Autism and Mercy in Capital Crimes

In the past decade autism has been diagnosed or suggested in a number of high profile spree killers.  Most of the conversation to date has centered on three facts:

• ·     People with autism are more likely to be victims than perpetrators of aggressive violence. 
• ·     In many cases spree killers kill themselves, or are killed by police, and no official mental health diagnoses emerge.  Suggestions of autism or anything else are therefore speculation which is rightly criticized as inflammatory;
• ·     Even when a credible diagnosis exists there is considerable dispute about any role autism may have played in shaping the defendant toward the crime.  

All three of the issues raised above are real.  No matter what the answers are one is led to this fundamental question: Should society treat autistic defendants differently than other kinds of defendants? Why or why not?

In June of 2002 the US Supreme Court ruled that executing people with intellectual disabilities violated the Eighth Amendment prohibition against cruel and unusual punishment.  That decision, known as Atkins, had far-reaching implications.

The Court made several arguments, one being that people with intellectual disability may understand a specific act (such as shooting someone) but lack the intellectual capacity to understand the moral wrong of their action.  Executing them for the act would therefore be wrong.  Society has generally agreed with the Court.  But what are the boundaries of the decision? What exactly defines an intellectually disabled person?

Death penalty opponents saw that decision as “chipping away” at legal execution, by carving out a protected group of people.  Some thought that opened the door to the identification of other protected groups.

To my surprise, advocates for intellectually disabled people were not unanimous in praise of Atkins. Some opposed it; arguing that the court's opinion that ID people should be protected because they could not tell right from wrong would provide a basis for discrimination against them in more prosaic circumstances.  Might the court's decision support denying an intellectually disabled person a job over imagined inability to tell right from wrong with respect to stealing money?

It’s hard to know if Supreme Court decisions trickle down to that extent but it’s clear that people think they do, or fear they will. Intellectually disabled people are certainly subject to many forms of marginalization.  Observers make a leap from looking at a crime and theorizing why it was committed, to identifying people who have some imagined similarity to the defendant, and considering how those people may act in a less extreme context.

You might call this armchair psychology at its worst; thinking “a killer didn’t know right from wrong and he’s intellectually disabled,” to imagining the convenience store you manage, and how an intellectually disabled employee might harm you. Crazy as that sounds many of us have seen it in action.

At the same time, it’s true that some people don’t know right from wrong, and there is a strong moral argument that they should be protected from execution for doing a thing whose implications they cannot understand.  

Note that the court only addressed the question of execution.  They did not have issue with the idea that society deserves protection from criminals, whether intellectually disabled or not.  The justices did not in any way equate intellectually disabled with not guilty.

The justices extended their thinking three years later.  In March of 2005, in Roper vs. Simmons, the Court held that the Eighth and Fourteenth Amendments forbade the execution of offenders who were under the age of 18 when their crimes were committed.

Justice Kennedy, writing for the majority, said: When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.

That application of a controversial idea from Atkins was not questioned in this context because the intellectual limitation was grounded in youth as opposed to so-called permanent disability.  A subsequent decision extended the protection of youth to age 21.

Prior to Atkins and Roper the court recognized other situations where individuals could not recognize right from wrong.  Over the years those arguments led to the idea of psychiatric hospitalization instead of prison in cases of insanity, and mercy for those who committed crimes in the heat of passion.

We now face the next step in the application of this path of thinking. If a person who cannot understand the moral implications of their acts must be protected, and an undeveloped mind falls under this protection, then a person whose mind is undeveloped through the combination of youth and developmental delay should be protected by extension of the arguments in Atkins and Roper.

Autism is a developmental delay.  That means the cognitive abilities of a young autistic adult may still be those of a child, even some years into legal adulthood, which should qualify them as part of the protected group.  Furthermore, there is considerable overlap between the autistic and intellectually disabled populations so the original application of Atkins may be arguable there too.

Autism is one condition that causes delayed moral maturation in some non intellectually disabled people. There are other possible causes, which raises the point that one’s ability to know right from wrong in the mature way expected by the Court does not magically appear on one’s 21^stbirthday.  Some come to that ability sooner, more later, and a few never get there.

One challenge the public faces when applying and understanding this reasoning in high profile cases is the nature of the crimes.  What if the young person who supposedly did not know right from wrong killed a number of kids in school?  

The truth is, all capital murder cases are horrific in their details.  We talk dispassionately about how intellectual disability should protect Atkins from execution for what he did, without giving much thought to what that was.  In fact he willingly abducted, robbed and murdered an innocent person he and his friend found at a nearby convenience store.  Roper participated in a break in and robbery, after which they tied up and blindfolded their victim, drove her to a state park and threw her off a bridge.

In these decisions the justices recognize the merciful nature of an advancing society, and the recognition that it’s morally wrong to execute people who cannot understand the implications of their actions, for a variety of reasons.  The argument for extending the protections set out in Atkins a bit further is not without merit.  However the absence of definite boundaries makes its definition far from clear.

There is another moral issue at play, which is that the justification for protecting a killer with a cognitive disability may contribute to marginalization of many innocent people with the same cognitive disability.  They might feel the greater moral imperative lies with protecting themselves, even if that bodes ill for the killer.

Some people (a large part of the US population) are morally opposed to all executions, and so see this as superfluous.  Others (also a significant group) support the death penalty but make exceptions for a small number of people.  A smaller minority of Americans support the death penalty for all, in the case of most serious crimes, and therefore disagree with Atkins and successive decisions.

These are difficult questions, with unexpected complexity.  

(c) 2018 John Elder Robison

John Elder Robison is an autistic adult and advocate for people with neurological differences.  He's the author of Look Me in the Eye, Be Different, Raising Cubby, and Switched On. He serves on the Interagency Autism Coordinating Committee of the US Dept of Health and Human Services. He's co-founder of the TCS Auto Program (A school for teens with developmental challenges) and he’s the Neurodiversity Scholar at the College of William and Mary in Williamsburg, Virginia. He's also a visiting professor of practice at Bay Path University in Longmeadow, Massachusetts and advisor to the Neurodiversity Institute at Landmark College in Putney, Vermont.  

The opinions expressed here are his own.  There is no warranty expressed or implied.  While reading this essay will give you food for thought, actually printing and eating it may make you sick.