A Reassessment of Common Law Protections for 'Idiots'

58 Pages Posted: 25 Jun 2015

See all articles by Michael Clemente

Michael Clemente

Yale University, Law School, Students

Date Written: June 15, 2015


When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.” This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow. It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included 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 likely would have been protected from execution in 1791.

Keywords: originalism, eighth amendment, capital punishment, intellectual disability, mental retardation, idiot

Suggested Citation

Clemente, Michael, A Reassessment of Common Law Protections for 'Idiots' (June 15, 2015). Yale Law Journal, Vol. 124, No. 8, 2015, Available at SSRN: https://ssrn.com/abstract=2621841

Michael Clemente (Contact Author)

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

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