Atkins v. Virginia: the costs of arriving at a decision to exempt the mentally retarded from execution.

• Author: Madison, Lori A.

INTRODUCTION

In 1989, the United States Supreme Court in Penry v. Lynaugh (1) first addressed the issue of whether the execution of the mentally retarded was cruel and unusual punishment under the Eighth Amendment. At that time, lack of a national consensus on the issue lead to the Court's finding that execution of the mentally retarded did not violate the Eighth Amendment. (2) States responded differently to the Penry decision. Some states enacted legislation to prohibit such executions; and others, including Alabama and Virginia, continued to execute offenders regardless of their IQ scores when they have been found so blameworthy as to deserve such punishment. (3)

Then, Daryl Renard Atkins, a mildly-retarded individual, who had been sentenced to death in Virginia, challenged the right of these states to constitutionally execute the mentally retarded. (4) In his case, the Court held that execution of the mentally retarded violates the Eighth Amendment. (5) An important factor in the Court's decision was the national consensus that emerged after the Penry decision. (6)

Categorically protecting certain classes from execution is not a new concept. (7) However, the justifications for the Court's decision have eroded the concepts of a national consensus and faith in the jury as a sentencing body. Even after the Court bends these concepts in order to find a way to extend this protection to the mentally retarded, the exemption may not apply to all mentally retarded defendants.

Part I of this Note recaps the background relative to the issue of an Eighth Amendment death penalty exemption for the mentally retarded. The facts, procedural history, and rationale of Atkins v. Virginia (8) are set out in Part II. Part III analyzes the Court's declaration of a national consensus and its impact, and Part IV addresses the Court's loss of faith in the jury's ability as a sentencing body. Finally, Part V briefly examines what the future may hold for mentally retarded defendants.

DEVELOPING AN EXEMPTION FOR THE MENTALLY RETARDED

The Supreme Court has considered categorical bans on execution of certain classes of citizens in order to protect those classes from "cruel and unusual" punishment. (9) The starting point for determining whether a punishment violates the Eighth Amendment has been what was recognized as an acceptable form of punishment when the Bill of Rights was adopted. (10) The Court has recognized that what is acceptable varies with the "evolving standards of decency that mark the progress of a maturing society." (11) The Court has given great deference to state legislation in considering society's values because it is "the clearest, most reliable, objective evidence of contemporary values." (12) Therefore, if a class of citizens is to be protected from execution, then that class must have been exempt from the punishment at common law or prove that society no longer approves of the execution of those in that class.

In Penry, when the Court first confronted the issue of whether a categorical prohibition should exist for the mentally retarded, it used the framework set out in prior Eighth Amendment cases. (13) Examining common law, the Court found that "idiots" were exempt from execution because they "had a total lack of reason or understanding or an inability to distinguish between good and evil." (14) "Idiots" would equate to today's severely and profoundly retarded individuals who are exempt from execution based on insanity. (15) Because other mentally retarded individuals were still subject to execution, the Court set out to determine how society felt about executing the mentally retarded. At that time, Georgia had the only statute preventing the mentally retarded from being subjected to capital punishment. (16) A similar prohibition existed under a federal statute. (17) Those few existing statutes were not enough to establish a national consensus that reflected a change in the nation's "standards of decency," and the Court held that the mentally retarded were not categorically exempt from the death penalty. (18) Instead, the Court decided to protect this class by making mental retardation a mitigating factor to be considered at sentencing. (19)

Although the Court did not find a national consensus in 1989, it did not foreclose on the possibility that a national consensus against such executions would later develop. (20) After the Penry decision, more states enacted statutes to prohibit the execution of the mentally retarded. (21) There were 18 states with such prohibitions when Atkins appealed to the Court. (22) This growing trend in legislation prompted the Court to grant a writ of certiorari for the Atkins case. (23)

ATKINS V. VIRGINIA

1. Facts and Procedural History

   In Atkins, Daryl Renard Atkins, the mildly-retarded petitioner, sought a prohibition against the execution of the mentally retarded after he was convicted and sentenced to death. (24) Atkins and William Jones were out of money after spending the day "drinking and smoking weed" so they used a firearm to force their way into Eric Nesbitt's truck. (25) They removed $60 from Nesbitt's wallet, drove him to a local bank, forced him to make a withdrawal from an automated teller machine, and then drove him to an isolated area. (26) He cooperated and asked only that the men not hurt him. (27) Despite the plea, Atkins shot Nesbitt eight times in the thorax, chest, abdomen, arms, and legs. (28)

   In the first attempt at sentencing Atkins, the Commonwealth pushed for the death penalty based on the aggravating factors of future dangerousness and vileness of the crime. (29) The defense countered with testimony from Dr. Evan Stuart Nelson regarding Atkins' full scale IQ of 59 which would have placed Atkins in the category of mildly mentally retarded. (30) Despite the mitigating evidence of mental retardation, the jury sentenced Atkins to death but the Supreme Court of Virginia reversed the sentence and remanded the case for a new penalty proceeding because of an error in the verdict form. (31)

   At the second penalty proceeding, the Commonwealth once again argued for the death penalty based on both future dangerousness and vileness of the crime. (32) In addition, the Commonwealth presented testimony from Dr. Stanton E. Samenow to rebut the testimony of Dr. Nelson, who testified again as to Atkins' mental retardation. (33) While the experts' opinions differed with respect to Atkins' mental capabilities, both experts agreed that Atkins appreciated the criminality of his conduct and understood that his actions were wrong. (34) Thus, a jury again sentenced Atkins to death. (35)

   On a second appeal, the Supreme Court of Virginia addressed Atkins' assertion that he could not be sentenced to death because of his mental retardation. (36) Relying on Penry, it held that mental retardation was to be only a mitigating factor in determining whether the death penalty was warranted. (37) The jury, as the finder of fact, had the right to weigh the experts' testimonies and to decide if Atkins' mental retardation should prevent him from being executed. (38) Considering the same evidence as the jury, the Virginia Supreme Court did not find that Atkins' diminished intellectual capacity alone should prevent him from being executed. (39) Unwilling to "commute Atkins' sentence of death to life imprisonment merely because of his IQ score," it affirmed the death sentence. (40)

   Not all the Virginia Supreme Court justices were unwilling to commute the sentence to life imprisonment, Justice Hassell and Justice Koontz each wrote dissents. (41) They found it "indefeasible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts" and opined that society should recognize that limitation. (42)

   The dissenters' concerns and the increased legislation against the execution of the mentally retarded prompted the United States Supreme Court to grant certiorari to reconsider a categorical bar against such executions and lent support to the Supreme Court's ultimate decision. (43)

2. Majority Opinion

   The majority for the Court held that the mentally retarded should be punished for their crimes but not executed. (44) It reached its conclusion by first examining whether the "evolving standards of decency that mark the progress of a maturing society" reflected a national consensus against executing the mentally retarded. (45) The Court recognized that objective evidence, like legislation, is best in establishing a national consensus but the Court used other evidence as well. (46) Then, the Court brought its own judgment into the determination to affirm its finding of the national consensus. (47) Here, the Court decided to agree with the national consensus because the mentally retarded, by definition, "have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." (48) Therefore, based on a new national standard and the Court's own judgment as to the capacities of the mentally retarded, execution of the mentally retarded is no longer an available punishment.

   First, the Court pointed to the evidence of state legislation to establish that national standards have changed since Penry. An examination of the legislative trend showed that 16 other states joined Georgia, Maryland, and the federal government in prohibiting the execution of the mentally retarded since Penry. (49) Other states made considerable attempts toward enacting similar legislation. (50) The Court was particularly impressed with the "consistency of the direction of change" in legislation and the overwhelming votes for the legislation protecting the mentally retarded from the death penalty. (51)

   The Court then deviated from the legislative indicia to...