Based on the consensus that imposing the death penalty on offenders with mental retardation is wrong, and recognizing that their disabilities render them less morally culpable, the Supreme Court recently concluded that executing such people violates the Constitution (Atkins v. Virginia, 2002). Although correct, the decision did not go far enough. Acknowledging that the only “serious disagreement” is in determining which offenders are “in fact retarded,” the majority, surprisingly, failed to adopt specific criteria to finally resolve the issue.

The Supreme Court Decision

Daryl Renard Atkins was convicted of abduction, armed robbery, and capital murder. At the penalty phase, the prosecutor introduced aggravating circumstances, and the jury sentenced Atkins to death, despite expert testimony that he had an IQ of 59 and had mental retardation (Atkins v. Virginia, 2002). However, because of the “dramatic shift in the state legislative landscape,” the Court agreed to review its 1989 ruling in Penry v. Lynaugh (1989) permitting such executions. In Atkins v. Virginia, the Justices gave two reasons for reversing their earlier position.

First, due to problems with “reasoning, judgment, and control of their impulses,” there is “serious question” whether either justification advanced for the death penalty—“retribution and deterrence of capital crimes by prospective offenders” (Atkins v. Virginia, 2002)—applies to persons with mental retardation: (a) With respect to retribution, the severity of the punishment depends on the offender's level of culpability. Therefore, these individuals' disabilities cause the death penalty to be, rather than their “just deserts,” excessive (Atkins v. Virginia, 2002). Moreover, they may not be able to provide meaningful assistance to their lawyers and are often poor witnesses. Additionally, their demeanor might “create an unwarranted impression of lack of remorse” (Atkins v. Virginia, 2002). (b) With respect to deterrence, the extreme nature of the sanction is supposed to inhibit criminals from particularly heinous conduct. Even assuming this is true, it only works when murder follows “premeditation and deliberation.” However, “the same cognitive and behavioral impairments that make these defendants less morally culpable. . . also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information” (Atkins v. Virginia, 2002).

Second, public reaction to execution of individuals with mental retardation after 1986 spurred a flurry of legislation. Since that time, all 18 states that have passed such statutes, in addition to the Congress, have prohibited sentencing people with mental retardation to death. The Justices explained that these laws demonstrate a national consensus, and their “independent evaluation of the issue” revealed no reason to disagree. Consequently, “such punishment is excessive, and . . . the Constitution ‘places a substantive restriction on the State's power to take the life' of a mentally retarded offender” (Atkins v. Virginia, 2002).

Unfortunately, although recognizing that clinical definitions require “subaverage intellectual functioning” in addition to “significant limitations in adaptive skills such as communication, self-care, and self-direction” that manifest before 18 (Atkins v. Virginia, 2002), the Court failed to adopt a specific standard. Instead, the majority left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction” (Atkins v. Virginia, 2002, quoting Ford v. Wainwright, 1986).

Death Penalty

Despite the fact that most Americans favor the death penalty, one recurring constitutional concern is that it is disproportionately applied. Nevertheless, the Supreme Court has consistently resisted prohibiting all executions, leaving most decisions, including the ultimate question of whether to use the death penalty at all, to the states. Some parameters, however, have been established. For example, in Thompson v. Oklahoma (1988), the Justices declared it unconstitutional to execute people who committed a crime before age 16. In doing so, they created a bright line test. However, their refusal in Atkins v. Virginia (2002) to do the same, and adopt specific criteria for defining mental retardation, means that people with identical mental limitations may be treated differently and, thus, unfairly, depending on the location where their crimes were committed.

Uniform Standard

This type of inequality forms the basis of many objections to the death penalty. It is particularly unacceptable in the case of people with mental retardation. Thus, the analogy in Atkins v. Virginia (2002) to Ford v. Wainwright (1986)—which decided that, although the eighth amendment prohibits sentencing the insane to die, states can define “insanity”—is wrongheaded. Because insanity is a legal construct (Hall, 2002), it is arguably appropriate for state legislative action. However, it is clearly distinguishable from mental retardation, which is a recognized biopsychosocial condition more suitable to description by skilled mental health professionals. Of course, such practitioners have already established specific criteria for diagnosis. Indeed, instead of simply referring to the American Association on Mental Retardation—AAMR (Luckasson et al., 1992) and American Psychiatric Association—APA (2000) definitions, the Court should have selected one as the uniform standard in death penalty cases.

Conclusion

The same people will meet the criteria for mental retardation under both the AAMR and APA guidelines because of the fundamental agreement in the definitions. Because the Court failed to do so, it is now up to the individual state legislatures to adopt one of these standards for capital cases to avoid the risk of disparate treatment.

References

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Author notes

Authors:Phyllis Coleman, JD, Professor of Law, Nova Southeastern University, Leo Goodwin Sr. Hall, 3305 College Ave., Ft. Lauderdale, FL 33314-7721 ( colemanp@nsu.law.nova.edu). Ronald A. Shellow, MD, Voluntary Professor of Psychiatry, University of Miami School of Medicine, 2980 McFarlane Road, Miami, FL 33133 ( 73230.3503@compuserve.com)