Tomorrow, the United States Supreme Court will hear one hour of oral argument on an issue it already has considered on a few occasions since the turn of the century: the proper procedure to determine whether a convicted murderer is mentally disabled and thus ineligible for the death penalty.

Over the decades, the SCOTUS has compiled a very short list of categories of convicted felons deemed ineligible for a state's death penalty: juveniles, the mentally insane, persons convicted of crimes other than murder, and of course, the mentally disabled.  The basis for each of these prohibitions is the 8th Amendment's ban of cruel and unusual punishment.

Mental disability made the list via the 2002 decision in Atkins v Virginia. In that case, the SCOTUS only went so far, leaving it up to the death penalty states how to determine whether a convicted murderer was mentally disabled. After Atkins, the High Court provided scant additional guidance, holding that states could not rely on any single factor, such as a low IQ, in making the mental disability determination.

In any death penalty case, there are two trials: one determines guilt or innocence; the other determines punishment at a sentencing trial. The issue to be considered by the SCOTUS tomorrow morning in Brumfield v Cain is whether the 8th Amendment requires yet another separate hearing to solely consider evidence of the asserted mental disability.

If such an evidentiary hearing is required, it would be a trial, within a trial, within a trial. Trey complicated.

Consider that Kevin Brumfield was convicted of killing a police officer moonlighting as a security guard in a 1993 botched grocery store robbery. Brumfield's lawyer eventually raised an Atkins claim regarding his mental disability shortly after that case was decided by the High Court.

At his original sentencing trial in state court back in 1995, Brumfield's mental disability was not raised because the sentencing trial was conducted in the pre-Atkins era. Accordingly, the state court sentenced Brumfield to death without consideration of his alleged mental disability.

Following the imposition of his pre-Atkins death sentence, the matter was brought into the federal courts via Brumfield's habeas petition. In the federal courts, Brumfield asserted that Atkins and the 8th Amendment require a separate hearing on the issue of mental disability.

The lower federal court ordered such an evidentiary hearing which featured testimony from a psychologist, a social worker and other experts that detailed his abused childhood and his alleged mental deficiencies. The federal court made a finding based on this evidence that Brumfield was mentally disabled but this ruling was reversed by the 5th Circuit Court of Appeals.

Now, the SCOTUS will address this issue tomorrow morning. So stay tuned to find out what our High Court has to say about this important constitutional issue.

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