imbeciles” had a mental age of three to seven years; and “morons” had a mental age of eight to twelve years.96 Goddard’s classification system was part of a larger movement holding that people with inferior genes needed to be found and controlled for society to progress.97 Eugenic measures of control included the forced sterilization of people with intellectual disabilities, marriage restrictions, and confinement.98

It is curious that the Court chose to cite Goddard’s mental disability classification, particularly because numerous other classifications of idiocy existed that were developed closer in time to the adoption of the Bill of Rights.99 While the horrors of the eugenics movement hardly need recitation here,100 it is worth noting that Goddard’s views fell out of favor not only for normative reasons; scholarly review of his work shows serious inadequacies in his scientific method and professional ethics.101

The eugenics movement is not as much a creature of the distant past as one might imagine. When Penry was authored in 1989, the last explicit remnants of the eugenic impulse were just subsiding. While most eugenic sterilization programs ended in the 1960s, several states actively continued these programs into the next decade.102 The Iowa Board of Eugenics approved involuntary sterilizations of people with intellectual disabilities well into the 1970s.103 In 1976, the North Carolina Supreme Court upheld the state’s “compelling interest” to forcibly sterilize on the basis of “feeblemindedness, idiocy, or imbecility . . . to protect the public and preserve the race from the known effects of the procreation of the mentally deficient children by the mentally deficient.”104 Even after sterilization programs shed their explicitly eugenic skin, many of them continued into the 1980s recast as efforts to protect incompetent persons.105

In his dissent in Atkins, Justice Scalia incorporates Penry’s “IQ of 25 or below” standard to reaffirm a narrow definition of idiocy.106 However, his dissent cites this IQ cutoff without any reference to the time period: “citing sources indicating that idiots generally had an IQ of 25 or below, which would place them within the ‘profound’ or ‘severe’ range of mental retardation under modern standards.”107 This explanation makes it difficult for the reader to recognize that the IQ justification for the “profound and severe” theory did not emerge until well after the adoption of the Eighth Amendment.

In addition to the eugenic influence, the Court’s understanding of idiocy relied on a phrenological model of disability—a model that also postdates the adoption of the Eighth Amendment. In his dissent in Atkins, Justice Scalia adds a citation to Isaac Ray’s work, Medical Jurisprudence of Insanity, which provides Ray’s account of the 1834 trial of an “imbecile.”108 Justice Scalia relies on this source, among others, to maintain that the common law has always distinguished between different grades of mental retardation. He says:

Mentally retarded offenders with less severe impairments—those who were not “idiots”—suffered criminal prosecution and punishment, including capital punishment. See, e.g., I. Ray, Medical Jurisprudence of Insanity 65, 87–92 (W. Overholser ed. 1962) (recounting the 1834 trial and execution in Concord, New Hampshire, of an apparent “imbecile”—imbecility being a less severe form of retardation which “differs from idiocy in the circumstance that while in [the idiot] there is an utter destitution of every thing like reason, [imbeciles] possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind.”).109

This historical argument is unconvincing for several reasons. As a preliminary matter, the practice of grading idiocy was largely unknown in 1791. This fact was stated in the AAMD Classification Manual cited in Penry110 (discussed above) and is further corroborated by other scholarly sources.111 To the extent that some legal commentators, such as Edward Coke, differentiated between grades of idiocy, this differentiation generally did not impact criminal liability.112 While the law did distinguish between “weakness of understanding” (that is, people who were simply unintelligent) and idiots, it generally did not differentiate among different levels of idiocy.113

Second, Ray was an ardent phrenologist, and he viewed mental competence through this idiosyncratic theoretical lens.114 The phrenological perspective of disability, however, was unknown to the Framers in 1791 because it had not yet been invented.115 Phrenology, the creation of German physicist Franz Joseph Gall, was not well known in the United States until the 1820s.116 As evidenced by law dictionaries from the 1850s, the phrenological perspective of disability significantly altered the legal understanding of idiocy.117 The definitions that emerged during this time included measurements of idiots’ heads and provided a peculiar list of character traits.118

Third, if Ray’s views were actually representative of the public meaning of idiocy in 1791, then many imbeciles would likely be protected by insanity protections. Ray classified “imbeciles” and “idiots” as subtypes of the category of “insanity.”119 Because insanity was covered by common law protections, his taxonomy did not categorically exclude imbeciles from protection. Furthermore, Ray himself explicitly argued for the mitigation of criminal liability based on imbecility: “To make such a person [an imbecile] responsible for his actions to the same degree as one enjoying the full vigor and soundness of the higher faculties is therefore manifestly unjust . . . .”120 Other scholars, such as Norman Finkel, note that Ray “gave wide exemption for insane offenders” and viewed many criminal tests of sanity as “too narrow.”121 Therefore, the fact that an individual classified by Ray as an imbecile was tried and executed in 1834 does not clearly support a narrow interpretation of idiocy protections in 1791.

C. Sources That Predate the Eighth Amendment

When Penry and Atkins cite sources that predate the Eighth Amendment, those sources are either inadequately quoted or from unrepresentative cases. In supporting the “profound or severe” theory, Justice Scalia’s dissent cites the description of idiots from Anthony Fitzherbert’s sixteenth-century work, Natura Brevium. Justice Scalia has good reason to cite Fitzherbert, whose description of idiocy is one of the earliest and most frequently cited in the common law.122 However, the dissent cites only the first sentence of Fitzherbert’s two-sentence description: “An idiot is ‘such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is, etc., so as it may appear that he hath no understanding of reason what shall be for his profit, or what for his loss.’”123 According to this narrow definition, Justice Scalia argues, an idiot must be so profoundly or severely disabled that he cannot count to twenty or recognize his own parents. Consequently, only the most severe cases of mental retardation would qualify a defendant for idiocy protections. As Justice O’Connor noted in Penry, this person would likely be covered already by the insanity protections from Ford.124

While Fitzherbert’s first sentence presents a narrow description of idiocy, the second sentence provides more perspective: “But if he [the idiot] hath [s]uch understanding, that he know and understand his letters, and do read by teaching or information of another man, then it [s]eemeth he is not a [s]ot nor a natural idiot.”125 While the first sentence lays out one extreme boundary line (those who cannot count to twenty or recognize their parents), the second sentence points to the opposite boundary: those who learn to read and write seem not to be idiots. Fitzherbert even softened the educability boundary with the word “seemeth.”126

Legal scholars confirm the importance of Fitzherbert’s second sentence. Sheldon Glueck—whom Justice O’Connor cites in Penry—notes that the first sentence of Fitzherbert’s definition cannot be read in isolation because

in the second portion of his definition, [Fitzherbert] modified the extreme example put by him in the first part. There is certainly a wide gap between the mental condition of the idiot who can not “number twenty pence,” or “tell who was his father or mother”; and of one who cannot acquire the much more intricate accomplishment of understanding “his letters,” and reading.127

Glueck further argues that Fitzherbert’s definition was not meant to be a bright-line idiocy test, nor was it understood that way. “From the second portion of his definition, however, it seems clear that Fitzherbert, like his predecessors and successors, did not intend his definition to be categorically exclusive of any other means of determining a defendant’s idiocy.”128

Early legal commentators, such as Matthew Hale, did not abide by Justice Scalia’s narrow interpretation of Fitzherbert. Hale was one of the most influential jurists in English legal history.129 Nigel Walker, in his landmark study Crime and Insanity in England, appraises Hale’s work as “[t]he clearest statement of the law and its procedures at any single time in this period.”130 His writings are particularly relevant for understanding the legal contours of idiocy in the late eighteenth century. As Walker notes:

Unlike earlier writers, such as Coke . . . Hale devoted an entire chapter, the fourth, to “the defects of ideocy, madness and lunacy in reference to criminal offences and punishments.” This chapter is not merely the most detailed description of seventeenth-century practice: after its belated publication in 1736 it had more influence on lawyers of the eighteenth and nineteenth century than any other single work on the subject.131

Despite Hale’s significant influence on legal conceptions of idiocy, the Court in Penry and the dissent in Atkins give him only passing notice.132

Hale’s commentary on Fitzherbert further discredits Justice Scalia’s interpretation. After reciting Fitzherbert’s test, Hale reflects on Fitzherbert’s criteria, noting that “[t]hese, tho they may be evidences, yet they are too narrow and conclude not always; for ideocy or not is a question of fact triable by jury, and sometimes by inspection.”133 This quotation is significant for two reasons. First, Hale rejects the literal interpretation of Fitzherbert’s description as too narrow, thereby opening up space for a more flexible understanding of mental incompetence. Second, Hale emphasizes that the determination of idiocy is a fact-intensive procedure that must be individualized to the defendant. Subsequent legal scholars also endorsed Hale’s interpretation of Fitzherbert’s definition.134

In Penry, the Court also relied on the 1724 Trial of Edward Arnold to support the “profound and severe” theory.135 Edward Arnold pled insanity after he was charged with attempting to murder Lord Onslow in the 1720s.136 At the end of the trial, Justice Tracy delivered jury instructions regarding the determination of sanity, and these instructions have since come to be known as the “wild beast test.”137 The wild beast test states that “a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment.”138

However, scholars maintain that the wild beast test was not representative of insanity protections in the eighteenth century.139 As Nigel Walker noted, “The trials of Arnold and Ferrers have often been cited to demonstrate how strictly the criteria of insanity were applied by criminal courts; but it is a demonstration which assumes that these were typical cases. In fact they could hardly have been less typical.”140 The trial was atypical primarily because Lord Onslow portrayed Arnold’s attack as an indirect attempt on the life of the king—in other words, as attempted regicide.141 Walker argues that Justice Tracy “might well have been less hostile to Arnold if it had not been for the political suspicions which Onslow had aroused.”142 This case’s idiosyncrasy is further corroborated by an acquittal that occurred a few years later with similar facts but without the heightened political pressures.143 Moreover, even though Arnold was convicted and sentenced to death, his sentence was commuted to imprisonment for life.144

It is also worth noting that Edward Arnold’s defense was lunacy, not idiocy. In general, the insanity defense included both lunatics and idiots at the time of Arnold’s trial.145 However, Justice Tracy’s jury instructions emphasized that Arnold did not plead idiocy:

[A]nd it is observed they admit he was a lunatic and not an idiot. A man that is an idiot, that is born so, never recovers, but a lunatic may, and hath his intervals; and they admit he was a lunatic. You are to consider what he was at this day, when he committed this fact.146

By going out of his way to make this additional distinction, Justice Tracy’s instructions were tailored to the intermittency and frenzied characteristics that distinguished lunacy from idiocy at the time.147

To recap, this Part challenged the Supreme Court’s historical analysis of insanity protections for idiots. It showed that the Court’s primary evidence for the “profound and severe” theory relied on post-ratification sources. Those sources are problematic because they employed theories of disability that did not exist in 1791. When the Court did use sources from the relevant time period, they were not representative of the normal treatment of idiocy. The following Part seeks to provide an alternative historical analysis of idiocy in English and colonial common law.

III. reassessing insanity protections for idiots

Part III reassesses the protections afforded to idiots at the end of the eighteenth century. It finds that notions of idiocy included a relatively wide range of intellectual disabilities and were not limited to the “profoundly or severely retarded.” This Part first discusses the common law’s general understanding of idiocy. Throughout the common law, idiocy was usually defined by juxtaposition with lunacy; this Note follows that approach. The next two sections, Parts III.B and C, discuss two different methods of identifying who was an idiot for purposes of criminal liability: community reputation and the fourteen-year-old rule. The community reputation approach stemmed from families and community members serving as the locus of care for idiots.148 Because community members provided support for idiots, they were thought best suited to identify who was an idiot. The fourteen-year-old rule—which prohibited the execution of a person whose mental abilities were below those of an ordinary child of fourteen years—was inherited from English common law.149

This Part investigates both methods of identifying idiots. Both methods are relevant, in part, because they may have been in tension at the time of the adoption of the Eighth Amendment. As Langbein, Lerner, and Smith note, American law underwent a “titanic struggle” at the end of the eighteenth century between “folk law” and “learned law.”150 Proponents of the folk law side were “hostile to lawyers and legal doctrine” and believed that “[o]rdinary people, applying common sense notions of right and wrong, could resolve the disputes of life in localized and informal ways.”151 Those endorsing “learned law” believed that “the intrinsic complexity of human affairs begets unavoidable complexity in legal rules and procedures . . . . [and] insisted that law had to be, in this special sense, learned.”152 The folk law sentiment aligns naturally with the community reputation approach of determining idiocy; learned law aligns with the doctrinal approach, the fourteen-year-old rule. Of these two impulses—folk law and learned law—the latter ultimately prevailed. “In the end . . . American law came to be learned law, a body of law so strongly patterned on the learned English law that we still for many purposes think of the English and American legal systems as comprising an inseparable entity called Anglo-American law.”153 While this Part explores both ways of determining idiocy in the eighteenth century, Part IV narrows its focus to the fourteen-year-old rule for modern application.

A few qualifying comments are necessary at the outset. First, as a baseline matter, we know relatively little about criminal justice in the colonies. As Lawrence Friedman said, “The colonial world is not easy to capture in a few short pages, and its criminal justice system is no less elusive. The further we go back in time, the dimmer the world gets, and the stranger.”154 In their casebook, Langbein, Lerner, and Smith likewise acknowledge that “little is known about the conduct of criminal prosecutions in colonial America . . . .”155 Second, the colonies were not homogenous; they varied across geographical regions. For instance, the northern Puritan colonies sanctioned morality offenses quite severely, but handled property offenses more leniently; the southern colonies operated inversely.156 And of course, the colonies also varied over time. Friedman comments that “[i]t is convenient to talk about the colonial years as a single ‘period.’ Yet this period lasted about 150 years, a span of many generations; people were born, grew old, died, were forgotten, all within this single ‘period.’”157 This variation complicates any sweeping generalizations regarding idiocy in the colonies.

Third, few historians focus on mental impairments in colonial America, and even fewer focus specifically on idiocy.158 Parnel Wickham suggests two reasons for this disregard: “[I]diocy has been neglected in studies of the American colonies partly because of the paucity of documentation and partly because of the disinterest of scholars.”159 Regarding the first reason, primary sources relating to idiocy are particularly scarce before the institutionalization movement in the nineteenth century.160 In eighteenth-century England, and to an even greater extent in the colonies, there are few records of how idiots were treated in criminal matters. In the colonies, records are scarce partly because idiots were often dealt with outside of formal legal proceedings.161 This extrajudicial treatment—combined with the general lack of case reporting in the eighteenth century162—resulted in few surviving records of idiots at trial.163 Wickham’s second reason—a lack of interest on the part of scholars—also rings true. Patrick McDonagh characterizes academia’s approach toward idiocy as one of “strenuous neglect.”164 C.F. Goodey observes that “[n]o honour accrues to the academy from natural and incurable idiocy.”165 Whatever the cause, the story of idiocy in colonial times is largely untold.

These prefatory points are meant to acknowledge this Note’s limits. The evidentiary record is sparse; moreover, all historical generalizations, to some extent, sacrifice degrees of accuracy for increased intelligibility. As Friedman states with a mix of hope and frustration, “There was an overall pattern [in the colonies], which we can clearly see today; but the patterns dissolve the closer one gets—or the more carefully one looks at details.”166 Despite these limitations, the available resources—such as colonial statutes, legal treaties, legal dictionaries, newspapers, and trials in England—point to certain trends and generalizations that this Part seeks to synthesize.

A. Idiocy, Lunacy, and the Range of Intellectual Disabilities

The history of idiocy is inseparably paired with the history of lunacy. In fact, when idiocy is discussed at all, it is generally mentioned as a corollary to the primary subject of lunacy. The coupling of idiocy and lunacy is not a new phenomenon; its roots reach deep into the development of the two concepts.167 Since the thirteenth century, idiocy and lunacy were consistently coupled and juxtaposed.168 This interplay continued throughout the English common law and carried over to the North American colonies.169 While theoretical expositions consistently distinguish between idiocy and lunacy,170 the distinction often did not hold in practice. Because idiots and lunatics were often subsumed into the large category of “paupers,” there are numerous instances of their conflation.171 When this distinction was made in practice, there is little evidence regarding how it was made.172

The primarily theoretical difference between idiocy and lunacy was the permanence of idiocy as contrasted with the intermittency of lunacy.173 Other important characteristics of idiocy included: heightened dependence on others,174 ineducability,175 a lack of normalcy176 or maturity,177 and sometimes idiocy’s congenital origins178 and accompanying physical abnormalities.179 Lunacy, however, was marked by its intermittent periods of “madness.” These periods were compared to the permanent mental state of an idiot; however, there was often a heightened emphasis on the lunatic’s “phrenzy.”180 If lunacy became permanent—as in cases of “chronic lunacy”—hardly any distinction remained between lunacy and idiocy.181

Many of the earliest examples of the idiocy/lunacy distinction originate in property law. In the thirteenth century, pursuant to the Prerogativa Regis, the King had the right and duty to take the land of subjects who could not manage their property.182 The Crown exercised this right by seizing an idiot’s inherited land, providing him with his “necessaries,” and then transferring the land to his heirs upon his death.183 The practice was largely similar for lunatics; however, since their insanity was intermittent, the King only assumed custody of their land and diverted the profits to the lunatic.184 Because the financial ramifications for a finding of idiocy were so much harsher than for a finding of lunacy, Blackstone notes that jurors sometimes found a landowning idiot to be a lunatic just to ensure that he received the profits of his land.185 This general structure carried over to the North American colonies, and most surviving idiocy cases from the colonies revolved around property disputes.186

Eighteenth-century colonial newspapers show that the general public was familiar with the property laws for idiots and lunatics. For instance, the Pennsylvania Gazette in 1773 reported a case where a fraudster married a wealthy “idiot” woman, apparently as part of a scheme to acquire her property.187 In the article, the authors petitioned the colonial assembly to grant relief “in the same manner as a Committee of Lunaticks might or could do in England.”188 Other late-eighteenth-century newspaper accounts included jokes about idiots,189 speculation about their chances in the afterlife,190 and scandalous or lurid stories.191

The distinction between idiocy and lunacy also existed in criminal law. Since idiocy was generally considered congenital and permanent, an idiot was protected from punishment throughout life. However, since lunacy was intermittent, these cases required additional investigation to determine whether the defendant acted under such a disability.192 The idiocy/lunacy distinction may have been relevant because of heightened concern that defendants would feign lunacy. Because idiocy was congenital, and community members could testify to this fact, it was much more difficult to fake.193

The general public was also aware of the criminal protections afforded idiots and lunatics. In 1788, Philadelphia’s Independent Gazetteer reported a case of a man with “deranged understanding” who attacked people on several different occasions, broke windows, and spit in the face of a judge; however, he was consistently remanded to hospitals instead of criminally prosecuted.194 Many colonial newspapers closely covered the 1786 acquittal of Margaret Nicholson, a non compos mentis woman who made an attempt on the life of King George III.195 In 1789, Boston’s Herald of Freedom relayed an account from London in which seventeen-year-old Eleanor Johnson committed suicide.196 The paper reported that “an intimacy had fulfilled between the deceased and a black man, named Thomas Cato, a native of the East Indies, on whom she had fixed her affection . . . .”197 After Cato “accused her of deceit,” Johnson poisoned herself.198 The report goes on: “When examined before the Jury, the Black appeared so ignorant and illiterate, that nothing could be collected from his evidence . . . . The Jury, after a very humane and attentive consideration, brought in their verdict, LUNACY.”199 These accounts show that the general colonial population was aware of idiocy protections and their English origins.

There appear to be fewer idiocy criminal cases than lunacy criminal cases. Some speculate that this difference is due to a lower incidence of crime in the demographic of idiots.200 Others note that idiots were more likely to be acquitted extrajudicially.201 Because idiots were known by their communities as such, when they committed crimes, they were often remanded to an almshouse, hospital, jail, or the custody of their families.202 As a general matter, it seems there was less penological interest in idiots than in lunatics. Idiots were largely viewed as followers who were easily persuaded by others into criminality; however, they were also easily apprehended.203

In the colonies, idiots “blended into the general population unless they were apprehended for criminal behavior, and if the surviving records are any indication, few were brought before the courts.”204 Nonetheless, many colonies, similar to England, enacted statutes that explicitly exempted idiots from criminal punishment. For instance, the Colony of Rhode Island adopted a burglary provision holding that one who “in the night time do breake and enter into a Dwelling house with an intent to robb” is punished under a “Felonie of Death.”205 However, the provision “extends not to . . . fooles, nor to madd men.”206 The terms “fool” and “natural fool” were common synonyms of the word “idiot” in the eighteenth century.207 Other colonies enacted similar statutes protecting idiots from criminal punishment.208 In addition, idiots and lunatics who committed suicide were not counted as felo de se (which was a property sanction levied against the estates of those who committed suicide).209

B. Identifying Idiots: Community Reputation

There are several hurdles in identifying the characteristics of eighteenth-century idiots. The colonial criminal statutes make no effort to explain who qualified for these protections.210 Other legal sources offer similarly scant description. For instance, a review of law student notebooks from the colonies show that these criminal protections existed, but it does not explain the legal standard by which idiocy was determined.211 However, the historical record is clear about one identifying factor: the probative role of an idiot’s reputation in her community.

Before the wave of institutionalization that swept England and the United States in the nineteenth century, idiocy was addressed on a local level by the idiot’s family and community.212 Since the community—not medical experts—was the locus of care for idiots, community members were the ones called on to testify at trials. Nigel Walker explains that the earliest insanity cases relied entirely on local knowledge: “Being local men, they knew—or thought they knew—who was born when and who was a lunatic or an idiot.”213 The “popular reputation” approach carried on throughout the eighteenth century and, to a lesser extent, into the nineteenth.214 While many legal tests—such as Fitzherbert’s—contained seemingly rigid language, there is little evidence that they were implemented in such an unforgiving manner.215 When they were, it was either because the crime created a fierce political response,216 or, in civil cases, when a powerful person wanted to dispossess another of his property.217

Reports from the Old Bailey Courthouse in London provide illustrative examples of the community’s probative role in eighteenth-century idiocy trials in England.218 In 1767, Samuel Straham was indicted for bigamy because he married a second wife.219 After Straham plead idiocy, the court heard testimony of witnesses who knew Straham. One said, “I have known [Straham] for sixteen years . . . [and] count him no better than an ideot.”220 Another said that he “always took [Straham] to be a fool” and that he “does not know right from wrong.” Following this testimony, he was acquitted.221 In 1762, Ann Wildman was indicted for stealing.222 Several witnesses “who had known [Wildman] some years” testified to her idiocy.223 They said “she was a very weak, easy, foolish girl, next a kin to an idiot.”224 Without mention of any formal tests, this evidence was sufficient to acquit Wildman as an idiot.225 Many other acquittal cases exist; likewise, they often make little effort to explain why the defendant was considered an idiot.226

The Old Bailey accounts also contain instances where community witnesses were insufficient to secure an idiocy acquittal. For example, in 1748, Robert Miller was found guilty of stealing a linen handkerchief.227 Community witnesses came forward to testify on Robert’s behalf, including his employer and his brother Richard.228 Robert’s employer described him as one “troubled with fits” and “half an ideot.”229 Richard reported that he “maintained [Robert for] six or seven years” and that “[h]e has been under most of the doctors [sic] hands in London.”230 There is no explanation of the court’s reasoning, but Robert Miller was found guilty and sentenced to transportation for seven years.231

Although idiocy defenses sometimes failed, Nigel Walker’s broader analysis of the Old Bailey Sessions Papers confirms a significant statistical increase in insanity acquittals in the second half of the eighteenth century.232 He says that the insanity defense “often succeeded in the eighteenth century . . . [and] [l]aymen’s evidence was often accepted without any testimony by mad-doctors.”233 After ruling out alternative explanations, Walker says that “[s]ince we cannot dismiss the [statistical increase] as a result of chance or improvements in procedure, we must look for signs of genuine changes either in the pattern of crime or in attitudes to mental disorder.”234 And while he acknowledges the possibility of “an increase in the relative frequency with which lunatics and idiots appeared in the docket at the Old Bailey” he insists that “an unmistakable phenomenon of this period was a growing public awareness of the special nature of the social problem posed by the mentally disordered.”235

Insanity acquittals for idiots and lunatics also occurred in the colonies; however, as noted above, idiots and lunatics were particularly unlikely to receive formal trials.236 Furthermore, the available trial records are often quite terse. Like the colonial statutes, colonial courts seem to rely on the assumption that idiots and lunatics would simply be known as such. This is consonant with general historical assessments of colonial trials, specifically, that colonial juries often decided both questions of law and fact.237 For instance, a judge charging a grand jury in Massachusetts in 1759 stated that in most matters the jurors “need no explanation [because] your good sense and understanding will direct ye . . . .”238

The surviving colonial insanity acquittals offer little evidence of the legal standard that was used. For example, in 1770 in Virginia, Moses Riggs was sentenced to death for murder.239 However, due to his apparent insanity, “the Verdict against him was disapproved of by the Court” and he was declared “a fit Object of Mercy.”240 In 1776, it was ordered that “Moses Riggs be discharged from his Confinement in the publick Gaol.”241 In 1757 in New Jersey, a court discharged Elizabeth Post after she was indicted for arson.242 The court was “doubtful . . . whether she was not an idiot or lunatic” and so ordered “the sheriff [to] inquire by the oaths of twelve good and lawful men of his bailiwick whether the s’d Elizabeth Post was [a] lunatic or idiot.”243 After the sheriff returned the finding of lunacy, the court ordered that Post be discharged.244 No information is provided as to how the inquisition reached its determination nor what characteristics of Post led the court to suspect she was an idiot or lunatic. There are other similarly concise reports of colonial cases that acquit idiots and lunatics for serious crimes.245

These cases confirm the practice of idiocy acquittals in the colonies, but they offer little evidence of who was considered an idiot for purposes of criminal liability. Based on our knowledge of common law idiocy acquittals more generally, there is strong evidence that community reputation played a prominent role in these acquittals. The next Part turns to the legal sources that were used by the Framers; the rule promulgated in these sources helps illuminate who was considered an idiot in the criminal context.

C. Identifying Idiots: Hale’s Rule, the Framers’ Rule

There is strong doctrinal evidence that the range of idiots’ intellectual abilities was broader than the narrow definition adopted by the Supreme Court in Penry and Atkins. This is expressed most clearly in the work of Matthew Hale. As discussed above, Hale’s work “had more influence on lawyers of the eighteenth and nineteenth century than any other single work on the subject [of idiocy].”246 Hale provided an illustration to help determine the level of mental impairment that qualified an individual as an idiot for the purpose of criminal liability: only a person who “hath yet ordinarily as great an understanding, as ordinarily a child of fourteen hath, is such a person as may be guilty of treason or felony.”247 In addition to community reputation, there is evidence that this fourteen-year-old rule was used to determine idiocy in criminal cases in England.248

It is interesting that Hale set the age at fourteen for at least two reasons. First, and most obviously, this level of intellectual functioning is far broader than that contemplated under the Supreme Court’s “profound and severe theory.”249 The definition of idiocy that the Court used—the definition that emerged from Goddard’s IQ breakdown in the eugenics movement—held that idiots were people who “could not develop full speech and had mental ages below three.”250 This is plainly not the severity of disability contemplated by Hale’s fourteen-year-old rule.

Second, the choice of fourteen had symbolic significance. During Hale’s time it was fairly well established that the ability to know good from evil was a crucial test for a child on trial for a felony.251 However, a child below the age of seven—the age of reason—was exempted from such a trial.252 Nigel Walker notes

the fact . . . that the madman tended to be compared to the child under the age of fourteen rather than the child under seven suggests that—at first at least—it was failure to appreciate the true nature and quality of his act that was supposed to be [the criminal madman’s] defect.253

Walker uses this incongruity to contrast the theoretical formalism of knowing good from evil with the everyday reality of insanity acquittals:

In all but the exceptional case the madman obviously does mean to kill or at least seriously injure his victim; in other words, what Bracton called the ‘will to harm’ was not lacking . . . . Yet throughout the period we are considering juries were, with the approval of judges, acquitting people who committed insane but intentional acts.254

According to Walker, setting the age at fourteen shielded defendants who purposefully harmed their victims—a much more generous standard than the one advanced by the Supreme Court.

Matthew Hale’s fourteen-year-old rule is an important access point to colonial conceptions of idiocy protections. As discussed below, this rule was duplicated in many of the authoritative resources used by the Framers, and it was the sole method listed for determining idiocy in criminal matters.

One of the principal ways to establish the public meaning of idiocy in 1791 America is to examine legal dictionaries from the period. The Supreme Court increasingly turns to dictionaries to understand the meaning of specific terms.255 For example, in District of Columbia v. Heller, Justice Scalia relied heavily on the 1773 edition of Samuel Johnson’s Dictionary and Timothy Cunningham’s “important 1771 legal dictionary” to determine the original meaning of the phrase “keep and bear arms.”256

In a recent article, Justice Scalia and Bryan Garner identify specific legal dictionaries that they believe best define the meaning of legal terms during particular time periods.257 For the time period 1750 to 1800, Justice Scalia recommends six legal dictionaries, one of which is Cunningham’s 1771 edition.258 All six of the recommended legal dictionaries provide entries for either “Ideots and Lunaticks” or “Idiot.” Five of the six provide extended discussions on the subject259 while the sixth only provides a cursory definition.260 In each of the five, there is a subsection that specifically addresses criminal liability for idiots. In all of these five, the definitions have a similar structure, use similar wording, and cite many of the same authorities.

In Cunningham’s 1771 edition, subsection three is labeled: “How far their want of understanding shall be said to prejudice them in civil and criminal cases,” and nested under that heading is the subsection “Criminal cases.”261 This subsection opens: “It is laid down as a general rule, that ideots and lunaticks, being by reason of their natural disabilities incapable of judging between good and evil, are punishable by no criminal prosecution whatsoever.”262 The subsection proceeds to note that an idiot or lunatic who commits suicide does not qualify as felo de se.263 Subsequently, Cunningham’s dictionary proceeds to a thoughtful consideration regarding the difficulty of determining idiocy in criminal matters:

The great difficulty in these cases is, to determine where a person shall be said to be so far deprived of his sense and memory, as not to have any of his actions imputed to him; or where, notwithstanding some defects of this kind, he still appears to have so much reason and understanding as will make him accountable for his actions, which my Lord Hale distinguishes between, and calls by the name of total and partial insanity; and tho’ it be difficult to define the invisible line that divides perfect and partial insanity, yet, says he, it must rest upon circumstances, duly to be weighed and considered both by the judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature, or on the other side too great an indulgence given to great crimes; and the best measure he can think of is this: Such a person, as laboring under melancholy distempers, hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony.264

This fourteen-year-old rule is the only method offered to determine idiocy for purposes of criminal liability.265 The four other dictionaries likewise cite Hale’s fourteen-year-old rule as the primary method for determining whether an offender is an idiot and therefore immune from prosecution for a felony or treason. Moreover, they track the language of Cunningham’s 1771 edition almost verbatim, differing principally in matters of italicization, capitalization, and spelling.266

Although colonial trial records are unclear on the legal standard they used to determine idiocy, as discussed above, some nineteenth-century trials explicitly relied on the fourteen-year-old rule. For instance, in 1838 a Delaware court cited Hale’s rule as the recommended standard to determine insanity in criminal matters.267 There are additional nineteenth-century cases that cite Hale’s rule,268 as well as nineteenth-century legal scholars from the United States269and England.270

Despite the paucity of the colonial trial records, there is evidence that the notion of a mental age comparison—equating idiocy with childhood—was conceptually intuitive for the colonists. For instance, a Massachusetts deposition in 1670 described an idiot by an age comparison:

[Deponent] and his sisters took a great deal of care and diligently instructed him in reading and he was also put to school, but he did not gain much of what might have been expected . . . . In his ordenary imployment he was incapashous that I neuar saw one of that age soe unfit for larning & any work in which was needfull to haue discresion used.271

Likewise, a Charlestown court in 1690, described an idiot as “void of common reason and understanding that is in other children of her age.”272 These records indicate that Hale’s comparison between idiocy and a young age (fourteen) was not a foreign concept to the colonists.

There is much we still do not know about eighteenth-century idiocy protections. For instance, the historical record is unclear about the legal standard used by the colonists in criminal trials with idiot defendants. Nonetheless, as discussed above, we know that idiocy acquittals occurred and the community reputation of an idiot likely played a large role.273 Moreover, the fourteen-year-old rule provides strong doctrinal evidence that idiocy protections were more expansive than argued by the Supreme Court in Penry and Justice Scalia’s dissent in Atkins.274 Circumstantial evidence supports this reading. As noted above, the colonists “undoubtedly relied on English definitions of idiocy and methods to determine incompetency with which they were familiar.”275 As Nigel Walker noted in his analysis of the Old Bailey Session Papers, late-eighteenth-century England was marked by a statistically significant increase in the success rate of the insanity defense.276 The colonists generally followed English criminal law, and to the extent that they deviated from it, they moved in the direction of leniency and offered alternatives to the death penalty.277 Given this collective evidence, the most persuasive reading of the historical record suggests that eighteenth-century protections for idiots were fairly strong. Moreover, as argued in Part IV, it appears likely that protections from the late eighteenth century would protect some of the offenders whom we execute today.

IV. restoring the constitutional floor: applying eighteenth-century protections today

Part IV asks if there are people on death row today who would have been shielded by idiocy protections in 1791. The answer is likely yes. It then explores how the Court could enforce these protections. Although it is challenging to apply historical standards in a contemporary setting, the fourteen-year-old rule has some natural modern analogues, namely the concept of “mental age.” As this Part explains, the concept of mental age, although it faces complications in both the fields of law and psychology, serves as a useful starting point for the application of idiocy protections today.

It should be clear that restoring the original meaning approach to the Eighth Amendment does not mean adopting ancient models of care or retrograde psychiatric diagnoses. Rather, it means gaining historical evidence about the characteristics of individuals the Framers and ratifying states meant to protect and then abstracting those principles to protect, at minimum, similar people today. In addition, restoring the original meaning approach does not require disrupting the evolving standards of decency approach. Restoring the floor simply establishes immutable, baseline protections below which the evolving standards of decency must not fall. Therefore, the floor can only create new protections to the extent that it exceeds the protections already provided by evolving standards of decency. Based on this Note’s historical analysis, it is likely that restoring the constitutional floor would protect a segment of people with intellectual impairments who are currently sentenced to death.278

A. Why Idiocy Protections Matter Today

It may be helpful to start with a recent example. In light of the foregoing discussion, it is highly likely that in 1791 it would have been considered “cruel” to execute Freddie Hall. Hall is a prisoner on death row who was convicted of participating in the 1978 kidnap, rape, and murder of Karol Hurst.279 Due to questions involving Hall’s intellectual disability, the Supreme Court heard his case, Hall v. Florida, in 2014.280 Hall is illiterate, unable to perform basic arithmetic, and has never been able to hold a steady job.281 Growing up, he was considered intellectually disabled by his entire community, including his siblings, friends, and teachers.282 Furthermore, although expert witnesses differed regarding Hall’s precise “mental age,” all of them diagnosed him with a mental age below a fourteen-year-old.283 Based on these characteristics, it is likely that Hall would have been considered an idiot in 1791 and therefore exempted from execution.

Hall is a strong case for idiocy protection; he qualifies as an idiot under almost any common law test. His inability to read and perform basic arithmetic would likely qualify him as an idiot under Fitzherbert’s definition.284 The collective understanding of his community that he was intellectual disabled would be probative under the community reputation analysis described in Part III.B. Finally, Hall’s low mental age would likely qualify him as an idiot under the fourteen-year-old rule that was accepted common law doctrine in 1791.

Hall’s case illustrates why common law idiocy protections are relevant today: states continue to execute people with significant mental impairments. Although Atkins v. Virginia proscribed capital punishment for people with intellectual disabilities, it left to the states “the task of developing appropriate ways to enforce the constitutional restriction.”285 As Carol and Jordan Steiker argued in 2008, many states adopted stringent procedures governing the determination of intellectual disability, thereby compromising the substantive guarantee of Atkins.286 The Supreme Court’s ruling in Hall v. Florida supports this argument.287

In Hall, the Court held that Florida’s threshold requirement for proving intellectual disability—an IQ of seventy or below—was unconstitutionally rigid.288 Hall is significant because it is the first time the Court stated that Atkins does not give states “unfettered discretion” to define the scope of the constitutional protection afforded to people with intellectual disabilities.289 However, Hall addressed only a narrow issue—the seventy-point IQ cutoff290—and leaves states with considerable flexibility to define intellectual disability. Indeed, the ruling does not necessarily shield Hall himself from execution; it merely holds that his IQ of seventy-one does not foreclose further exploration of intellectual disability.291 And notably for this discussion, the Court’s reasoning relied entirely on the “evolving standards of decency” method and did not mention historical idiocy protections.292

In light of this Note’s historical analysis, death penalty jurisprudence should give renewed focus to the public meaning of idiocy in 1791. Today, all death penalty protections for people with intellectual disabilities are provided through the “evolving standards of decency” approach to the Eighth Amendment, as outlined in Atkins and Hall.293 The original meaning approach to Eighth Amendment jurisprudence currently provides no special protections for people, like Hall, who have substantial intellectual impairments. The constitutional floor is missing. This Note’s historical reassessment suggests that some prisoners on death row today who are not protected by Atkins or Hall may nonetheless be protected by eighteenth-century idiocy protections.

B. Enforcing Idiocy Protections Today

Although several different principles can be abstracted from this Note’s historical analysis, this Part focuses on one of them: the fourteen-year-old rule. The requirement that the offender have “as great understanding, as ordinarily a child of fourteen years hath” is intuitively analogous to the concept of “mental age.”294 Broadly defined, mental age gauges defendants’ “incapacity to function at an adult level cognitively and morally despite [their] chronological age.”295 It would seem that the Court could employ the mental age concept and adopt a per se rule that prohibits the execution of people with a mental age below fourteen. As discussed below, promulgation of this rule might protect a segment of capital offenders currently on death row. As of June 2014, approximately thirty of the last one hundred executed offenders were diagnosed with some degree of mental disability.296 Some of them appear to qualify for idiocy protections based on their mental ages.

Consider Robert Woodall. He is currently sentenced to death for the kidnap, rape, and murder of Sarah Hansen.297 Woodall is mentally impaired and “function[s] at the age equivalency of an 11 or 12 year-old.”298 Furthermore, he has displayed other symptoms throughout his life that are highly associated with idiocy. For instance, Woodall has been incontinent since childhood and “defecate[s] without warning.”299 In the common law, “befouling” oneself was associated with idiocy.300

Other capital cases similarly cite defendants’ low mental ages, but courts often struggle to determine the legal relevance of such evidence. For instance, Thomas Bowling is currently sentenced to death in Kentucky for two murders from 1990.301 Bowling was diagnosed with the mental age of an eleven-year-old.302 However, the Kentucky Supreme Court rejected his mental retardation claim because, inter alia, he did “not cite[] any published authority prohibiting the death penalty based upon ‘juvenile mental age.’”303

Richard Henyard was executed in Florida in 2008 for capital crimes committed when he was eighteen years old.304 During the capital phase of his trial, the court found that Henyard “functions at the emotional level of a thirteen year old and is of low intelligence.”305 However, the court determined that these findings reflected “nonstatutory mitigating circumstances” and therefore accorded them “little weight.”306 This decision was upheld by the Florida Supreme Court in 1996,307 and Henyard was denied habeas relief by both the Florida Supreme Court in 2004308 and the Eleventh Circuit in 2006.309 However, Judge Barkett wrote separately “to address the separate and troubling issue of Henyard’s mental age”:310

As with children and the mentally retarded, mental age is not the result of a failure to abide by an expected standard, but an incapacity to evaluate and comprehend it. The mere fact of a defendant’s chronological age should not qualify a defendant for death where the measures of capacity render him lacking in culpability. Although it may not be directly before us, at some juncture this issue must be addressed.311

Today on death row there are other prisoners—similar to Henyard, Woodall, and Bowling—who have mental ages below fourteen.312

Although mental age seems a straightforward way to apply the fourteen-year-old rule today, the approach faces several challenges. The concept of “mental age” largely fell into legal disuse after the Supreme Court’s ruling in Penry. In Part IV.C of Penry—a portion of the opinion adhered to only by Justice O’Connor—Justice O’Connor examined and rejected the concept of mental age as a consideration in capital sentencing.313 Although Penry was diagnosed with a mental age of six and a half,314 Justice O’Connor found the concept of mental age problematic for four reasons, and concluded that it “should not be adopted as a line-drawing principle in our Eighth Amendment jurisprudence.”315 Her objections were: first, that the trial court made no factual finding regarding Penry’s age; second, that mental age diagnosis begins to plateau at the age of fifteen or sixteen; third, that some courts had already rejected mental age; and fourth, adopting the concept of mental age might deprive people with intellectual disabilities of other rights.316 The Supreme Court has not discussed mental age at length since Penry.317

These four objections are ably rebutted in James Fife’s article, Mental Capacity, Minority, and Mental Age in Capital Sentencing: A Unified Theory of Culpability.318 Fife notes that the first objection was specific to Penry’s procedural history, and is no reason to reject the concept of mental age in general.319 The second objection—that mental age begins to plateau at the age of 15 or 16—does not affect the fourteen-year-old rule discussed in this Note. Fife argues that the third objection is unpersuasive because Penry was a case of first impression, and the cases Justice O’Connor cited were scattered and outdated.320 The final objection is similarly unconvincing. Fife points out the “pure unlikelihood that legislatures or courts would model everyday legal status decisions on the basis of capital sentencing factors.”321

The mental age concept resurfaced in the legal landscape in the wake of Roper v. Simmons in 2005.322 In Roper, the Supreme Court held that the Eighth Amendment prohibits the execution of individuals who were under eighteen years of age at the time of their capital crime.323 The Court arrived at this decision based on the “evolving standards of decency” approach to the Eighth Amendment.324 In dissent, Justice O’Connor noted that it was not considered “cruel and unusual” to execute an individual below eighteen years old in 1791.325 After Roper, several death row prisoners brought actions attempting to combine Roper and Atkins. They argued that these holdings should merge to protect not only those with chronological ages below eighteen, but also those with mental ages below eighteen.326 The lower courts refused to extend Roper to include mental age and categorically rejected these petitions.327

The legal status of mental age remains unsettled. Although many courts reject mental age, others continue to invoke it. For instance, in Atkins v. Virginia the Supreme Court cited the dissenting justices of the Virginia Supreme Court, who had written that “the imposition of the sentence of death upon a defendant who has a mental age of a child of 9-12 is excessive” and “incredulous as a matter of law.”328 More recently, in March 2015, Judge Beverly Martin of the Eleventh Circuit wrote in dissent that a defendant’s claim—that his “mental and emotional age of less than eighteen prohibits his execution”—satisfied the certificate of appealability standard mandated under federal habeas law.329 Numerous other cases and briefs, as mentioned above, reference the mental age of defendants.

Mental age is somewhat unsettled in the psychological literature as well. The concept originated at the beginning of the twentieth century as a way to calculate scores in early standardized intelligence tests.330 The subsequent developments in the mental age concept are well documented—at least from its origins until the 1980s.331 There is surprisingly little literature that discusses mental age as a concept over the past several decades. Nonetheless, various contemporary psychological studies continue to use iterations of the concept in practice.332

In addition, numerous modern psychological tests generate “age equivalency” scores. For example, the Second Edition of the Vineland Adaptive Behavioral Scales (Vineland II) tests the social adaptive functioning of people with intellectual disabilities and measures their performance along a spectrum of ages.333 Vineland II assesses four adaptive skills: communication, daily living skills, socialization, and motor skills (the latter being optional for people over age six).334 The test is “age-based and is defined by the standards of others . . . [representing] the typical performance rather than the potential or ability of the individual.”335 By providing the age equivalency of its test takers, Vineland II would likely be useful in implementing the fourteen-year-old rule.

Similarly, the Fourth Edition of the Peabody Picture Vocabulary Test (PPVT-4) provides age- and grade-based standard scores.336 The PPVT, the first edition of which debuted in the 1950s, provides “excellent reliability and validity” in testing receptive verbal skills.337 Although the test should not substitute for IQ testing, its scores correlate with IQ scores and can provide some general guidance regarding a mental age conversion.338 Using the PPVT-4’s Table for age twenty-five to thirty-one, the following IQ to mental age conversions result: IQ of 50 corresponds to a mental age of 7 years and 3 months; IQ of 70 corresponds to a mental age of 10 years and 5 months; IQ of 75 corresponds to a mental age of 12 years and 2 months; and an IQ of 80 corresponds to a mental age of 14.339 In addition to the PPVT-4, other methods exist for generating mental age calculations based on IQ scores340 or grade equivalencies.341 Although these IQ-to-mental-age conversion techniques are by no means unequivocal, they help to illustrate that the fourteen-year-old rule likely captures a borderline group of intellectually disabled people who are not protected today.

Enforcing historical idiocy protections in the modern context will come with challenges. Complications inhere when transporting historical concepts. To address these challenges, more scholarship is necessary—scholarship that looks both backward and forward. Additional historical research will help fill gaps in our knowledge about idiocy protections; additional legal and psychological scholarship will help apply those protections to capital sentencing today.

More historical research will help supplement our understanding of idiocy protections at the time the Eighth Amendment was adopted. For instance, additional scholarship can refine our conception of the fourteen-year-old rule. Historical sensitivity asks that we consider not just the understanding of an ordinary fourteen-year-old, but the understanding of an ordinary fourteen-year-old in 1791. As noted above, many of the colonial trial records are too terse and descriptively vague to provide much help. Social science (and intuition) suggests that a fourteen-year-old in 1791 would be more mature than a fourteen-year-old today.342 However, a sufficiently rigorous answer calls for more careful work in social history. On a more basic level, what was the public meaning of the word “understanding” in 1791?343 As applied to a fourteen-year-old, did the concept of understanding encompass only intelligence? Or did it also consider social adaptive functioning? Dictionaries from the time period provide some context;344 however, the word “understanding” would benefit from a more sustained treatment, such as John Stinneford’s extended analysis on the eighteenth-century meaning of the word “unusual.”345

Similarly, joint work in the fields of law and psychology will help judges apply idiocy protections today (again, simply as a constitutional floor—not replacing the evolving standards of decency). The concept of mental age holds promise, but it may be insufficiently nuanced to fully capture the protections of the fourteen-year-old rule. As an alternative, psychologists may continue to explore innovative age comparison concepts, such as “adaptive age.”346 According to Stephen Greenspan and his coauthors, a new construct of adaptive age might “enable the courts to understand both the potential and limitations of adults at different developmental levels, while also emphasizing . . . that intelligence as applied to everyday (adaptive) living is a much broader and varied construct than intelligence as captured by IQ scores.”347

These complications are not insurmountable barriers. The Court could take various approaches to understand and enforce eighteenth-century idiocy protections.348 Although there will be procedural hurdles, such challenges should not vitiate our efforts to enforce the underlying substantive right.

Conclusion

This Note makes three contributions. First, it shows that the Supreme Court’s historical analysis of eighteenth-century protections for idiots was deeply flawed. Second, it offers an historical account that strongly indicates that those protections cast a broader net than acknowledged by the Court. And third, based on this historical reassessment, it reveals that there are some prisoners with intellectual disabilities on death row today who likely would have been protected from execution in 1791. Ultimately, this Note’s findings may seem modest. It appears that a small segment of capital prisoners qualify for additional protections based on this historical reassessment. However, from the perspective of those prisoners, this new historical analysis may be vitally important.