Intellectual Disability, Criminal Justice, and the Death Penalty

This chapter introduces the reader to key cases analyzing claims of intellectual disability, describes the current clinical definition and diagnosis, and provides an overview of recurring issues in capital litigation. In 2002, the U.S. Supreme Court ruled that individuals with intellectual disability may not be executed. The Court subsequently clarified that current medical standards must be used in assessing claims of intellectual disability in capital cases. The clinical diagnosis requires assessing three factors: (a) deficits in intellectual functioning; (b) deficits in adaptive behavior; and (c) the onset of deficits during the developmental period. Courts must be informed by current medical standards regarding issues that arise, including the standard error of measurement in IQ scores, the problems of offsetting weaknesses in adaptive behavior with perceived strengths, and other clinical topics. The principle that the death penalty must not be imposed on individuals with intellectual disability signals important responsibilities for social work practitioners.

Social Workers in Capital Defense Practice

This chapter focuses on how social workers are uniquely suited to the essential task of crafting mitigating social histories for capital defendants that can penetrate the fog of misconceptions, disinformation, and demonization/dehumanization endemic to the capital punishment process. Rooted in traditions of antiracism and community education, welfare, and empowerment, whose fundamental aspirations have been to identify and remedy systemic impediments to human welfare and to encourage human mutuality, the 150-year history of American social work places it in natural opposition to capital punishment. Mitigating narratives created by social workers recover defendants’ humanity and empower judicial decision-makers to act mercifully. Decades of social worker participation in capital defense have seen a sharp decline in death sentencing.

The History of Mitigation in Death Penalty Cases

This chapter discusses how the theory and practice of mitigation have evolved over more than four decades, thereby helping to define the modern death penalty era in the United States. Prior to 1976, juries generally made death penalty decisions in a unitary proceeding. Juries then had unfettered discretion to impose death sentences, and the results were so arbitrary that in 1972 the U.S. Supreme Court struck down all the existing death penalty statutes. In 1976, the Court approved new statutes that guided jurors’ discretion. The Court required individualized sentencing in which jurors could consider mitigating factors based on the diverse frailties of humankind. This broad definition of what might inspire juries to reject death was elaborated in succeeding decades in a series of decisions relying on the Eighth Amendment. Social workers and other nonlawyers became critical members of multidisciplinary capital defense teams providing effective representation under the Sixth Amendment.

Linking the Social Services and Criminal Justice Systems

This chapter covers the criminal justice program structures and services and the ways in which social workers are involved in them. Social work’s involvement in the complex criminal justice system is extensive and varied. Direct or clinical practice with individuals, groups of individuals, and their families, are the primary activities of social workers in criminal justice. Social work, among the human services professions, is broader in its approaches than are most others. The social work profession not only focuses on direct or clinical services to clients and their families, but it also involves itself in larger system concerns, such as public policy and research. These nonclinical functions are included in the National Association of Social Workers’ Social Work Code of Ethics, social work licensing standards, and in programs of education for social workers.

Structuralism, Neoliberalism, and the U.S. Criminal Justice System

This chapter addresses how structuralism can be a useful lens through which to view social issues and specifically, for viewing neoliberalism in the United States and its seeming natural predecessors, privatization and deregulation. Such efforts within the criminal justice system may present as, for example, private prison industry and mass incarceration. There are three goals of this chapter: (a) to convince the reader of the value of structural theory as a means of examining helping systems, (b) to convince the reader to be wary of neoliberal prescriptive practices, and (c) to suggest to the reader a consideration for how social work can affect criminal justice reform from the macro social work perspective. With regard to the latter, this chapter also addresses the role of radical social work and critical criminology.

Methodological and Procedural Considerations

This chapter addresses the methodological and procedural aspects of capital litigation. Through a historical and chronological review of legal precedent and procedural changes to capital litigation, it addresses the legacy of change and highlights the era when, due to the Supreme Court decisions in Furman v. Georgia (1972) and Gregg v. Georgia (1976), a moratorium on the death penalty was issued and the constitutionality of capital punishment was under direct judicial scrutiny nationwide. Additional attention is paid to post-Gregg decisions that have transformed capital procedure, limited or expanded its scope, or changed the legal, social, or clinical criteria upon which capital decisions can be based. The chapter concludes with a discussion on the human rights issues brought up by capital punishment in the United States, as well as implications for social workers and other helping professions working within the capital context.

Immigration, Foreign Nationals, and the U.S. Death Penalty

This chapter focuses on the interplay between the policy arenas of immigration and the death penalty in the United States. Central to this interplay is the recognition of foreign national rights on U.S. soil—even when individuals stand accused of committing a capital crime such as murder. The authors provide a sociohistorical background of U.S. immigration policy. Specifically, they address the United Nations, the role of the United States in its development, and its promulgated policies protecting human rights; the Vienna Convention on Consular Relations, including Article 36; and Optional Protocol Concerning the Compulsory Settlement of Disputes. The chapter focuses on Mexican nationals, who represent 13 of 34 foreign nationals executed in the United States since 1976, despite internationally recognized protections. The chapter concludes with a discussion of how the failure of the United States to comply is a clear violation of international human and civil rights standards.

The Relevance of Trauma and Secondary Trauma to Death Penalty Cases

This chapter discusses the relevance of trauma and secondary trauma to death penalty investigations and investigators. U.S. Supreme Court case law recognizes severe trauma in a client’s life history as a powerful mitigating factor. However, uncovering and working effectively with someone else’s most traumatic moments is a delicate and difficult process in the best of circumstances. This chapter outlines recent case law in this area, practical considerations for capital defense teams, and best practices for establishing rapport and investigating your client’s past trauma. Prophylactic measures practitioners can take for preventing their own secondary trauma is also discussed.

On Capital Punishment

This chapter offers a philosophical discussion of capital punishment from the Western tradition, invoking arguments made by Plato, Aristotle, Hobbes, Locke, Rousseau, Kant, and Hegel. Many have questioned the legitimacy of capital punishment in a legal system that fails to provide every legal subject with equal treatment. Whereas we can suspend imprisonment if justice has been miscarried, execution deprives its victim of any remedy in this life. This chapter challenges three grounds offered in the Western philosophical tradition for supporting capital punishment: (a) only a death sentence can save our community from incorrigibly evil perpetrators, as well as save them from themselves, (b) people who commit crimes are outlaws in the radical sense of the term, placing themselves outside the legal order as enemies of the state, which must defend itself by making war upon them, and (c) the only penalty appropriate for the crime of murder is capital punishment.

A Public Health Case for the Abolition of the Death Penalty

This chapter argues that the collateral consequences of the death penalty have implications for human rights. The authors base their argument on the fact that trauma is a public health issue, and the death penalty is a trauma-organized system that gives rise to many secondary victims. A primary goal of public health is to intervene on a vector (i.e., the death penalty) that causes a health effect (i.e., trauma-related symptoms) in such a way that the identified vector is prevented or controlled and the adverse health effect is diminished or nullified. In terms of collateral consequences, this chapter addresses secondary victims, beginning with family members of the defendant and victim, members of the execution team, witnesses of the execution, and capital jurors. This chapter concludes with an exploration of U.S. and international laws that, if considered through a public health lens, lend additional support for death penalty abolition.