Commonwealth v. Cox

• Decision Date: 21 October 2020
• Docket Number: No. 783 CAP,783 CAP
• Citation: 240 A.3d 509
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Russell COX, Appellant
• Court: Pennsylvania Supreme Court

240 A.3d 509

COMMONWEALTH of Pennsylvania, Appellee

v.Russell COX, Appellant

No. 783 CAP

Supreme Court of Pennsylvania.

Submitted: April 9, 2020

Decided: October 21, 2020

OPINION

JUSTICE WECHT

On March 26, 2019, we remanded this capital appeal to the PCRA¹ court for further consideration of Russell Cox's claim that, due to his intellectual disability,² the Eighth Amendment to the United States Constitution and the Supreme Court of the United States’ decision in Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), precluded him from being sentenced to death.³ Upon remand, the PCRA court reconsidered the record and again determined that Cox had failed to establish that he was entitled to relief. We vacate that ruling, and we remand the case to the PCRA court for further proceedings.

I.

Before proceeding to the background of this case, it is necessary first to outline briefly the law concerning capital punishment and intellectually disabled persons, beginning with the complete ban on the execution of such individuals, and ending with the standards that have developed in the U.S. Supreme Court and in this Court for classifying a capital defendant as intellectually disabled.

The Eighth Amendment forbids, inter alia , the infliction of "cruel and unusual punishments." U.S. CONST. amend. VIII. This prohibition restrains the federal government as well as the States through application of the Fourteenth Amendment. Robinson v. California , 370 U.S. 660, 666-67, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). By prohibiting inhumane treatment of even those who have committed the most serious crimes, "the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons." Roper v. Simmons , 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ; see also Trop v. Dulles , 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) ("The basic concept underlying the Eighth Amendment is nothing less than the dignity of man."). To enforce this mandate, the Supreme Court has weighed each contested form of punishment against the "evolving standards of decency that mark the progress of a maturing society." Trop , 356 U.S. at 101, 78 S.Ct. 590.

In Atkins , the Supreme Court applied this test in assessing the constitutionality of executing intellectually disabled individuals. Atkins , 536 U.S. at 311-12, 321, 122 S.Ct. 2242. Marking a significant jurisprudential shift from Penry v. Lynaugh , 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)⁴ —the lone precedent on this question at the time—the Supreme Court discerned a national consensus against the execution of this category of offenders. The Court observed that, in Penry ’s wake, State legislatures began prohibiting the practice by statute. Notwithstanding the significance of the sheer number of States to have adopted these laws, the Court found "the consistency of the direction of change" toward prohibition to be even more representative of our society's evolving standards of decency. Atkins , 536 U.S. at 314-15, 122 S.Ct. 2242.

In addition to the emerging consensus against executing intellectually disabled persons, the Court identified two compelling reasons that bolstered its view that executing such persons violated the Eighth Amendment. First, executing intellectually disabled individuals would not promote the traditional goals of punishment. The Court opined that the sanction does not support a deterrent aim, as those who fall within this category of offenders have a "diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses," all of which renders those individuals less likely to be able to "process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information." Id. at 320, 122 S.Ct. 2242. As to retribution, the Court similarly determined that the limited mental capacity attendant to intellectual disability lessens the offender's moral culpability and, thus, the retributive justification for capital punishment. Id. at 319, 122 S.Ct. 2242.

Second, the Court explained that the execution of intellectually disabled individuals impairs the integrity of the trial process, inasmuch as such individuals "face a special risk of wrongful execution." Id. at 320-21, 122 S.Ct. 2242. Specifically, the Court pointed to the increased likelihood that an intellectually disabled person would falsely confess, provide incorrect or unconvincing testimony as a witness, and be unable to assist his or her attorney during critical phases of the trial. Id.

Combined with the growing national consensus, these dual concerns drove the Supreme Court's holding that the Eighth Amendment categorically precludes executing intellectually disabled offenders. Notwithstanding three dissenting votes and two written dissents, see id. at 321-28, 122 S.Ct. 2242 (Rehnquist, C.J., dissenting); 337-54 (Scalia, J., dissenting),⁵ the Atkins Majority doubted the existence of any "serious disagreement about the execution" of intellectually disabled offenders. Id. at 317, 122 S.Ct. 2242. To the extent that there was such disagreement, however, the Court believed that it would arise "in determining which offenders are in fact [intellectually disabled]." Id. The Court offered no guidance to ease the all-but-certain difficulties that would result when States began attempting to identify the offenders who fell on each side of this new constitutional demarcation. Instead, the Court left "to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." Id. (quoting Ford v. Wainwright , 477 U.S. 399, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) ).

This Court picked up that baton in Commonwealth v. Miller , 585 Pa. 144, 888 A.2d 624 (2005). There, for the first time we defined "intellectual disability" for purposes of implementing Atkins ’ ban. See supra n.2. We began by noting that the Atkins Court itself identified two viable options for adjudicating the mental status of a defendant. The first option was provided by the American Association of Mental Retardation ("AAMR"), which defined intellectual disability as a "disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in the conceptual, social, and practical adaptive skills." Id. at 629-30 (quoting AAMR's MENTAL RETARDATION : DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 1 (10th ed. 2002) (" MENTAL RETARDATION ")).⁶ The second came from the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1992) ("DSM-IV"), in which the disability is present when one shows "significantly subaverage intellectual functioning (an IQ of approximately 70 or below) with onset before age 18 years and concurrent deficits or impairments in adaptive functioning." Id. at 630 (quoting DSM-IV at 37). We discerned three common elements in these two definitions: (1) limited intellectual functioning; (2) significant adaptive limitations; and (3) onset before the age of eighteen. Id .

Mere identification of the common elements failed to provide a complete definition of the term. The first two factors required further elaboration. See id. at 630 n.7 (explaining that that third factor, age of onset, was self-explanatory and its meaning required no further examination). As to the first, this Court recognized that the best way to quantify a person's intellectual functioning is an IQ score. However, we declined to "adopt a cutoff IQ score" that would represent per se intellectual disability. Id. at 631. Rather, the score is one factor in the overall evaluative scheme. We cautioned that the IQ score should not be taken strictly at face value. The score must be adjusted for the standard error of measurement ("SEM")⁷ , which generally "has been estimated to be three to five points," depending upon the specific testing protocol used for the test. Id. at 630 (citing MENTAL RETARDATION at 57; DSM-IV at 39). Thus, for purposes of the first factor, a person may be considered impaired by limited intellectual functioning if he or she has an IQ score anywhere between 65 and 75 on the Wechsler scales. Id.

We then turned to the second factor, which focuses upon limitations in a person's adaptive behaviors. We explained that adaptive behaviors are the "collection of conceptual, social, and practical skills that have been learned by people in order to function in their everyday lives." Id. (citations omitted). Limitations on these basic behaviors often are "reflected by difficulties adjusting to ordinary demands made in daily life." Id. (citations omitted). We held that the most reliable and accurate way to evaluate a person's limitations on adaptive behaviors is the use of standardized measures. Using such measures, "significant limitations in adaptive behavior" are found when the person's performance "is at least two standard deviations below the mean of either (a) one of the following three types of adaptive behavior: conceptual, social, or practical, or (b) an overall score on a standardized measure of conceptual, social and practical skills." Id. at 630-31 (quoting MENTAL RETARDATION at 14).

Finding that both definitions materially are the same, we declined to choose between the two. Thus, to prove that a person is intellectually disabled (or not), "a [properly qualified] expert presented by either party may testify as to [intellectual disability] under either classification system." Id. at 631.

In the years after we decided Miller , the Supreme Court issued decisions refining its Atkins jurisprudence, beginning in 2014 with Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). Following Atkins , Hall sought to have his death sentence vacated on the grounds that he was intellectually disabled. Id. at 707, 134 S.Ct. 1986. Over the course of 40...