Professional Documents
Culture Documents
DAVID M. SIEGEL*
The more we learn what happens in our minds and brains, the more
difficult capital punishment becomes in the United States. At least, that is
what the Supreme Court is discovering. Apart from questions concerning
racial disproportionality in seeking or imposing the death penalty, the
ambivalent evidence concerning any deterrent impact it may have and the
very substantial evidence that its cost far outweighs that of life
imprisonment without parole, after Madison v. Alabama, prosecutors who
consider seeking the death penalty will have to weigh one more
consideration: the likelihood that, even if they obtain it, the defendant’s
future neurodegenerative decline may preclude its imposition.
For nearly a decade, the Court has acknowledged the psychological
and neuroanatomical learning that behavioral and decision-making
characteristics of adolescents and young adults incline them to risk-taking,
inability to project future consequences, and susceptibility to peer pressure
in ways that constitutionally must affect their susceptibility to punishment.
That kids are different may seem a trite observation, now that it is
unconstitutional to impose life without the possibility of parole on
juveniles for non-homicide offenses,1 and to do so even for homicide
offenses without an individualized sentencing process that specifically
considers those features of youth,2 but just fifteen years ago it was
constitutional to impose the death penalty on a child.3 And just eighteen
years ago it was constitutional to impose the death penalty on a
developmentally disabled person. 4 And until last month, it was
* David M. Siegel is a Professor of Law and Director of the Center for Law and Social
Responsibility at New England Law|Boston.
1 Graham v. Florida, 560 U.S. 48 (2010).
2 Miller v. Alabama, 567 U.S. 460 (2012).
3 Roper v. Simmons, 543 U.S. 551 (2005).
4 Atkins v. Virginia, 536 U.S. 304 (2002). While there was no similar change in
understanding developmental disabilities over the same period, there has been a significant
change in care and service for developmentally disabled persons since the 1960s, from care
101
THE NARROWING WINDOW 3/21/2019 6:27 PM
11 Id. at 407.
17 Br. for Pet. at 5, Madison v. Alabama, https://perma.cc/8QPQ-Y5SZ (U.S. Feb. 27, 2019) (No.
17-7505).
18 Alzheimer’s Desease and Related Dementias, CENTER FOR DISEASE CONTROL AND
PREVENTION, https://perma.cc/H4BS-EBDP (last visited Mar. 18, 2019).
19 Alzheimer’s Desease and Related Dementias, supra note 18.
20 Elizabeth Davis & Tracy L. Snell, Capital Punishment, 2016 – Statistical Brief, BUREAU OF
who ends on death row was 28,21 and the average time from sentence to
execution was fifteen and a half years. 22 Prison inmates in the United
States age much more quickly than do persons in the free world, 23 and a
disproportionate number of them suffer from severe mental illness.
As one scholar recently suggested, the death penalty “is a failed
experiment with human life that has devolved into human
experimentation in methods of execution of often feeble and otherwise
impaired prisoners.”24 Given the Court’s decision in Madison that it
doesn’t matter why an inmate awaiting execution cannot understand the
reason he is being executed, and the inexorable process of aging, capital
punishment in the US will likely depend on whether someone is sentenced
to death early enough to remain competent to be executed. And none of us
are getting any younger.
Prison and Dementia, 51 J. FORENSIC & LEGAL MED. 40, 42 (2017) (“Studies have revealed that
the prison population experiences age related health issues at the same rate of people one
decade older.”).
24 Linda Malone, Too Ill to be Killed: Mental and Physical Competency to be Executed Pursuant