Evolving Standards of Decency: The Evolution of a National Consensus Granting the Mentally Retarded Sanctuary

• Author: Lyndsey Sloan
• Pages: 351-382

Page 351

Editors Note: As this article was sent to the publisher, the Supreme Court ruled that imposing the death penalty on mentally retarded individuals was excessive and that the Eighth Amendment restricts a state's power to take the life of mentally retarded offenders. For the complete opinion, see Atkins v. Virginia, 536 U.S. 304 (2002). The Supreme Court opinion rendered is consistent with the views expressed by the author of this comment.

I Introduction

In Victor Hugo's book, "The Hunchback of Notre-Dame," La Esmeralda awaited certain death by hanging after being wrongfully accused of murder.¹ The hunchback, Quasimodo, "scarcely more than half man,"² rescued the gypsy and ascended to the cathedral shouting out, "Sanctuary!"³ As described by Hugo, he did so because "[w]ithin the walls of Notre-Dame the prisoners were secure from molestation. The cathedral was recognized as a place of refuge. Human justice dared not cross its threshold."⁴

The United States Supreme Court has created a sanctuary for the less culpable and more vulnerable classes in an effort to protect them from the harshest punishment human justice renders: the death penalty. The Court has opened the doors of the refuge to the insane, and to juveniles under the age of sixteen, stating that the "cruel and unusual punishment" clause of the Eighth Amendment shelters these two classes from the death penalty.⁵However, more than a decade ago, in a sharply divided decision, the United States Supreme Court refused to allow the mentally retarded to enter the sanctuary even though the defendant of the instant case had the mental age of a seven-year-old child.⁶ The unanswered question is, why has the United States Supreme Court refused to allow this least culpable and most vulnerable class into the sanctuary?

II Background

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In Penry v. Lynaugh,⁷ the United States Supreme Court determined that execution of the mentally retarded does not offend the "cruel and unusual punishment" clause of the Eighth Amendment of the United States Constitution. In a plurality decision, Justice O'Connor conceded that, "while a national consensus against executing the mentally retarded may someday emerge... there is insufficient evidence of such a consensus today." ⁸ At the time Penry was decided, only the state of Georgia had legislation specifically exempting the mentally retarded from the death penalty.⁹ The Penry Court relied heavily on state legislation as a measure for determining a "national consensus," and for defining the "evolving standards of decency" that mark our society.¹⁰ As a result, state legislators took the matter into their own hands¹¹ by enacting laws in seventeen states that specifically exempt the mentally retarded from the death penalty. ¹²

Just over a decade after Penry¹³ was decided, the United States Supreme Court granted certiorari¹⁴ to re-examine whether executing the mentally retarded violates the "cruel and unusual punishment" clause of the Eighth Amendment of the United States Constitution in McCarver v. North Carolina.¹⁵ Coincidentally, the decision to hear oral arguments in Page 353 McCarver was issued just before the United States Supreme Court was to hear oral arguments in Penry v. Johnson (Penry II).¹⁶ Penry II involved the same defendant from Penry v. Lynaugh (Penry I).¹⁷ The United States Supreme Court granted certiorari a second time in Penry to review claims of procedural due process violations and self-incrimination raised in Penry v. Johnson (Penry II).¹⁸ The remarkable decision granting certiorari to Penry a second time, coupled with the timing of the decision to grant certiorari in McCarver v. North Carolina,¹⁹ falls just short of a confirmation that the United States Supreme Court is uneasy about the original decision in Penry v. Lynaugh.²⁰

Shortly after the United States Supreme Court granted certiorari to hear arguments in McCarver v. North Carolina,²¹ Governor Michael Easley of North Carolina signed a bill into law banning the execution of the mentally retarded in the state.²² Because the law was retroactively applied, McCarver's case became moot. ²³ However, the U.S. Supreme Court granted certiorari in Atkins v. Virginia,²⁴ thereby replacing McCarver with Atkins as the test case. Supreme Court observers were surprised by this grant of certiorari because the Court replaced McCarver, who has an IQ of 67, with Atkins, who has an IQ of 59, as the defendant challenging the Penry decision.

The shift in national consensus evinced by the enactment of recent state statutes, coupled with the change of the constituency of the United States Supreme Court since Penry,²⁵indicates that the United States Supreme Court may have granted certiorari in Atkins v. Virginia²⁶ with the intention of reversing Penry. This comment argues that the United States Page 354 Supreme Court should reverse Penry and allow mentally retarded defendants to enter the "sanctuary" that protects other less culpable groups.

Section III of this paper traces the evolution of the Eighth Amendment and compares the treatment of juveniles and the insane to the mentally retarded, thereby illustrating that executing the mentally retarded is "cruel and unusual punishment." Section IV discusses mental retardation and highlights the unique difficulties mentally retarded defendants face as a result of Penry. Section V analyzes the Penry Court's decision and demonstrates that a national consensus exists today against the execution of the mentally retarded. Finally, Section VI argues that the United States Supreme Court will reverse Penry in Atkins v. Virginia,²⁷ a case currently awaiting oral argument.

III: The Evolution of the Eighth Amendment

Executing the mentally retarded must be reconciled with the Eighth Amendment of the United States Constitution, which states that, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."²⁸ In an attempt to derive meaning from the "cruel and unusual punishment" clause, Justice Scalia noted in Harmelin v. Michigan that, "the entire text of the Eighth Amendment is taken almost verbatim from the English Declaration of Rights."²⁹ At the time the Eighth Amendment was drafted, the phrase had already been used in several other documents³⁰ so there was little discussion as to what meaning attached to the phrase "cruel and unusual punishment."³¹ It was not until 1910 that the United States Supreme Court embarked on a comprehensive analysis of the Eighth Amendment in Weems v. United States.³²

The Weems Court adopted a contemporary interpretation by declaring that the Court was in no way bound to the original meaning of the terms.³³In Weems, the Court determined that a sentence of fifteen years of hard, enchained labor for the offense of falsification of a public document was cruel and unusual punishment because it was not proportionate to the crime.³⁴ The Court stated that, "[t]he clause (referring to the cruel and Page 355 unusual punishment clause) of the Constitution, in the opinion of the learned commentators may be therefore progressive and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice."³⁵

Over fifty years later, the Eighth Amendment meaning in Weems was affirmed and expanded in Trop v. Dulles.³⁶ The Trop Court was faced with the question of whether denationalization as a punishment was offensive to the Eighth Amendment.³⁷ In concluding that denationalization was prohibited as a punishment, the Trop Court reasoned that, "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards."³⁸ The Trop Court coined the most commonly quoted passage in Eighth Amendment jurisprudence and one that was uttered by the Penry Court: "The amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."³⁹

It was not until the death penalty was reinstated in 1976 that the United States Supreme Court analyzed the Eighth Amendment in the context of the death penalty.⁴⁰ In Gregg, the Court stated that the Eighth Amendment must be "interpreted in a flexible and dynamic manner" that reflects society's evolving standards of decency."41 The Court's criteria for determining "evolving standards of decency" included "objective indicia that reflect the public attitude toward a given sanction."⁴²

A Executing the Insane

Although the prohibition against the execution of the insane dates back to early British common law, it was not formally recognized in this country by the United States Supreme Court until 1986 in Ford v. Wainwright.⁴³ The United States Supreme Court determined that the execution of a defendant suffering from a...