Legal Idiots

In several American states, “idiots” do not have the right to vote: abstract. When the Eighth Amendment was ratified, common law protection categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court has considered whether this protection prohibits the execution of persons with intellectual disabilities; However, the court concluded that the protection of idiocy only protects the “profoundly or severely mentally retarded.” This note argues that the Court`s historical analysis of the protection of idiocy was too narrow. He then reassesses the insane protection of idiots at common law and finds strong evidence that this protection covers 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 would likely have been protected from execution in 1791. The present note consists of four parts. The first part frames the discussion by describing the common law concepts of “cruel and unusual,” the contours of the Eighth Amendment, and early protection against insanity. Part II criticizes the Supreme Court`s historical analysis in Penry and Atkins and shows that the Court relied on post-ratification models of disability (such as eugenic and phrenological models) to develop a narrow definition of “idiocy.” Where the Court has used pre-ratification sources, it has selectively cited atypical cases or relied on atypical cases. Part III reassesses protection from insanity for “idiots” and notes that notions of “idiocy” were not limited to those who were “deeply or severely” mentally retarded; Instead, “idiocy” encompassed a relatively broad spectrum of intellectual disabilities. Importantly, this section shows that colonial and American jurists relied on Matthew Hale`s test for determining the criminal responsibility of “idiots”: persons whose mental faculties were inferior to those of an ordinary fourteen-year-old child were not responsible for crime or treason.14 The fourth part examines how this historical reassessment might affect contemporary death penalty trials. Invoking the fourteen-year-old rule, it appears that a subset of prisoners sentenced to death with intellectual disabilities would likely have been called “idiots” in 1791 and should therefore be exempt from execution today. The surviving acquittals of colonial madness offer little evidence of the legal norm that was used.

For example, Moses Riggs was sentenced to death for murder in Virginia in 1770.239 However, because of his obvious madness, “the sentence against him was disapproved by the court” and he was declared “an appropriate object of mercy.” 240 In 1776 it was ordered that “Moses Riggs be released from imprisonment in a public prison.” 241 In 1757, a New Jersey court fired Elizabeth Post after she was charged with arson.242 The court was “doubtful. if she was not an idiot or a fool” and therefore ordered “the sheriff to ask, by the oaths of twelve good and lawful men of her bailiwick, whether Elizabeth Post was a fool or an idiot.” 243 After the sheriff issued the finding of insanity, the court ordered Post`s dismissal.244 No information is provided as to how the Inquisition made its decision or what characteristics of Post led the court to suspect that she was an idiot or a lunatic. There are other equally succinct accounts of colonial cases in which idiots and lunatics are acquitted of serious crimes.245 In a recent article, Justice Scalia and Bryan Garner identify specific legal dictionaries that they believe best define the meaning of legal terms at particular time periods.257 For the period 1750 to 1800, Justice Scalia recommends six legal dictionaries: one of them is Cunningham`s 1771-258 edition The six recommended law dictionaries contain entries for “Ideots and Lunaticks” or “Idiot.” Five of the six offer in-depth discussions on the subject,259 while the sixth provides only a superficial definition.260 In each of the five, there is a subsection that deals specifically with the criminal liability of idiots. In each of these five cases, the definitions have a similar structure, use similar wording, and cite many of the same authorities. The general public was also aware of the criminal protection afforded to idiots and lunatics. In 1788 the Independent Gazette of Philadelphia reported the case of a “deranged” man who repeatedly attacked people, smashed windows, and spat in the face of a judge. However, he was constantly remanded in hospitals instead of being prosecuted.194 Many colonial newspapers reported extensively on the acquittal in 1786 of Margaret Nicholson, a woman without compos mentis, who was attempting to murder the life of King George III. 195 In 1789, the Boston Herald of Freedom circulated a report from London in which seventeen-year-old Eleanor Johnson committed suicide.196 The newspaper reported that “intimacy between the deceased and a black man, Thomas Cato, a native of the East Indies, to whom she had addressed her affection.” 197 After Cato “accused her of deception,” Johnson poisoned herself.198 The report continues: “When questioned by the jury, the black man seemed so ignorant and uneducated that nothing could be drawn from his testimony. The jury, after a very human and careful reflection, rendered its verdict, LUNACY. 199 These reports show that the colonial population in general was aware of the protection of idiocy and its English origins. The settlers were particularly loyal to English criminal law. Although scholars note that settlers departed from English law in some respects (forming “native law”), this was generally not the case with criminal law.41 When settlers departed from English criminal law, they tended to move in the “direction of leniency” by “giving judges alternatives to the death penalty.” 42 Since the Eighth Amendment contained the same protection as the English Bill of Rights, the following historical study examines the protection afforded to idiots in English and colonial common law.43 Justice O`Connor wrote for the Court, recognizing that historical protection exempted idiots from execution; She asserted, however, that this protection extends only to persons who were “profoundly or severely retarded” and not to those who were moderately or mildly retarded mentally.73 The historical evidence supporting this assertion is examined in detail and challenged in Part II.B.