Does the Eighth Amendment Prohibition on Cruel and Unusual Punishment Forbid the Execution of the Mentally Retarded?

U.S. Supreme Court to Revisit this Issue in 2002

The Supreme Court recently agreed to decide whether it is unconstitutional to execute mentally retarded individuals convicted of capital crimes. The case involves a man with an IQ of 59, Daryl Atkins, who was convicted of a 1996 murder. After his conviction was affirmed on appeal in 1999, a second jury found it probable that Atkins would commit future violent acts that would constitute a continuing serious threat to society, and that his commission of the 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." He was sentenced to death. The Supreme Court of Virginia upheld Atkins' death sentence. Atkins v. Commonwealth of Virginia, 260 Va. 375 (2000).

The Virginia Supreme Court was called upon to address whether the sentence of death, in Atkins' case, is excessive or disproportionate to the penalty imposed in similar cases. Although premeditated murder may warrant a death sentence in Virginia, the State has not sought the death penalty on a defendant with an IQ score as low as 59. Atkins contends that he cannot be sentenced to death due to his mental retardation. The Commonwealth argued that Atkins' mental retardation was never clearly established by his experts, and even if it had been, the execution of a mentally retarded defendant was not in contravention with the "practices that were condemned when the Bill of Rights was adopted or the evolving standards of decency."

The Virginia Supreme Court considered Virginia precedent and U.S. Supreme Court case law in reaching its decision. It found that the U.S. Supreme Court refused to rule out the imposition of the death penalty on a defendant who had the reasoning capacity of a seven-year-old child, based solely on the concept of mental age or the diagnosis of mental retardation. It found that imposing the death penalty in such a case does not violate the Eighth Amendment prohibition against cruel and unusual punishment if the specific defendant shows other signs of comprehension with respect to the particular crime; such as the "cognitive, volitional, and moral capacity to act with the degree of culpability associated with the death penalty." Penry v. Lynaugh, 492 U.S. 302 (1989). The Court also noted that the abilities and experiences of the mentally retarded vary significantly and that such factors are to be considered by the factfinder.

The only requirement, according to the U.S. Supreme Court, is that the "sentencing body" be afforded the opportunity to "consider mental retardation as a mitigating circumstance" in deciding whether death is the appropriate sentence for the particular defendant. Similarly, in Virginia, mental retardation of a defendant may be considered a mitigating factor of murder. Virginia emphasizes the importance of the jury's role as factfinder in these cases.

The U.S. Supreme Court has now granted certiorari on the following issue: "Whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment?" Atkins v. Virginia, 2001 U.S. LEXIS 5463.

Is Atkins mentally retarded, according to the Virginia Supreme Court?

In reviewing the sentence on proportionality grounds, the Virginia Supreme Court looked at the same evidence reviewed by the jury as to Atkins' mental condition.
The court found that much of the expert testimony attesting to Atkins' retardation was contradictory and inconclusive at best. In fact, they found that Atkins' expert was more helpful to the State's theory of Atkins' mental capacity than to his own. While Atkins' forensic clinical psychologist asserted that Atkins suffered mild mental retardation, he also admitted that Atkins has the capacity, albeit diminished, to appreciate the criminal and immoral nature of his act. He also indicated that Atkins' calculated score might not be completely accurate due to certain conditions present at the time of testing, such as Atkins' suffering mild depression. This expert also testified to the fact that Atkins may be better diagnosed as suffering antisocial personality disorder.

The Commonwealth's forensic clinical psychologist found that Atkins is of at least average intelligence. His findings were based in part on the same test used by Atkins' expert, but also incorporated other intelligence indicators. According to the State's expert, Atkins has a rather sophisticated vocabulary; has an average knowledge of current events; and has good memory retention and recall capabilities. He also found that "Atkins was able to appreciate the criminality of his conduct and to conform his behavior to the requirements of the law, and that Atkins satisfies most of the criteria for the diagnosis of an antisocial personality disorder."

Both experts agreed that a diagnosis of mental retardation involves a consideration of factors other than one's IQ score. The doctors said that adaptive functioning, or the ability to function independently at a level comparable to other persons of the same age, is also a relevant attribute to consider. One major problem for the defense, according to the Virginia Supreme Court, was that Atkins' expert could not or did not identify an area of significant dysfunction in his assessment of the defendant's adaptive functioning. Although he did name Atkins' "academic failure" as a possible example of this, the Court found that this single limitation falls short of the DSM-IV definition of deficient adaptive functioning, which includes significant limitations in at least two the following areas: "communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety." The Court found that much of the expert testimony indicated average levels of functioning in most of these areas.