Judicial Notebook

In early 2006, California executed a 76-year-old man, Clarence Ray Allen, who was legally blind, in a wheelchair, and had other serious medical problems. He had suffered a heart attack four months previously but was revived so that he could be returned to death row. Because of his ailments, he asked the court to convert his death sentence to a life sentence. The Ninth Circuit ruled that executing a seriously ill elderly person was not cruel and unusual punishment because a community sentiment against executing elderly or seriously ill individuals had not been demonstrated (see Allen v. Ornoski, 435 F.3d 946, 9th Cir. 2006). Further, unlike juveniles and the mentally retarded, Allen was culpable at the time of the crime, and thus could not be spared. The Supreme Court declined to hear his case (Allen v. Ornoski, 126 S. Ct. 1140, 2006), and Allen was executed at San Quentin Prison on Jan. 17, 2006.

In 2003, there were 110 people age 60 or older on death row, more than three times as many as a decade before. Thus, it is probable that courts will hear such cases again.

Special populations

The Supreme Court has ruled that it is unconstitutional to execute juveniles, the mentally ill and the mentally retarded. In general, the Supreme Court found that executing these groups violates the Eighth Amendment's prohibition of cruel and unusual punishment. Comparing elders with these populations has implications for whether courts may someday rule that elders should also be spared the death penalty.

The Supreme Court, in Roper v. Simmons (125 S. Ct. 1183, 2005), determined that executing juveniles was unconstitutional. The court stated findings from both psychological and neuropsychological research, which determined that adolescents were incapable of making mature judgments because they rely heavily on emotions and are easily influenced by peer pressure.

In Ford v. Wainwright (477 U.S. 399, 1986), the Supreme Court ruled that it was unconstitutional to execute mentally ill prisoners because this would violate the country's "evolving standards of decency." Further, these prisoners suffer from severe mental illness and do not understand why they are being executed.

In Atkins v. Virginia (122 S.Ct. 2242, 2002), the Supreme Court ruled that executing mentally retarded prisoners was unconstitutional. They relied heavily on evidence that the nation did not support such executions. The court also determined that mentally retarded prisoners have difficulty controlling their impulses and are incapable of understanding their punishment. These factors make them less culpable and less deserving of the death penalty. The court also noted that executing the mentally retarded is not likely to be a deterrent or further the goal of retribution.

Executing the elderly

Based on the reasoning in these cases, it seems unlikely that elderly prisoners would receive a blanket exemption from execution. Presumably, most were fully functioning at the time of the crime; thus they cannot argue that peer pressure, an underdeveloped brain, lack of impulse control or mental impairment made them less culpable. Any exemption could also encourage additional appeals, in order to prolong one's time on death row until attaining "nonexecutable" age.

Despite the improbability of being spared as a group, individual elderly prisoners could be spared based on their circumstances. The strongest argument an elderly person would have is if he or she suffers from dementia or some other age-related mental deficiency. Such people might be spared the death penalty because, like mentally ill or retarded individuals, they would not understand why they were being executed at the time the sentence was being carried out.

Roles for psychologists

Psychologists can get involved in several ways. First, they can measure community support for execution of the elderly, just as they did with the other special populations. Courts have used public opinion polls as evidence of the community's "evolving standards of decency." Second, psychologists can inform the courts as to whether age-related disorders, such as Alzheimer's disease, make a prisoner incompetent to be executed. While much is known about the cognitive impairments that accompany age, little is known about these impairments in the context of cognitive appraisals of punishment in general, or the death penalty in particular. Third, psychologists can determine whether execution of the elderly deters crime.