An Advocacy Analysis: Atkins v.

Virginia by Carl Barkemeyer April 2005

I. Introduction In the 2002 case of Atkins v. Virginia, the United States Supreme Court held that the execution of mentally retarded offenders is a violation of the Cruel and Unusual Punishment clause of the Eighth Amendment of the United States Constitution.1 This decision overruled thirteen years of precedent established by Penry v. Lynaugh. 2 American jurisprudence has established that the Eighth Amendment is a consensus-based doctrine. Therefore, a national consensus is a prerequisite to change an interpretation of the Eighth Amendment. However, the Atkins Court arguably disregarded this jurisprudence, and without the necessary national consensus, developed a rule against the execution of mentally retarded offenders. The issue in Atkins is whether there exists a national consensus against the execution of mentally retarded offenders. More precisely, the Atkins Court is faced with the difficult question: What determines the existence of a national consensus? The attorneys involved present many conflicting arguments as to what factors to consider in evaluating the existence of a national consensus. For instance, they argue about which states should be included as having enacted legislation against the execution of mentally retarded offenders. They argue about the method of calculating the number of these states. The attorneys disagree about the application of jurisprudence. Also, the
1 2

Atkins v. Virginia, 122 S.Ct. 2242, 2252 (2002). Penry v. Lynaugh, 492 U.S. 302 (1989).

attorneys present arguments to the Court involving what other evidence, if any, should be considered in determining the existence of a national consensus. The underlying issue of what is a national consensus is the focus of this writing. I will analyze and compare the various arguments used by the advocating attorneys in their attempts to persuade the United States Supreme Court.

II. Background A. Facts On the afternoon of August 16, 1996, Daryl R. Atkins ("Atkins") and his friend William A. Jones ("Jones") were drinking and smoking weed at the home of Atkins and his father. Between 10:30 and 11:00 that evening, Atkins and Jones walked to the convenience store to buy beer. Atkins told Jones that he did not have enough money so he was going to panhandle. He had a handgun borrowed from a friend tucked into his pants. Atkins approached several people and collected money from some of them, while Jones waited. Eric Michael Nesbitt ("Nesbitt") arrived at the store in his truck at approximately 11:30 p.m. After Nesbitt returned to his truck and prepared to leave the parking lot, Atkins whistled at him, and Nesbitt stopped his truck. Atkins went to the passenger's side of the truck and Jones went to the driver's side. Atkins pointed the handgun at Nesbitt and ordered Nesbitt to move over and let Jones drive. As Jones drove the truck from the convenience store, Atkins took $60 from Nesbitt's wallet and directed Jones to drive to a branch of Crestar Bank where Atkins forced Nesbitt to withdraw $200 using the bankcard from the bank's drive-through automatic teller machine. Atkins kept

the handgun pointed at Nesbitt the entire time. Atkins directed Jones to drive to a secluded area of York County off the Lee Hall exit of Interstate 64. Atkins exited the truck and ordered Nesbitt to exit as well. Nesbitt stepped out of the vehicle and probably took two steps when Atkins shot and killed him. Nesbitt's autopsy revealed that Nesbitt had sustained eight separate gunshot wounds in the thorax, chest, abdomen, arms and legs. Atkins called Dr. Evan Stuart Nelson, a forensic psychologist, to testify that Atkins had a full scale IQ of fifty-nine with a verbal IQ of sixty-four and a performance IQ of sixty. Dr. Nelson determined from these scores that Atkins fell in the range of mildly mentally retarded. The Commonwealth called as a witness a forensic clinical psychologist, Dr. Stanton E. Samenow, who, based on two interviews with Atkins, disagreed with Dr. Nelson's conclusion that he was mildly mentally retarded. Dr. Samenow determined that Atkins was of at least average intelligence, basing his conclusion on Atkins's vocabulary, knowledge of current events, and other factors from the Wechsler Memory Scale, Wechsler Adult Intelligence Scale and Thematic Apperception Test.

B. Procedural History The jury convicted Atkins of capital murder. During the penalty phase of the trial, the jury found that Atkins represented a future danger to society and that the murder of Nesbitt had been outrageously or wantonly vile. Based upon its finding of these aggravating factors, the jury returned a verdict imposing a sentence of death on Atkins for the murder of Nesbitt.

On appeal, the Supreme Court of Virginia affirmed Atkins's conviction, but remanded the case to the circuit court for a new penalty proceeding due to an improper jury sentencing verdict form. At resentencing, the jury heard evidence regarding Atkins's mental retardation. Additionally, the jury heard testimony about Atkins's sixteen prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming; they were given a graphic depiction of Atkins's violent tendencies, such as hitting one victim over the head with a beer bottle, slapping a gun across another victim's face, clubbing her in the head with the gun, knocking her to the ground, helping her up, and then shooting her in the stomach. The jury found that there was a probability that Atkins would commit acts of violence in the future that would constitute a continuing serious threat to society, and that his conduct in committing the capital murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder." The jury fixed Atkins's punishment at death. At a separate sentencing hearing, the circuit court imposed the death penalty in accordance with the jury verdict. The Supreme Court of Virginia affirmed the lower court's holding that execution of an individual whose IQ is alleged to be fifty-nine and is thus "mentally retarded" is not excessive or disproportionate. The Virginia Supreme Court held, in light of the ruling in Penry v. Lynaugh, that a capital defendant's mental retardation does not, of itself, make execution unconstitutional under the Eighth Amendment's prohibition of cruel and unusual punishment. The two dissenting justices stated that although the imposition of the death penalty upon mentally retarded criminal defendants does not violate the Eighth Amendment to the United States Constitution, the

issue on appeal was whether the imposition of the sentence of death is excessive or disproportionate to the penalty imposed in similar crimes, considering both the crime and the defendant. The dissenters answered in the affirmative. Nevertheless, the majority concluded otherwise. Atkins appealed the Virginia Supreme Court's decision to the United States Supreme Court. The Supreme Court granted certiorari to address a single question: Whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment? The Supreme Court answered this question in the affirmative, ruling the execution of the mentally retarded is cruel and unusual punishment, in violation of the Cruel and Unusual Clause of the Eighth Amendment to the United States Constitution. Construing and applying the Eighth Amendment in the light of "evolving standards of decency," the Court concluded that such punishment was excessive and that the Constitution "places a substantive restriction on the State's power to take the life of a mentally retarded offender."3

II.

Advocacy A. Core Image The primary focus of the attorneys during the oral argument to the United States

Supreme Court was the issue of whether or not a national consensus exists which is sufficient to merit constitutional enactment. 4 The attorney for Atkins argued there is a present national societal consensus that the execution of mentally retarded offenders is

3 4

Atkins, 122 S.Ct. at 2252. See generally Atkins v. Virginia, 2002 WL 341765 (2002) (Oral Argument) [hereinafter Oral Argument].

unjust and violates the Eighth Amendment of the United States Constitution.5 He claimed that the national consensus is evidenced by a totality of the evidence test which encompasses all evidence, including state legislation.6 Therefore, the United States Supreme Court should interpret the Eighth Amendment as forbidding the execution of the mentally retarded because it is cruel and unusual punishment.7 Conversely, the attorney for the State of Virginia argued there is insufficient evidence of a national consensus against the execution of mentally retarded offenders.8 She argued that objective evidence (state legislation) should be examined in determining the existence of a national consensus.9 She claimed the evidence is insufficient to support a national consensus because only a minority of the states have enacted legislation prohibiting execution of mentally retarded offenders. 10 The existence and nature of state legislation concerning the death penalty is the most important focus of the attorneys in arguing the existence of a national consensus.11 Neither attorney focused significantly on the issue of a national consensus in their briefs. However, the primary issue discussed during oral argument was whether or not there was a national consensus against executing mentally retarded offenders. The Criminal Justice Legal Foundation submitted an amicus brief in support of Virginia. The Foundation replied to the present issue by commenting that there is lack of national consensus to validate an exemption of the mentally retarded from the death
5

Atkins v. Virginia, 2001 WL 1663817 at *21-22 (2001) (Petitioners Brief) [hereinafter Petitioners Brief]. Interestingly, Atkins attorney focused on the national consensus issue only minimally in his brief. His brief focused primarily on developing the argument that Atkins shouldnt be executed due to lack of culpability as a result of being mentally retarded. 6 Oral Argument at *5. 7 Petitioners Brief at *21-22. 8 Oral Argument at *51. 9 Id. 10 Id. 11 See generally Oral Argument.

penalty.12 In its amicus brief, the Foundation stated that accepting Atkins claim would cause considerable disruption to state capital punishment systems. 13 For instance, because the categorical exemption would apply retroactively, a new trial would be necessary to determine whether the convicted offender is now exempted from his death sentence.14 Additionally, the Foundation was concerned that death penalty procedures will become more complicated.15 Also, courts and legislatures will have to craft a definition of mental retardation separate from the legal definition of insanity. 16 Since the issue of retardation will now be divorced from the defendants overall culpability, a separate hearing will be necessary to minimize juror confusion.17 Other new procedures will accompany these new standards and hearings, thus complicating an already complicated body of law.18

B. Law and Precedent The Eighth Amendment states: "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."19 The Eighth Amendment categorically prohibits the infliction of cruel and unusual punishments. In Weems v. United States, the Court recognized that the words of the Eighth Amendment are imprecise, and that their scope is not static.20 As a result, the Eighth Amendment is required to "draw its meaning from the evolving standards of decency that
12

Atkins v. Virginia, 2002 WL 126361 at *13 (2002) (Brief Amicus Curiae of the Criminal Justice Legal Foundation in Support of Respondent) [hereinafter CJLF Brief]. 13 CJLF Brief at *17. 14 Id. 15 Id. at *18. 16 Id. 17 Id. at *19. 18 Id. 19 U.S. Const. Amend. VIII. 20 Weems v. United States, 217 U.S. 349, 400 (1910).

mark the progress of a maturing society." 21 To discern what constitutes "evolving standards," the Court looks to objective evidence of how the American society views a particular punishment at the time in question. The clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures because it will rarely if ever be the case that the Supreme Court justices will have a better sense of the evolution in views of the American people than do their elected representatives.22 In 1989, the Supreme Court was presented with the issue of the constitutionality of executing the mentally retarded in the case of Penry v. Lynaugh. Penry is important because the Atkins Court overruled Penry. Like Atkins, Penry was mentally retarded, having an IQ of 54, but a jury found Penry competent to stand trial. The jury rejected Penry's insanity defense and found him guilty of capital murder. The Penry Court considered the substantive matter of whether the mentally retarded should be exempted from the death penalty. Engaging in a proportionality review by attempting to ascertain the evolving standards of decency, the Penry Court looked to legislation and sentencing juries for guidance. Also, the Court looked to public opinion polls. However, the Court was unconvinced by the public opinion surveys presented by Penry. The Court concluded that such public opinion surveys were insufficient evidence of an emerging national consensus. Consequently, the Court focused primarily on the legislative evidence. At the time, only one state banned executing the mentally retarded. Therefore, the Court could not find sufficient evidence of a national consensus.

21 22

Id. Thompson v. Oklahoma, 487 U.S. 815, 865 (1988).

The Penry Court stated that mental retardation is a factor that may serve to lessen a defendant's culpability for a capital offense. The Penry Court determined that, in order to ensure reliability in the determination that death is the appropriate punishment in a specific case, the jury must be able to consider the mental retardation of the defendant as mitigating evidence.

C. Law Advocacy Penry Decision The attorney for Atkins stated in his brief that since Penry, experience has demonstrated that several factors heighten the risk that the death penalty may be imposed on persons with mental retardation despite Penry's assurance that they can plead their disability in mitigation.23 These factors include (a) the breakdown in procedural protections that results from a defendant's possession of the cognitive and behavioral impairments characteristic of mental retardation; and (b) jurors' lack of experience with, and faulty stereotypes regarding, persons with mental retardation, coupled with the potential for prosecutors to exploit such ignorance or stereotypes. 24 The attorney for Atkins made this statement to demonstrate that using the fact that the offender is mentally retarded only as a mitigating factor is useless. Therefore, a ban on the execution of mentally retarded offenders is necessary to protect them from the death penalty when they are not deserving of it due to their lack of culpability. 25

23 24

Petitioners Brief at *34. Id. 25 Id.

In her brief, the attorney for Virginia replied, stating that Atkins misunderstands the critical holding of Penry. 26 She stated that Atkins misses the point when he argues that the "procedural protections" afforded to all criminal defendants somehow "breakdown" when the defendant is mentally retarded. 27 Atkins' argument fails to acknowledge the fact that capital defendants who claim to be mentally retarded are protected by a criminal justice system offering a multitude of opportunities to raise the defense.28 To illustrate, a mentally retarded capital defendant must be competent to stand trial.29 At the guilt phase of trial, the defendant may present evidence of mental disease or defect to support a defense of not guilty by means of insanity at the time of the offense.30 The Commonwealth must prove beyond a reasonable doubt that a mentally retarded capital defendant acted with premeditation and deliberation.31 At sentencing, the Commonwealth must prove beyond a reasonable doubt either that the mentally retarded capital murderer will be a danger in the future or that his crime was vile.32 Additionally, a mentally retarded capital murderer must be sane at the time of his execution, i.e., he must know that he is sentenced to death and he must understand why he is sentenced to death.33 The Court only briefly entertains this issue during oral argument when the attorney for Atkins answers the question by the Court, what is behind the judgment of

26

Atkins v. Virginia, 2002 WL 63726 at *28 (2002) (Respondents Brief) [hereinafter Respondents Brief]. 27 Respondents Brief at *28. 28 Id. at *29. 29 Id. 30 Id. 31 Id. 32 Id. 33 Id.

10

the emerging states.34 However, I think Atkins attorneys argument was persuasive. In the Courts decision, Justice Stevens stated that mentally retarded defendants have less ability to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors.35 Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.36 As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 37 Mentally retarded defendants in the aggregate face a special risk of wrongful execution.38 The holding of the Court demonstrates that it considered other factors besides the national consensus issue when determining that the execution of the mentally retarded offends evolving standards of decency. Rather than strictly arguing the national consensus issue, Atkins attorney broke down Penry and argued the peripheral and underlying issue of why mentally retarded offenders should not be executed. He was successful in convincing the Court that, even if the national consensus does not directly reflect it, the mentally retarded should be a protected class.

D. Fact Advocacy National Consensus When the Court first considered the constitutionality of executing the mentally retarded in the 1989 Penry decision, it concluded that, as of that time, there was
34 35

Oral Argument at *21. Atkins, 122 S.Ct. at 2252. 36 Id. 37 Id. 38 Id.

11

insufficient evidence of a national consensus against the execution of persons with mental retardation to justify a constitutional prohibition.39 The attorney for Atkins stated in his brief that much has occurred since the Court decided Penry.40 The great weight of evidence now demonstrates that American society overwhelmingly opposes the execution of persons with mental retardation.41 At the time of Penry, only two states had enacted legislation outlawing the imposition of the death penalty on defendants with mental retardation.42 By 2001, eighteen states had enacted legislation to prevent the execution of mentally retarded offenders.43 The attorney for Atkins stated when these eighteen states are added to the twelve states that do not have the death penalty, it is evident that the statutes in only a minority of states now allow the possibility of executing an individual with mental retardation.44 Furthermore, he claimed that these enactments by legislatures in state after state accurately reflect the consensus among the American people.45 That consensus is also revealed in public opinion polls and in the positions taken by relevant organizations in both the mental retardation and legal fields.46 Such nonlegislative evidence of the consensus is even more abundant now than it was in 1989.47

39 40

Petitioners Brief at *40. Petitioners Brief at *40. 41 Id. 42 Id. at *41. Georgia and Maryland had statutes prohibiting the execution of mentally retarded offenders. 43 Id. Note: Twelve states have no form of a death penalty. Thirty-eight states have a death penalty. Of those thirty-eight states, eighteen have enacted legislation prohibiting the execution of the mentally retarded. Twenty of those thirty-eight states have enacted no form of such prohibiting statute. 44 Id. at *42. 45 Id. at *44. 46 Id. 47 Id.

12

Alternatively, the attorney for Virginia stipulated in her brief that no national consensus exists against the execution of capital defendants who are mentally retarded. 48 Twenty states continue to include mentally retarded persons in the death-eligible class.49 Indeed, of the thirty-eight death penalty states, only eighteen - less than a majority - have some sort of statute prohibiting the execution of mentally retarded capital offenders. 50 She claimed that according to jurisprudence, this number does not establish the degree of national consensus the Court has previously thought sufficient to label a particular punishment cruel and unusual.51 She made a strong argument here because clearly the numbers add up to a lack of consensus. Justice Scalia stated in the oral argument that he could see the argument that theres a consensus on the other side since the other side seems to be in the majority. 52 The attorney for Virginia further rebutted Atkins argument. She pointed out that of the eighteen states which have enacted laws against the imposition of capital punishment on defendants with mental retardation, twelve still allow for the imposition of capital punishment on some mentally retarded capital defendants because the statutes are applied only prospectively. 53 She stated that these states applying the statutes only prospectively cannot be used as evidence of a national consensus because those states obviously still allow executions of the mentally retarded.54 This is a strong argument because it is apparent that those twelve states do not view the execution of the mentally retarded as morally repugnant enough to ban the execution altogether. Applying the
48 49

Respondents Brief at *34. Id. at *35. 50 Respondents Brief at *35. 51 Id. (referring to Stanford v. Kentucky, 492 U.S. 361, 370-371 (1989)). 52 Oral Argument at *25. 53 Respondents Brief at *35-36. 54 Id. at *38.

13

statute prospectively provides very little evidence of public sentiment, much less a national consensus, on the issue. Additionally, she refuted Atkins numeric calculation by arguing that New York should not be included as one of the eighteen states because New York still allows for execution of mentally retarded offenders only if the killing occurred in a correctional facility.55 Thus, similar to the states which enacted prospective-only bans on executions of mentally retarded offenders, New York demonstrates a lack of consensus for a total ban on executions of mentally retarded offenders.56 The attorney for Virginia further rebutted Atkins national consensus argument by stating Atkins' attempt to create a national consensus by adding the twelve States which presently do not authorize any capital punishment to the pool of death penalty States which prohibit execution of the mentally retarded must be rejected.57 The issue before the Court is not whether there is a national consensus for or against capital punishment; rather, it is whether mentally retarded capital defendants should be exempt from capital punishment as a matter of constitutional law.58 In the supporting amicus brief, the Foundation stated that the Stanford Court specifically rejected the relevance of counting the anti-death penalty states in any consensus concerning the administration of capital punishment.59 This completely defeats Atkins assertion that a majority of the states prohibit the execution of mentally retarded offenders.60

55 56

Respondents Brief at *38. Id. at *39. 57 Id. 58 Id. 59 CJLF Brief at *16. 60 Petitioners Brief at *42.

14

She makes these arguments throughout the oral argument. Her closing seems to be very strong as she summarizes the above arguments. She added that of the 18 States that have enacted prohibition statutes, the longest one has been on the books for 13 years.61 Some of them have been on the books for less than a year.62 On average, they've been on the books for 5 years.63 She referred to the states as laboratories for novel social experimentation.64 She requested that the Court not call a halt to an experiment that has been ongoing for an average of 5 years, especially when that halt could be irreversible.65 The attorney for Atkins recognized the weaknesses in his national consensus argument after Virginias attorney filed her Respondents Brief in which the above arguments were made. In his Reply Brief, the attorney for Atkins responded to the assertion by Virginias attorney that there is no national consensus by stating that the Court has never suggested that determining national sentiment about an Eighth Amendment issue is a matter of counting noses among the state legislatures.66 He stated that the central misunderstanding in Virginias argument is mistaking the statutes for the consensus they reveal.67 The role of the statutes is evidentiary. 68 Their purpose is to assure the Court, which has been understandably wary of relying on indicia of public opinion that may prove illusory or ephemeral, that this sentiment is true

61 62

Oral Argument at *50. Id. 63 Id. 64 Oral Argument at *52. 65 Id. at *53. 66 Atkins v. Virginia, 2002 WL 225883 at *5 (2002) (Reply Brief for Petitioner) [hereinafter Reply Brief]. He is referring to CLJF Brief at *14. 67 Id. at *6. 68 Id.

15

and reliable.69 He claimed that the cases reflect something more akin to a "totality of the evidence" test, with statutory enactments as an indispensable component of any claim of a settled national agreement.70 In this case, the totality of the available evidence reveals a clear and unmistakable consensus of the American people opposing the execution of individuals with mental retardation.71 During oral argument, he told the Court that a totality of evidence test should be implemented here.72 He seemed to realize that he could not persuade the Court based on a mere calculation of the number of states that have enacted prohibiting legislation. Rather, he wanted the Court to consider all the evidence involved. He wanted the Court to view the enacted legislation as positive proof of an existing national consensus against the execution of the mentally retarded. He did not want to contrast states that enacted legislation against those that have not enacted legislation. This proved to be a successful strategy because the Courts decision involved examining all the relevant evidence, as opposed to examining a numeric evaluation of state legislation. For example, Atkins attorney presented amici briefs from various religious and professional as evidence of a national consensus against executing mentally retarded offenders. He presented an amici brief by the American Pscychological Association, which has adopted the position opposing the execution of mentally retarded offenders.73 Also, he referred to an amici brief which contended that numerous international bodies

69 70

Id. Id. 71 Id. 72 Oral Argument at *5. 73 Brief of American Psychological Association, American Psychiatric Association, and American Academy of Psychiatry and the Law as Amici Curiae in Support of Petitioner (Jun. 08, 2001).

16

have passed resolutions against the execution of individuals with mental retardation. 74 In his Petitioners Brief, Atkins attorney stated that on the world-wide stage, the few jurisdictions in the United States that continue to execute mentally retarded offenders now stand all but alone.75 He used this brief as evidence of an international consensus

against the execution of mentally retarded offenders. Virginias attorney replied to the use of these amici briefs as evidence of a national consensus by citing jurisprudence in which Supreme Court has previously held that the Court expressly declined to rest constitutional law upon such uncertain foundations.76 She argued that the purported standards of other countries are not relevant to the issue of a national consensus in the United States. 77

III. Decision A. Holding The issue decided in this case was whether the execution of mentally retarded criminals is cruel and unusual punishment prohibited by the Eighth Amendment of the United States Constitution.78 Thirteen years after Penry was decided, the Atkins Court overruled Penry, concluding that the issue of mental retardation is not relevant merely as a mitigating factor; rather, it is determinative as to whether or not the offender will be eligible for the death penalty.79

74

Id. See Amicus Curiae Brief of the European Union in McCarver v. North Carolina, No. 00-8727 (Nov. 19, 2001). 75 Petitioners Brief at *43. 76 Respondents Brief at *42 (quoting Stanford, 492 U.S. 377). 77 Id. 78 Atkins, 122 S.Ct. at 2244. 79 See generally Id.

17

The Court held there is no reason to disagree with the judgment of the legislatures that have recently addressed the matter and concluded that death is not a suitable punishment for a mentally retarded criminal.80 In construing and applying the Eighth Amendment in the light of "evolving standards of decency," the Court concluded that such punishment is excessive and that the Constitution "places a substantive restriction on the State's power to take the life" of a mentally retarded offender. 81 The Court stated that a claim that a punishment is excessive is judged by the standards that currently prevail.82 These standards should be informed by objective factors.83 The Court held that the clearest and most reliable objective evidence of contemporary values is state legislation.84 It acknowledged that although objective evidence is important, it is not wholly determinative on the issue.85 Thus, in cases involving a consensus, the Courts own judgment is considered.86 This is done by asking whether there is reason to disagree with the judgment reached by the state legislatures. 87 Much has changed in the thirteen years between Penry and Atkins. The Court pointed out that at the time of Penry, only two states prohibited executing mentally retarded offenders and fourteen states completely rejected the death penalty. At the time of Atkins, eighteen states prohibited executing mentally retarded offenders and twelve

80 81

Id. at 2252. Id. 82 Atkins, 122 S.Ct. at 2247. 83 Id. 84 Id. 85 Id. The Court cited Coker v. Georgia, 433 U.S. 584 (1977) as its authority in using its own judgment on Eighth Amendment issues. 86 Id. 87 Id.

18

states outright rejected the death penalty. 88 The Court stated that it is not so much the number of these states that is significant, but the consistency of the direction of change. 89 Additionally, the Court noted that of the states that do allow execution of mentally retarded offenders, executions are rare.90 Other factors the Court considered were various amici briefs and public opinion polls. The Court stated that although these factors are not dispositive, their consistency with the legislative evidence lends further support of a national consensus. 91 The Court further held that it is not persuaded by the assertion that the execution of mentally retarded offenders will measurably advance the deterrent or the retributive purpose of the death penalty. 92 The Court stated that the reduced capacity of mentally retarded offenders provides a justification for the categorical rule making such offenders ineligible for the death penalty.93 The Court concluded that mentally retarded defendants have less ability to make a persuasive showing of mitigation in the face of prosecutorial evidence.94 Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.95 As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found

88 89

Id. at 2248. Id. 90 Id. at 2249. 91 Atkins, 122 S.Ct. at 2249. 92 Id. at 2252. 93 Id. at 2251. 94 Id. at 2252. 95 Id.

19

by the jury.96 Mentally retarded defendants in the aggregate face a special risk of wrongful execution.97

B. Decision Analysis The majority of the Court made clear in its holding that it did not consider as the only factor whether or not there is a national consensus, evidenced by state legislation, against executing mentally retarded offenders. Rather, the majority used its own judgment in which it took into account the consistency of state legislation, amici briefs of religious and professional organizations, public opinion polls, and personal culpability of the defendant. The Court cited precedent as authority for the ability to use its own judgment.98 In the footnotes of the decision, the majority expressed that additional evidence makes it clear that the legislative judgment reflects a much broader social and professional consensus.99 The majority then refers to the opposition of execution of mentally retarded offenders by the American Psychological Association and other various religious groups.100 The Court considers the views of these groups as relevant evidence in the determination of a national consensus. The majority also stated, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly
96 97

Id. Id. 98 Atkins, 122 S.Ct. at 2247. The Court cited Coker v. Georgia, 433 U.S.584, 597 (1977). 99 Id. at 2249, footnote 21. 100 Id.

20

disapproved.101 The majority accepted Atkins attorneys argument that the international consensus is evidence of a national consensus. The majority further stated that although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to the existence of a national consensus. 102 The dissent did not agree with the majoritys use of other evidence. In citing Penry, the dissent wrote that legislation is the clearest and most reliable objective evidence of contemporary values. 103 The dissent stated that in a democratic society, legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.104 Furthermore, the viewpoints of other countries are irrelevant as to the existence of a national consensus.105 The majority seemed to follow the reasoning presented by the attorney for Atkins. The majority found a way around examining only a numeric calculation of states in deciding the issue of a national consensus. In effect, the majority used Atkins attorneys totality of the evidence test to conclude the existence of a national consensus. The majority did not give much weight to the fact that more states have not enacted legislation against executions of mentally retarded offenders than states that have enacted such legislation. Conversely, the majority considered the eighteen states that have enacted such legislation as positive proof or a trend. The majority then added other incidental evidence to the mix until it decided that Atkins had met his burden of proof. The majority basically ignored relevant evidence in its determination of a national consensus. It is relevant that thirty-two states have not enacted legislation against the
101 102

Id. Id. 103 Atkins, 122 S.Ct. at 2253. 104 Id. (dissent cited Gregg v. Georgia, 428 U.S. 153, 175-176 (1976)). 105 Id. at 2254.

21

execution of mentally retarded offenders. However, the majority did not weigh that evidence against the evidence purporting the existence of a national consensus. In a sense, if evidence weighed against finding a national consensus, it was not considered relevant. The controversy in the Courts decision is based on the premises used to reach the conclusion. Virginias attorney and the dissent argued that the premises to base the conclusion should have been state legislation. They looked to Weems, Penry, and Stanford as proper precedent for this postulation. Had the Court done this, a national consensus would not have been found to exist. However, this was not the case. It seems as though the six concurring justices simply found a way to prohibit the execution of mentally retarded offenders. The dissent argued that it is up to the citizenry, through legislation, to decide Eighth Amendment matters, not the judiciary. But is it a realistic presumption that the nine elected Supreme Court justices are going to have no personal influence over matters presented to their Court? This case demonstrates that it is not.

C. Policy Implications The policy implications of this decision are important. The Court, as a result of the subjective feelings of the majority, has changed constitutional law permanently by invoking a ban on the execution of mentally retarded offenders. This decision cannot be reversed in the future because a national consensus would be necessary to do so. That will never happen because it is impossible for there to be a national consensus based on

22

state legislation allowing the execution of mentally retarded offenders because it is now unconstitutional to enact such legislation. This decision is permanent. However, the majority used language in the decision that could lessen the impact of the decision. The majority stated that it is up to the states to determine their own definition of mental retardation.106 Therefore, states could adopt the common law definition of mental retardation which encompasses only the most severe cases of mental retardation. The mildly retarded offenders would still be subject to the death penalty. This interpretation of the majoritys language would essentially make the ban of execution of mentally retarded offenders ineffectual. Granted, the most severely mentally retarded offenders generally would not get the death penalty because, even if they are found competent enough to stand trial, juries are not likely to find the requisite culpability of severely mentally retarded defendants. Another policy implication of this decision is that now state courts must decide if the defendant is in fact mentally retarded. It is likely that criminal procedures will have to be modified to include a determination hearing of mental retardation as well as other incidental procedures. More importantly, it will be an important fact issue as to the mental retardation of the defendant. Rather than being merely mitigation evidence at sentencing, the issue of mental retardation will be more important as it is conclusive as to whether or not the defendant is eligible to receive the death penalty. The determination of this fact issue is done by physician testimony. The testifying physicians run various tests on the defendant and make their own expert evaluation as to the defendants mental retardation, or lack thereof. With much more on the line than before this decision, the capital murder defendant will be more inclined to
106

Atkins, 122 S.Ct. at 2250.

23

use malingering techniques while being examined by the physician. Depending on the expertise and experience of the examining physician, the defendant may be able to manipulate the physician into diagnosing the defendant as mentally retarded when he is not in fact. Additionally, the accuracy of the instrument or method used in determining the IQ of the defendant may come in to question. The physicians will have to implement an IQ test that will ensure the defendant gave a 100% effort during the testing. Also, the test should be designed to evaluate the defendant on his ability to reason and use judgment, rather than strictly on his intelligent level. Unless physicians properly diagnose capital defendants, the result will be that many deserving non-mentally retarded convicted murderers will escape the death penalty. This is a policy implication that the Court completely ignores throughout oral argument and its decision.

IV. Conclusion The Eighth Amendment prohibits cruel and unusual punishments, the interpretation of which, are determined by evolving standards of decency. The clearest indicator of evolving standards is state legislation. State legislation is the most accurate method available because it is conducted by elected officials representing the American people. Therefore, in determining an interpretation of cruel and unusual punishment, it is proper that the state legislatures come to a consensus. The Atkins v. Virginia decision required the Supreme Court to determine whether or not a national consensus existed against executing mentally retarded offenders. The

24

obvious method would have been to determine if a national consensus existed that represents the evolving standards of decency in the United States. This method was not implemented. On the contrary, the Court ignored this jurisprudential method and substituted it with the Courts own judgment. As a result, the Court found a national consensus where a national consensus does not exist. The advocates supplied the Court with many arguments, precedent, and amici briefs. The more solid of the arguments was by the attorney for Virginia because her argument centered on jurisprudence that required the Court to find whether or not a national consensus existed. She had no reason to believe the Court would abandon jurisprudence and adopt its own judgment as the applicable method. On the other hand, the attorney for Atkins focused his argument away from the number of states that have enacted statutes prohibiting the execution of mentally retarded offenders. He presented to the Court evidence that persuaded the Court and caused the Court to substitute their subjective feelings for jurisprudence. His argument may have seemed weak throughout oral argument, however, it worked. It is presently arguable that there was no national consensus. One could also make the argument that the Court found the existence of a national consensus, but used a different definition of a national consensus than the state legislation definition previously used in jurisprudence. Arguably, when the Court used its own judgment, it took into account various other forms of evidence in determining the overall feeling of the nation on the issue of executing mentally retarded offenders. So, throughout arguments, it was important to the Court to determine what constituted a national consensus before it determined if there was, in fact, a national consensus. The Court concluded that a

25

national consensus may be determined by evaluating all evidence rather than only state legislation.

26