Tuesday, December 15, 2009

The military and the death penalty for individuals with disabilities


What are the military courts doing regarding the death penalty for serviceman (or former serviceman) who may be MR/ID or have other psychiatric disorders?

A new DPIC post raised this issue with regard to two war veterans who were suffering from PTSD.

But what about the military and MR/ID?

Below are excerpts from a recent Naval Law Review article (thanks to Kevin Foley for sending this my way; it is now included in the Law Review Article section of the ICDP blog).  I've only skimmed the article but it appears to do a decent case in covering the same core MR/ID definition and assessment issues as in non-military Atkins cases and law review articles.

(Hudson, Fralick & Sautter, 2008).  LIGHTNING BUT NO THUNDER: THE NEED FOR CLARITY IN MILITARY COURTS REGARDING THE DEFINITION OF MENTAL RETARDATION IN CAPITAL CASES AND FOR PROCEDURES IN IMPLEMENTING ATKINS v. VIRGINIA (click here to view).

Excerpts from introduction: In February 2007, the U.S. Navy-Marine Corps Court of Appeals (NMCCA) addressed the issue of mental retardation in U.S. v. Parker.  In short, the Parker decision sparked lightning, but lacked thunder with regards to mental retardation and the death penalty in the military justice system. The court adopted a definition of mental retardation, but, because of the posture of the case, it was unable to address completely some of the more contentious procedural issues surrounding mental retardation and capital murder. While the decision was a step in the right direction, it was only a step and further authoritative action, such as a federal statute, is needed to clarify these issues.

The absence of an authoritative guide poses many problems in relation to how a military trial court should handle an assertion of mental retardation when the accused is charged with a crime that potentially warrants the death penalty. This article will address some of these substantive and procedural issues within the context of the military justice system. The authors first argue in support of the definition of mental retardation that the NMCCA adopted in Parker. Next, the article proposes solutions to some of the procedural issues surrounding an assertion of mental retardation, including: which party carries the burden of proof, what the standard of proof should be, whether a judge or jury should hear the claim, and whether an assessment of mental retardation should take place before or after trial. Finally, the authors conclude with an appeal for authoritative clarification of these issues in the military from either Congress, the Court of Appeals for the Armed Forces, or the President through his regulatory authority.

Excerpts from conclusion:  In this article the authors have attempted to clarify many of the
substantive and procedural issues surrounding mental retardation and its effecton capital murder trials. In short, it is the authors’ contention that the military justice system is in need of official guidance. Mental retardation is an important issue that should be clarified before any capital murder case is undertaken. In order to avoid unnecessary confusion or delay in the processing of an accused raising an Atkins claim, and to ensure the rights of the accused are observed to the extent required by law, the military needs guidance from Congress, the Court of Appeals for the Armed Forces, or the President through his regulatory authority.

I was able to locate a 2007 decision re: Parker rendered by the U. S. Navy-Marine Corps Court of Criminal Appeals.  The decision at that time was:


We recognize that the record in this case does not exhibit a full and fair  opportunity for the appellant to establish by a preponderance of the evidence that he is mentally retarded and that the death penalty is, therefore, prohibited by the Eighth Amendment based on the Supreme Court's holding in Atkins. A limited hearing, conducted by a military judge, for the purpose of developing the evidence on the issue of mental retardation and making appropriate factual determinations is required. United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). Until the stay imposed by our superior court on the mental health evaluation ordered by this court at the request of the appellant is lifted, however, we cannot proceed on that matter.

I've been unable to locate any further documents since 2007.  In particular, it would be interesting to secure copies of the oral arguments.  Why?  Because to the best of my knowledge an individual enlisting in the Navy must receive a minimal Armed Forces Qualification Test (AFQT) score on the Armed Services Vocational Aptitude Battery (ASVAB) (click here and here).  Given the enlistment screening on the ASVAB, one wonders whether either the prosecution and/or defense referenced the ASVAB scores during their arguments.  Given that the ASVAB has been argued to be a good measure of general intelligence or g (see Koening et al., 2008 and Legree et al., 2000; see Roberts et al., 2000 for argument that the ASVAB is a more limited cognitive measure of Gc and not g) , wouldn't these score be relevant to the proceedings?  More importantly, if they were significantly below average and suggestive of cognitive limitations, why would Parker have been allowed to enlist in the military?  If they were not significantly low, then one would think that the military court would need to wrestle with the discrepancy between the ASVAB scores and the formal IQ testing reported during the proceedings.

Does anyone know more about this case and, in particular, whether Parker's ASVAB scores were used during the proceedings?  Curious minds want to know.


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