Capital Punishment and the Mentally Retarded Offender

• Date: 01 September 2004
• Published date: 01 September 2004
• DOI: 10.1177/0032885504268182
• Author: Peggy M. Tobolowsky
• Subject Matter: Articles

10.1177/0032885504268182THE PRISON JOURNAL / September 2004Tobolowsky / MENTALLY RETARDED OFFENDERS

CAPITAL PUNISHMENT AND THE

MENTALLY RETARDED OFFENDER

PEGGY M. TOBOLOWSKY

University of North Texas

In Atkins v. Virginia, the U.S. Supreme Court held that the execution of mentally

retarded offendersis constitutionally prohibited by the Eighth Amendment—a hold-

ing directly opposite to the conclusion it reached on this issue 13 years previouslyin

Penry v. Lynaugh.This article examines the specific holdings in these two landmark

decisions dealing with mentally retarded capital offenders as well as the roles they

play in the evolution of the Supreme Court’s capital punishment jurisprudence.

Keywords: mentally retarded; national consensus; proportionality;

punishment purpose; Penry; Atkins

In 1989, in Penry v. Lynaugh, a five-person majority of the U.S. Supreme

Court held that the Eighth Amendment’s cruel and unusual punishment pro-

hibition did not categorically bar the execution of mentally retarded offend-

ers. In 2002, in Atkins v.Virginia, the Court took the opportunity to revisit this

issue. In Atkins, a six-member majority held that the execution of mentally

retarded offenders is categorically barred by the Eighth Amendment. The

Court’s decision in Atkins, just as its previous holding in Penry, reflects the

evolution of its capital punishment jurisprudence generally as well as the

application of this body of law to the specific case of the mentally retarded

offender. This article examines the Court’s treatment of categorical excep-

tions to the death penalty prior to Penry, its holding in Penry, post-Penry

developments leading up to the Atkins’s decision, the Atkins’s decision, and

the implications of the ruling in Atkins both for mentally retarded offenders

and capital offenders generally.

THE PRISON JOURNAL, Vol. 84 No. 3, September 2004 340-360

DOI: 10.1177/0032885504268182

© 2004 Sage Publications

340

I. THE COURT’S ESTABLISHMENT AND

REJECTION OF CATEGORICAL EXCEPTIONS

TO THE DEATH PENALTY PRIOR TO PENRY

A. THE PER SE CASES

Throughout most of this country’s history, the few Eighth Amendment

challenges to the death penalty that the Court considered—and rejected—

concerned the constitutionality of particular methods of carrying out theexe

-

cution sentence such as by shooting or electrocution (In re Kemmler, 1890;

Louisiana ex rel. Francis v. Resweber, 1947; Wilkerson v. Utah, 1879). In

Furman v.Georgia in 1972, the Court first considered a challenge that capital

punishment itself was a cruel and unusual punishment prohibited by the

Eighth and Fourteenth Amendments. The nine justices varied widely as to

the bases for and the results of their resolution of this issue.

Justices Brennan and Marshall separately reviewed indications of the

framers’ intent regarding the constitutional provision and the Court’s prece-

dents regarding it before ultimately concluding that the death penalty wasan

unconstitutionally cruel and unusual punishment “under the evolving stan-

dards of decency that mark the progress of a maturing society” (Trop v.

Dulles, 1958, p. 101; see also Furman v. Georgia, 1972). Justice Marshall

also concluded that the death penalty was an unconstitutionally excessive

and unnecessary punishment. After his own historical and legal analysis and

review of the contemporary implementation of capital punishment, Chief

Justice Burger, joined by Justices Blackmun, Powell, and Rehnquist (who

also wrote separate dissents), rejected this per se position itself as well as the

notion that a determination of the penological efficacy of the death penalty

was part of the constitutional analysis at all. For different reasons, Justices

Douglas, Stewart, and White each concluded that the death penalty as it was

being applied was unconstitutional. Thus, in Furman (1972), five justices

(including the two “per se justices”) concluded that capital punishment, as

then applied, violated the Eighth and Fourteenth Amendments.

The Court again addressed the per se challenge to the death penalty 4

years later in Gregg v. Georgia (1976), one of five capital cases the Court

reviewed resulting from the 35 state capital provisions that had been reen-

acted following Furman (1972). As in Furman, no opinion was adopted by a

majority of justices. The joint opinion of Justices Stewart, Powell, and

Stevens, however, has been regarded as providing a framework for the

Court’s subsequent capital punishment jurisprudence. In rejecting the per se

challenge, these justices interpreted the cruel and unusual punishment prohi-

Tobolowsky / MENTALLY RETARDED OFFENDERS 341