The Demise of the Death Penalty for the Mentally Retarded
On June 20, 2002, the U.S. Supreme Court rendered its opinion in the case of Atkins v. Virginia, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), effectively eliminating the death penalty for mentally retarded defendants. In this historic opinion delivered by Justice Stevens, the Court declared:
Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U.S. 302, 305 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.1
The case of Atkins v. Virginia came about when Daryl Renard Atkins and William Jones abducted Eric Nesbitt and drove him to an automatic teller machine. They made him withdraw cash and then took him to an isolated location where he was shot eight times and killed. Jones entered into a plea agreement with the prosecutor. In exchange for his testimony against Atkins at trial, Jones would receive a life sentence for his involvement in the crimes. The prosecutor could then seek the death penalty against Atkins.
At trial, Jones and Atkins each testified that the other had shot and killed Nesbitt. During the initial police interrogation of both men, Jones had declined to make a statement, while Atkins gave police a statement upon his arrest. At trial, the prosecutor used substantial inconsistencies in Atkin’s statement to damage his credibility. The jury believed Jones and found Atkins guilty of murder.2
In the penalty phase of the trial, the defense offered expert testimony that Atkins had an I.Q. of 59 and was mildly mentally retarded. Regardless, the jury sentenced Atkins to death. The Virginia Supreme Court ordered a second sentencing hearing based on a defect in the verdict form. At the second sentencing hearing, the defense presented the same expert testimony and the prosecution rebutted with an expert who testified that Atkins was not mentally retarded but had an antisocial personality disorder. The prosecution’s expert did not administer an intelligence test to Atkins. Again, the jury sentenced Atkins to death.3
What is Mental Retardation?
The Supreme Court has embraced the clinical definition of mental retardation, which has three parts: first is a subaverage intellectual functioning; second is significant limitations in adaptive skills (e.g., communication, self-care, and self-direction); and third, the symptoms must have manifested before the age of 18 years.4
The American Association of Mental Retardation (AAMR) classifies levels of mental retardation based on I.Q. scores. Mild is 50 to 70; moderate is 35 to 49; severe is 20 to 34; and profound is below 20.5 The average I.Q. score for the population as a whole is 100, with the majority being between 80 and 120. Scores below 75 indicate subaverage intellectual functioning.
The second segment in defining mental retardation involves adaptive skills. Normally, people acquire these skills during childhood; mentally retarded people do not, and the deficits remain with them throughout their adult lives. Experts describe these limitations as follows:
Almost uniformly, individuals with mental retardation have grave difficulties in language and communication. They have problems with attention, memory, intellectual rigidity, and in moral development or moral understanding. They are susceptible to suggestion and readily acquiesce to other adults or authority figures. . . . People with mental retardation have limited knowledge because their impaired intelligence has prevented them from learning very much. They also have grave problems in logic, foresight, planning, strategic thinking, and understanding consequences.6
In the third segment of defining mental retardation, the manifestation of symptoms must occur before the age of 18 years. The causes of retardation come in various forms: heredity, genetic defects, deficient prenatal care, illness or trauma at a young age, exposure to toxic substances, physical abuse, and malnutrition.7 In essence, an intervening occurrence prevents the full development of the person’s adaptive skills.
To determine whether a person is mentally retarded, most experts will interview the person’s family and acquaintances, and review school reports, childhood test records, and any other available evidence of childhood performance. The information is compared to both the results of a recently administered I.Q. test and interviews with the subject to determine consistency.
This uniformly accepted method of determining mental retardation considers all available information to provide an extensive evaluation. In so doing, it guards against the possibility of someone faking the condition.
Mentally Retarded Persons in the Criminal Justice System
In the criminal justice system, a defendant encounters critical junctures, from the initial interrogation to the conclusion of a trial, where he or she must make decisions that affect the final outcome. These critical points are land mines to the mentally retarded defendant.
The initial interrogation can be the worst. The defendant must decide if he should preserve or waive his constitutional and statutory rights to remain silent. Criminal defense attorneys nearly always advise their clients to exercise these rights; yet, mentally retarded defendants typically talk to police, unaware that doing so can have perilous consequences. In fact, retarded persons can be so desperate for respect and acceptance that their only goal at an interrogation is to satisfy the authorities. To do this, they will say what they think the police want them to say, even if untrue. Moreover, if they repeat the untruth enough, they may begin to believe it. Years of being taunted and rejected have taught them to hide their disability with agreeability. Desperate for friendship and approval, they are eager to please their interrogators, who in turn want that agreement without concern for its veracity. As a result, these defendants will sign confessions they do not understand. The courts then rule that the confessions are voluntarily, knowingly, and intelligently made.
Earl Washington grew up in a rural home marked with drinking and violence. Diagnosed with mental retardation and brain damage, he attended special education classes but never finished school. He had an I.Q. between 57 and 69. His teacher described him as being easily led. Others who knew him said he would agree with everything. He was interrogated by police about a shooting incident. During the interrogation, he confessed to the shooting and five other crimes, including a murder. The police later determined that he did not commit the shooting or four of the other crimes. He was tried and convicted of the murder in spite of critical factual discrepancies in his account of the crime. The trial court found his confession to be voluntary and admissible even though the court was aware of his false confessions to the other crimes. Numerous appeals were unsuccessful. In 2000, a new series of DNA tests showed no trace of Earl Washington at the scene of the crime. He was pardoned after 18 years in prison.8
Eddie Mitchell, with an I.Q. of 66, ended up on death row in Louisiana. He waived all of his rights during his interrogation and was later convicted on his confession. When an attorney asked him if he understood what “waiving his rights” meant, Mitchell raised his right hand and waved.9
Because they claim to understand right from wrong, mentally retarded defendants are determined fit for trial. At trial, they encounter a system that does not compensate for their inability to fully participate in the trial process, to confer with their attorney, and to participate in their own defense. In fact, these defendants strive to conceal their disability from their lawyers as they have learned to conceal it from everyone else. Many lawyers, in turn, lack the training or sensitivity to detect the condition and, therefore, do not provide a proper defense for their client.
Billy Dwayne White was a mentally retarded defendant accused of murder in Texas. He had an I.Q. of 66. He was not capable of learning to operate a dishwasher in a restaurant or any other simple tasks without direct supervision. Yet, his trial attorney was unaware of his mental retardation. During his murder trial, he fell asleep and began to snore. The prosecutor argued to the jury that his sleeping demonstrated a lack of remorse for his crime and a lack of respect for the criminal justice system. White was sentenced to death and was executed.10
Mental retardation should be established on the record through expert testimony and presented to the jury as a mitigating circumstance. This is important for establishing the defendant’s level of credibility and for making a defense based on his lack of culpability to commit a crime worthy of the death penalty.
This is no guarantee of justice, however. Trial counsel can know of the disability and provide expert testimony about it, only to have that testimony backfire with the jury. A mentally retarded man on trial for raping and murdering an elderly woman had an expert testify on his behalf. The psychologist testified that the defendant knew that rape was wrong but did not know why. When pressed for an answer, he had supposed that it might be wrong because he did not get permission; and when pressed further, he blurted out in desperation, “Maybe it’s against her religion.” Hearing this, the jury gasped.11
Rationale of the Court
Opponents of the decision reached in Atkins argue that the conclusion was unnecessary. Thirteen years prior to Atkins, the Court decided the case of Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the Court went to great lengths to set out the right of a defendant to proffer mitigating evidence of mental retardation to the jury. In Penry, the Court made it clear that the jury must be allowed to consider the mitigating evidence when deciding between a punishment of death or life in prison. Opponents point out that this is a safeguard for the mentally retarded, already in place.
Although the Court refused to render an absolute prohibition of the imposition of the death penalty for the mentally retarded in Penry, it did set aside the death penalty and remand the case for a new penalty phase. The Court concluded that the statutory questions presented to the jury in the form of jury instructions failed to permit the jury to give effect to the mitigating evidence.12 However, upon retrial of the penalty phase of Penry, the trial judge again read the same three statutory questions to the jury in its instructions. The case is now on appeal.
In Atkins, the Court discussed the changes that occurred since its ruling in Penry. At the time of the Penry decision, only two states, Georgia and Maryland, and the federal government, had statutes prohibiting the execution of mentally retarded persons. The Court concluded that, when combined with the 14 states that banned capital punishment, there was not sufficient evidence of a national consensus.13 Since Penry, 15 more states have enacted laws prohibiting the execution of persons who are mentally retarded. Noting the consistency of the direction, the Court said:
Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crimes, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition.14
The Court also pointed to the case of Gregg v. Georgia, 428 U.S. 153, 183 (1976), where it identified “retribution and deterrence of capital crimes by prospective offenders” as being the social purposes served by the death penalty. The Court had serious reservations that either applied to the mentally retarded.15 In addressing retribution, the severity of the punishment should depend upon the culpability of the offender. Due to the lack of culpability of the mentally retarded offender, this element is not met.16 With respect to deterrence in capital sentencing, the thinking is that the increased severity of the punishment will inhibit criminally murderous conduct. Because of the cognitive and behavioral impairments of the mentally retarded, they lack the ability to understand and process information, learn from experience, engage in logical reasoning, or control impulses.17 Therefore, the death penalty is very unlikely to have any deterrent effect on a mentally retarded offender. Continuing to impose the death penalty on the mentally retarded is a needless imposition of pain and suffering due to a failure to satisfy or contribute to either criteria established in Gregg.
Impact on Florida Law
In Atkins, the Court inferred that the only remaining disagreement to be resolved concerning the execution of the mentally retarded is the process by which defendants are evaluated for mental retardation. The Court acknowledged that some claiming to be retarded will not fall within the range of mental retardation protected by a national consensus.18 The Court said further that, as in the issue of insanity, “We leave to the state(s) the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences”—quoting its own language from the case of Ford v. Wainwright, 477 U.S. 399, 417 (1986).
Because of its notoriety as a state that is active in its imposition of the death penalty, Florida was important in the development of the national consensus. Florida was one of the last of the 15 states, since the case of Penry v. Lynaugh, to enact legislation prohibiting the imposition of the death penalty for mentally retarded persons.19
F.S. §921.137 was signed into law on June 12, 2001, by Governor Jeb Bush. The statute defines mental retardation as significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning” is defined as two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Department of Children and Families.20
Many experts believe that this definition most likely includes persons with an I.Q. of 70 or below. The Department of Children and Families currently does not have a rule. The department has established criteria favoring the nationally recognized tests. Two or more standard deviations from these tests means that an I.Q. of 70 or below, and possibly as high as 75, is protected.
The term “adaptive behavior” is defined statutorily as the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.21 This is considered to be the equivalent to the significant limitations in adaptive functioning in the areas of communication, self-care, home living, social/interpersonal skills, self-direction, functional academic skills, and work.
The Florida Supreme Court has not yet ruled on the constitutionality of F.S. §921.137. The definitional portion of the statute, as it is currently being implemented, seems to be in line with the recent federal ruling. However, some details of the statute may have questionable validity given the recent U.S. Supreme Court decisions.
Under the Florida statute, the final sentencing hearing in which the court considers the findings of the court-appointed experts and any other experts offered by the state or the defendant takes place following the guilt phase and the sentence phase of the trial. The Penry case would seem to hold that the defense is able to offer mitigating evidence of mental retardation during the guilt and sentence phases.
The judge, not the jury, determines whether the defendant is mentally retarded. The question of who should have the final determination, judge or jury, is certainly wide open in light of more recent U.S. Supreme Court rulings, and remains an open issue.
Of further concern regarding the Florida statute is that the court’s finding must be determined by clear and convincing evidence. This standard of proof will require review by the court. There is nothing in the Atkins case to suggest an appropriate standard of proof. Some assistance may be found in the Ford case where the Court said: “It may be that some high threshold showing on behalf of the prisoner will be found a necessary means to control the number of nonmeritorious or repetitive claims of insanity.”22
Finally, the Florida statute states that it does not apply to a defendant who was sentenced to death prior to the effective date of the act.23 This restriction definitely should be challenged in light of the clear mandate of the Atkins case. There are many mentally retarded defendants sitting on death row whose fates will be determined in the months and years to come.
1 Atkins v. Virginia, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).
2 Id. at 2243.
3 Id. at 2243.
4 Id. at 2254.
5 Aimee D. Borromeo, Mental Retardation and the Death Penalty, 3 Loy. J. Pub. Int. L. 180 (2002).
6 Ruth Luckasson, The Death Penalty and the Mentally Retarded, 22 Am. J. Crim. L. 276 (1994).
7 Mental Retardation: An Overview, Human Rights Watch, at www.hrw.org/reports/2001/ustat/ustat0301-01.htm (July 6, 2002).
8 The Miscarriage of Justice: Mental Retardation and Capital Trials, Human Rights Watch, at www.hrw.org/reports/2001/ustat/ustat0301-03.htm (July 6, 2002).
9 Defendants with Mental Retardation: Their Stories, Human Rights Watch, at www.hrw.org/reports/2001/ustat/ustat0301-07.htm (July 6, 2002).
10 Mental Retardation: An Overview, Human Rights Watch, at www.hrw.org/reports/2001/ustat/ustat0301-01.htm (July 6, 2002).
11 Mental Retardation: An Overview, Human Rights Watch, at www.hrw.org/reports/2001/ustat/ustat0301-01.htm (July 6, 2002).
12 Penry v. Lynaugh, 492 U.S. 302, 305 (1989).
13 Atkins, 122 S. Ct. 2242.
14 Id. at 2252.
15 Id. at 2255.
16 Id. at 2256.
17 Id. at 2256.
18 Id. at 2253.
19 Fla. Stat. §921.137 (2001).
20 Fla. Stat. §921.137(1) (2001).
21 Fla. Stat. §921.137(1) (2001).
22 Ford v. Wainwright 477 U.S. 399, 417 (1986).
23 Fla. Stat. §921.137(8) (2001).
Philip Fougerousse is a certified mediator with the Fraxedas Mediation Firm in Maitland. With a law degree from Indiana University at Indianapolis, former Judge Fougerousse served as a member of the Florida Supreme Court Commission on Fairness. He was appointed by Governor Chiles as chair of the Florida Coordinating Council on the Americans With Disabilities Act. He is a member of the Disability Law Committee of the Public Interest Law Section.
This column is submitted on behalf of the Public Interest Law Section, Gerard F. Glynn, chair.