Equal protection from execution: expanding Atkins to include mentally impaired offenders.

• Author: Larimer, Corena G.

"Once a substantive right or restriction is recognized in the Constitution ... its enforcement is in no way confined to the rudimentary process deemed adequate in ages past." (1)

In 2002, the United States Supreme Court announced that the execution of mentally retarded offenders is unconstitutional, (2) under the Eighth Amendment's prohibition on cruel and unusual punishment. (3) This decision purported to provide absolute protection against execution for such offenders, whom the Court characterized as "know[ing] the difference between right and wrong and [being] competent to stand trial ... [but having] diminished capacities" and a corresponding reduced culpability for their crimes. (4) In practice, however, the Atkins v. Virginia decision has allowed states to narrow that protection because the Court failed to define the precise group its ruling encompassed. By "leav[ing] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction," (5) including defining the term "mental retardation," Atkins shifted the debate from whether to execute mentally retarded offenders to who qualifies as "mentally retarded." Not surprisingly, this debate has produced definitions of mental retardation that vary among the states. (6)

There is, however, one common element of states' mental retardation definitions: the requirement that symptoms manifest before adulthood. This Comment argues that the juvenile-onset requirement is inappropriate in the legal context and arguably violates the Equal Protection Clause because it requires different punishments for similarly impaired offenders based solely on the legally insignificant question of when their retardation began. (7) Part I provides background information on the Atkins decision itself. Part II explores potential ways to define mental retardation, the definitions that states have adopted, and the role of the juvenile-onset requirement in those definitions. Part HI considers possible equal protection challenges to the juvenile-onset requirement, including the appropriate level of judicial scrutiny and possible rationales a state could proffer to justify the requirement.

1. THE ATKINS V. VIRGINIA DECISION

   In Atkins, the Supreme Court held that the execution of mentally retarded offenders is unconstitutional under the Eighth Amendment's prohibition on cruel and unusual punishment. (8) To reach its conclusion, the Court first sought and found a national consensus against the practice and then brought its "own judgment ... to bear on the question of [the punishment's] acceptability." (9)

   In the first prong of its analysis, the Atkins Court surveyed the number of states refusing, either through legislation or actual practice, to execute mentally retarded offenders, (10) and noted the "consistency of the direction of change" away from the practice. (11) The Court found further evidence of consensus in the opinions of mental health organizations, religious groups, the international community, and the American public. (12) The Court concluded that a national consensus against executing mentally retarded offenders existed, (13) though it noted that "[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus." (14) As a result, though it had already cited two definitions widely used by mental health professionals, (15) the Court declined to define the term "mental retardation" and instead directed the states to adopt their own definitions. (16)

   To complete its Eighth Amendment analysis, the Court then articulated its own reasons for finding capital punishment cruel and unusual for mentally retarded offenders. The Court explained that mentally retarded offenders possess a lesser culpability than other offenders because of their diminished capacity to understand and process information, communicate with others, abstract from mistakes, learn from experience, engage in logical reasoning, control impulses, and understand the reactions of others. (17) The Court also noted that mentally retarded individuals are more likely to act impulsively rather than according to a premeditated plan and to follow the suggestions of others in group settings. (18)

   These characteristics, according to the Court, present two reasons why mentally retarded individuals should not be put to death. First, such executions do not serve capital punishment's penological goals of retribution and deterrence. The severe level of retribution exacted by execution is appropriate for only the "most deserving" offenders, not those with diminished culpability. (19) Likewise, deterrence cannot justify executing mentally retarded offenders because the same characteristics that reduce culpability also "make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information." (20) Second, these characteristics increase the danger of wrongful execution. (21) That risk takes the shape of false confessions, a reduced ability to persuasively show mitigating factors, an inaccurate but prejudicial appearance of remorselessness, the risk that jurors will view mental retardation as an aggravating factor of future dangerousness rather than a mitigating one, and the inability to effectively assist counsel and appeal to a jury. (22) Therefore, finding "no reason to disagree with the judgment of the legislatures that have recently addressed the matter," the Court held that the Eighth Amendment prohibits the execution of mentally retarded offenders as an excessive punishment. (23)

2. DEFINING THE BOUNDARIES OF "MENTAL RETARDATION"

   1. In Theory: Possible Definitions

      The Supreme Court's reticence to create a precise and uniform definition has left states, lower courts, and litigants to grapple with the question of exactly who falls within the exemption created by Atkins. It is possible to define the group protected by Atkins in three ways: using the clinical definitions of mental retardation; determining exactly what group is the subject of the Atkins Court's national consensus; or defining the group according to the Court's reasoning--that is, including all who bear the characteristics described by the Court in its rationale.

      The first of these options, using a clinical definition, is relatively straightforward and therefore attractive to legislatures seeking to implement Atkins. The Court noted, but did not explicitly adopt, two well-known clinical definitions of mental retardation. (24) These definitions, promulgated by the American Association on Mental Retardation (now the American Association on Intellectual and Developmental Disabilities (25)) and the American Psychiatric Association, are largely identical and each contain three elements: significantly subaverage intellectual functioning, limitations in adaptive skills, and a manifestation of these deficits before age eighteen. (26) The Court also noted that state statutory definitions of mental retardation that were in place before Atkins generally conformed to these clinical definitions, though with some variation. (27) The Court declined, however, to adopt either of these definitions, instead directing the states to "develop[] appropriate ways to enforce the constitutional restriction." (28)

      A second, and considerably more complicated, method of defining the protected group is to include everyone about whom there is a national consensus, the first prong of the Atkins analysis. The Court found a national consensus against executing mentally retarded offenders primarily in the number and trend of legislative enactments prohibiting such punishment and in the rarity of executions even in states that authorized it. (29) It explained that these legislative judgments "reflect[] a much broader social and professional consensus," (30) as evidenced by opposition to executing mentally retarded offenders within relevant professional organizations, religious communities, the international community, and the American public. (31) The Court acknowledged, however, that while there is a national consensus against executing mentally retarded offenders, there may not be a consensus about who is mentally retarded. (32) In other words, while legislatures, religious and professional organizations, and the American public may agree in principle on the prohibition, they may not agree on how to define the protected group. And it was precisely because of the difficulty in determining which people fall within the group about whom there is a consensus that the Court declined to endorse a specific definition and therefore left open the boundaries of the exemption. (33) The Court's refusal to settle this debate is a strong indicator that defining the group using only the national consensus would be a difficult, perhaps impossible, task for states and lower courts to take on.

      Additionally, because the national consensus is not static, society's belief regarding who should be subject to capital punishment may morph over time, leaving the issue open for litigation with each new case. So while this definition may be attractive in theory, it could be a logistical nightmare to implement.

      The final option for defining the group that Atkins protects is to use the Court's own reasoning for finding these executions cruel and unusual, the second step in its two-part Eighth Amendment test. Under this method, any offender who fits within the Court's rationale for the exclusion would be exempt from execution. The Court pointed to a number of traits that render mentally retarded offenders undeserving of capital punishment: a diminished capacity to understand and process information, communicate with others, abstract from mistakes, learn from experience, engage in logical reasoning, control their impulses, and understand the reactions of others; and a greater tendency to act on...