My aim in this short Article is both specific and general. Specifically, I examine whether the Eighth Amendment should be held to prohibit imposition of death sentences upon offenders with severe mental illnesses, as is the case with mentally retarded and juvenile offenders. More generally, and perhaps more importantly, I examine the current Eighth Amendment test for categorical prohibitions, find it wanting, and propose a different test that, at least in my view, more neatly captures what the Eighth Amendment is intended to accomplish.
I believe the key to an Eighth Amendment analysis of categorical prohibitions lies in two dilemmas that arise from the likely answers to the three questions posed above.
The first dilemma revealed by these questions arises from the double bind in which certain categories of capital defendants find themselves.' To understand the double bind, reconsider questions one and two. The very facts that suggest Scott is likely to be dangerous in the future also point to his reduced culpability. For example, Scott's persistent irrationality, paranoia, and hallucinations regarding the devil, all of which are attributes of his mental illness, make one queasy about his potential to be dangerous in the future; at the same time, however, it is this very irrationality that reduces (at least somewhat) his blameworthiness for the murder of his in-laws. The same is true for Christopher. His relative youth, with the characteristic impulsivity and poor judgment that persist into early adulthood, suggests he may have a few violent years ahead of him, but it is his youth that at least raises the question of whether his crime stemmed in part from the confusion of a troubled adolescent rather than from a purely cold, amoral, formed character. In short, the very traits that should be mitigating are, in another sense, aggravating. What is one to make of this as a jurisprudential matter? Should one of the questions simply yield to the other, or should we allow them to coexist in this current uneasy tension? ...
In a nutshell, my argument boils down to the following. First, moral deserts absolutely should be the focus for a categorical prohibitions test. Second, the double bind, which represents a clash of deserts-based (retributive) principles and utilitarian principles, is the key to categorical prohibitions. Given the primacy of deserts, utilitarian concerns like future dangerousness must yield to deserts determinations. When the traits of a particular condition are such that the same traits that make one less likely to deserve death make a death sentence at least potentially more appropriate on utilitarian grounds, a categorical prohibition on death is warranted. A more detailed version of my argument contains six steps.
Pamela A. Wilkins, Rethinking Categorical Prohibitions on Capital Punishment: How the Current Test Fails Mentally Ill Offenders and What to Do About It, 40 U. Mem. L. Rev. 423 (2009).