Atkins v. Virginia: How Flawed Conclusions Convert Good Intentions Into Bad Law

• Author: Christopher L. Chauvin
• Position: J.D./B.C.L., May 2004, Paul M. Hebert Law Center, Louisiana State University
• Pages: 473-524

J.D./B.C.L., May 2004, Paul M. Hebert Law Center, Louisiana State University. The author wishes to thank Johnny L. Matson, Ph.D. for his generous and honest guidance through difficult research and Vice Chancellor Cheney C. Joseph, Jr. for his insight and support. The author also wishes to thank his parents and family for their selfless support throughout the law school experience.

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"It may be truly said to have neither FORCE nor WILL, but merely judgment" ¹

I Introduction

Defending what some labeled a potentially tyrannical judiciary, Alexander Hamilton authored the above phrase of art, concluding that, so long as the judiciary never co-mingled with the other branches of government, it could do no true harm to the young republic.² This notion usually will hold true, and the American people will not lash out against the courts or demand accountability unless they perceive a decision to be unjust or infringe on some right they believe to be "fundamental."³ Rarely, however, does the public at large demand that judicial heads be counted in response to an opinion which has the appearance of extending liberties.⁴ Self-interested complacency of this sort is magnified when courts address difficult scientific issues, leaving the populous trapped as pawns in a game of experts. Therefore, it is imperative that tortuous cases like these be scrutinized with common sense and disinterested thought. The usual suspects often forgo such exercises, with many media outlets and "health organizations" failing to sufficiently analyze rules of law based on complex and dynamic scientific constructs.⁵Page 474

In the summer of 2002, the United State Supreme Court ruled on Atkins v. Virginia⁶ and held that executing mentally retarded capital offenders violates the Eighth Amendment's protection against cruel and unusual punishments.⁷ Not many people truly know what it means for a person to be "mentally retarded," and may get the impression that those so diagnosed make up a clearly defined group with the same illness and deficiencies. The American Association of Mental Retardation (AAMR) defines mental retardation by using a three-dimensional framework, in which a person is not considered to be mentally retarded unless he first exhibits limitations in intellectual functioning, typically manifested by an IQ of less than seventy.⁸ One assessing a suspected mentally retarded person must also find that his ability to function in the world or adapt to his environment is significantly impaired.⁹ Finally, the AAMR suggests that in order to accurately diagnose someone with mental retardation, the intellectual and adaptive deficiencies must manifest before the person reaches the age of eighteen.¹⁰

Unfortunately, however, assessing mental retardation is anything but a precise science. The majority in Atkins failed to adequately consider this, making its holding very confusing and functionally difficult for states to implement. Essentially, the majority based its holdings on two legal findings. First, the majority held that executing mentally retarded offenders is unconstitutional because a "consensus" of states have proclaimed that the practice is cruel and unusual and therefore violates the Eighth Amendment. To support this assertion, however, the majority ignored the methodologies of previous cases undertaking this exact exercise, opting instead to sketch a make-shift method that is unworthy to effect a constitutional determination. Such constitutionally inappropriate methodology is devastating and may unleash a chilling effect upon what Justice Brandeis referred to as the "experimentation" of state legislatures in the fields of socialPage 475 and economic policy.¹¹ Second, the majority buttressed its lackluster "consensus" analysis with a scientific conclusion that is anything but scientific, making the holding unsupportable and confusing for state courts and legislatures to follow.

Part II of this note discusses the facts and opinions of Atkins as well as United States Supreme Court cases that preceded it concerning the Eighth Amendment and a defendant's mental state. Part III analyzes the majority's holding that there existed a "consensus" of states that found the execution of mentally retarded capital offenders to violate the Eighth Amendment, and concludes by subjecting the majority's other rationale, its scientific findings, to criticism from experts and authors in the field of psychology. Part IV discusses some of the early ways that courts and state legislatures have attempted to deal with Atkins, and Part V offers concluding thoughts.

II Atkins v. Virginia

A The Facts

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At approximately midnight on August 16, 1996, after spending most of the day drinking alcohol and smoking marijuana, the defendant Daryl R. Atkins and a partner, William Jones, drove to a convenience store intending to rob a customer at gunpoint.¹² Instead of carrying out the crime at the store, the pair chose to abduct their male victim, Eric Nesbitt, and drive him to a nearby automated teller machine where they forced him to withdraw two-hundred dollars.¹³ After the violently forced extraction, the pair smuggled the victim to a deserted area, and, ignoring his relentless pleas for life, ordered him out of the vehicle, at which time Atkins shot him eight times.¹⁴ Atkins and Jones failed to avoid the ATM's cameras, however, and were arrested and charged with capital murder.¹⁵ Each suspect told police a similar story of the events, with the key distinction being that both claimed that the other had pulled the trigger to murder Nesbitt.¹⁶ Deciding that Jones's story was more credible, the state chose to use his testimony and seek the death penalty against Atkins, who it believed was the shooter.¹⁷ At trial, the jury heard testimony from both Atkins and Williams, agreed with the state's assessment of the case, and convicted Atkins of capital murder.¹⁸ They sentenced him to death.¹⁹Page 477

The initial death sentence was overturned.²⁰ The trial court conducted a new sentencing hearing, in which the defense presented mitigating evidence in the form of psychological testimony that sought to establish that Atkins should not be executed because he was mentally retarded.²¹ In expert testimony, Dr. Evan Nelson opined that Atkins was "mildly mentally retarded," and possessed an IQ of fifty-nine.²² Nelson also suggested that Atkins displayed certain adaptive behavioral impairments, that "he was a 'slow learner,' who showed a 'lack of success in pretty much every domain of his life,' and that he had an 'impaired' capacity to appreciate the criminality of his conduct" and conform to the law.²³ Nelson based his diagnostic conclusions on results from the Wechsler Adult Intelligence Test, and grounded the adaptive findings upon his review of past school and court records along with interviews of people who knew Atkins.²⁴

In response, the prosecution offered testimony from its own expert witness, Dr. Stranton Samenow, who, after interviewing Atkins twice and asking him questions from the standard IQ test, testified that there was no evidence that he was mentally retarded, and that he was at least of average intelligence.²⁵ Refusing to suggest thatPage 478

Atkins was completely normal, the prosecution's expert submitted that he believed the defendant suffered from anti-social personality disorder and an overall distaste for academic exercise.²⁶ Aggravating evidence included photos of Nesbitt's badly mutilated body and the testimony of victims from Atkins's sixteen prior felony convictions.²⁷ After weighing all of the testimony, and being judicially reinstructed according to Virginia law, the jury once again sentenced Atkins to death.²⁸ Affirming the sentence, the Virginia Supreme Court declared that they would not commute Atkins's sentence to life solely because of his IQ score.²⁹

B The Road to Atkins

1. Judging the Mental State: Early Findings

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The Supreme Court's first efforts to distinguish accused offenders on the basis of their mental state concerned the most severe mental impairment: insanity. Insanity, of course, does not affect a court's ability to impose a harsh sentence, but rather is an affirmative defense to a conviction altogether. Scholars and advocates usually trace judicial treatment of this issue back to M'Naugten's Case,³⁰ an old English opinion which continues to be the basis of the American legal standard. M'Naughten's Case identified insanity as an affirmative defense to prosecution if the accused did not know the "nature or quality of what he was doing; or if he did know it, that he did not know he was doing what was wrong."³¹Page 480

The United States Supreme Court confronted the issue of mental capacity in the context of the death penalty in Ford v. Wainwright³² and held that imposing the death penalty upon a person who was insane violated the Eighth Amendment.³³ In Ford, the defendant murdered several individuals and told police that the killings were a part of an effort to save his friends...