Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution

22 Pages Posted: 15 Mar 2017 Last revised: 27 Apr 2017

Date Written: March 26, 2017


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 delivered its opinion in March 2017—SCOTUS took the opportunity to provide further, essential clarity to this debate by making extensive reference to consensus among the medical profession. The immediate ramifications of Moore were that the inmate is at least temporarily spared from execution, but 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. By showing willing to follow the Hall trajectory in Moore and deferring to professional expertise, 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.

Keywords: Intellectual disability, mental health, Eighth Amendment, punishments clause, solitary confinement, death penalty, Hall v. Florida, Atkins v. Virginia, Moore v. Texas, Supreme Court, SCOTUS, I.Q., lethal injection

Suggested Citation

Eastaugh, Charlie, Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution (March 26, 2017). Willamette Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2932187

Charlie Eastaugh (Contact Author)

University of Surrey ( email )

Guildford, Surrey GU2 5XH
United Kingdom

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