The Death Penalty and Intellectual Disability (Part 8)

Justice Sotomayor continued in relevant part: The remaining prong, deficits in adaptive functioning, “requires an evaluation of the individual’s ability to function across a variety of dimensions.” Brumfield, 576 U. S., at 317. A defense expert’s evaluation of Coonce identified significant impairments in memory, language, attention, reasoning, ability to organize information, and executive functioning. There is also evidence that Coonce was unable to hold employment, control his impulses, and function independently. Even in the regimented environment of prison, Coonce’s attorneys represent that he continues to engage in self-mutilation, has proven unable to timely take medication, and cannot complete other basic tasks.

In sum, if Coonce satisfies the age-of-onset requirement, he has a substantial likelihood of proving he has an intellectual disability. In light of the above, the material change in the AAIDD’s leading definition of intellectual disability plainly warrants a GVR. To my knowledge, the Court has never before denied a GVR in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt.

That some “other evidence in the record cuts against Coonce’s claim” is no justification for denying a hearing, Brumfield v. Cain, 576 U. S. 305, 320 (2015), especially where that evidence was less than compelling. For example, a psychologist estimated Coonce’s IQ at around 79 after his accident, while a Bureau of Prisons psychologist later estimated his IQ at around 77. However, neither of these estimates used tests designed to measure IQ. In contrast, the expert witness who calculated Coonce’s IQ at 71 did so using the leading clinical instrument for conducting such testing. Even the Government’s expert conceded that the defense expert’s IQ testing was conducted properly and that there was no evidence of malingering.

An argument in favor of Coonce’s execution is that a life without parole sentence as opposed to execution would amount to a free crime. That’s because Coonce was already serving a life without parole sentence when he murdered an inmate who he and his accomplice believed was an informant.