Thursday, March 23, 2017
Charlie Eastaugh (University of Surrey) has posted Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution (Willamette Law Review, Forthcoming) on SSRN. Here is the abstract:
In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication. Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards—decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.
Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions—still visible across the nation—that intelligence is as straightforward as numerical fact. It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.
In Moore v. Texas—for which an eight-Justice Court heard oral argument in November 2016—SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution. This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse—one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution. Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long—often decade-long—stays on death row, invariably in extreme solitary confinement.