Determining mental retardation in capital defendants: using a strict IQ cut-off number will allow the execution of many that Atkins intended to spare: ex parte State (Smith v. State).

• Author: Sharp, Holly T.

INTRODUCTION

In Ex parte State, the Alabama Supreme Court held that for the purposes of determining mental retardation of a defendant facing the death penalty a court must apply the three-prong test set forth in Ex parte Perkins. (1) The holding in Ex parte State follows the decision of the United States Supreme Court in Atkins v. Virginia. (2) In Atkins, the Court declared it a violation of the Eighth Amendment of the Constitution to execute mentally retarded defendants. (3) The Court, however, left it to the States to define mental retardation. (4)

The holding in Ex parte State leaves at least three important questions unanswered. First, can external factors affect an Intelligence Quotient (hereinafter "IQ") score? Second, can an IQ score be faked? Finally, should courts use IQ scores as a strict guideline for determining mental retardation? The ruling in Ex parte State addresses the unconstitutionality of executing mentally retarded defendants. (5) The Alabama Supreme Court remanded the case to the trial court so that it could properly apply the three-prong test set forth in Ex parte Perkins. (6) The test applies the following factors to determine mental retardation: "(1) significantly subaverage intellectual functioning (i.e. an IQ of 70 or below); (2) significant or substantial deficits in adaptive behavior; and (3) the manifestation of these problems during the defendant's developmental period (i.e. before the defendant reached age 18)." (7) However, a number of external, cultural, and societal factors may affect IQ scores. Therefore, the court could have achieved a better result in its application of the Atkins holding. This note suggests that the Alabama Supreme Court should abandon the language in Ex parte Perkins that institutes a defined cut-off IQ score for determining mental retardation and instead should look at the IQ score as a mitigating factor.

The first section of this note discusses background information, including the development of the death penalty and execution of the mentally retarded in the United States and the historical development of this case as it relates to other Alabama cases. The second section is a statement of the case including a recitation of the facts, the procedural posture, and the court's holding and reasoning. The third section is a detailed analysis of the case including: (1) an analysis of the external factors that can affect an IQ score, (2) an examination of whether an IQ score can be faked, and (3) a discussion of whether a strict IQ cut-off score should be used for the imposition of the death penalty. The final section is a summary of the issues and conclusion.

BACKGROUND INFORMATION

1. Modern History of the Death Penalty in the United States

   In 1972 the United States Supreme Court heard Furman v. Georgia. (8) In that case the defendant was a black man accused of raping and murdering a woman. (9) The majority held that the death penalty violated the Eighth Amendment if the punishment was "unusual" in that its imposition "discriminates against [the accused] by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices." (10) The Court concluded that "application of the death penalty is unequal: most of those executed were poor, young, and ignorant." (11) The Court held that capital punishment, in its current scheme, violated both the Eighth and Fourteenth Amendments: "Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on 'cruel and unusual' punishments." (12) In his dissent, Justice Rehnquist said the Court should adhere to precedent and uphold the longstanding death penalty: "The Court's judgments today strike down a penalty that our Nation's legislators have thought necessary since our country was founded. My Brothers Douglas, Brennan, and Marshall would at one fell swoop invalidate laws enacted by Congress and 40 of the 50 state legislatures...." (13)

   Capital punishment received new life in 1976 when the United States Supreme Court reinstated the death penalty in Gregg v. Georgia. (14) Gregg and a sixteen-year-old companion were hitchhiking through Florida when the victims gave them a ride. (15) After the men crossed the Georgia state line, the victims let Gregg drive while they sat in the back seat of the car and "did considerable drinking." (16) Later they stopped at a rest stop and all four travelers got out of the car. (17) While at the rest stop, Gregg shot and killed both victims, robbed their pockets, threw the bodies in a ditch, and drove away in their car. (18) The trial court convicted Gregg of armed robbery and the murder of two individuals. (19) The Supreme Court held that capital punishment is not always violative of the Eighth and Fourteenth Amendments and that the goals of retribution and deterrence of capital crimes may be permissible "considerations for the legislature to weigh in determining whether the death penalty should be imposed." (20) The Court reasoned that when an offender purposefully takes a life "we cannot say that the punishment [of death] is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes." (21)

2. Execution of the Mentally Retarded in the United States

   1. Defining Mental Retardation

      In Atkins v. Virginia, (22) the United States Supreme Court recognized two well-established definitions of mental retardation. (23) The American Association on Mental Retardation (hereinafter "AAMR") defined mental retardation as follows:

      Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work. Mental retardation manifests before age 18. (24) The American Psychiatric Association's (hereinafter "APA") definition is very similar to the AAMR's:

      The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system. "Mild" mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. (25) [] To assess intellectual functioning it is necessary to administer and

      evaluate the score of an IQ test. There are many different types of IQ tests. The Weshsler scales for children and adults and the Stanford-Binet scale are the most widely used. (26) The IQ test administered must be "appropriate for the particular individual in order for the tests to provide an accurate measure of IQ." (27) The professional who administers an IQ test must consider "cultural, linguistic, sensory, motor, and behavioral factors" when choosing which particular test to administer. (28) Therefore, the test administrator must be well trained in assessing the various factors, and knowledgeable of available IQ tests to choose the test best suited to the particular individual. "A statutory requirement regarding test selection would unduly interfere with the exercise of clinical judgment." (29) It is crucial for the test administrator to select the appropriate test for individuals facing the death penalty. (30)

      According to the AAMR, an IQ of seventy or below is the general threshold for determining mental retardation. (31) This score represents two standard deviations below the mean, which is 100. (32) However, the AAMR also says that there is a standard error of approximately five for most IQ tests, so the "ceiling may go up to seventy-five." (33)

   2. The Eighth Amendment's Ban on Cruel and Unusual Punishment

      The Eighth Amendment to the United States Constitution says: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (34) Defendants cite the Eighth Amendment when attempting to escape their sentence of death. Opponents of the death penalty also cite the Eighth Amendment when arguing that the death penalty should be abolished. These opponents claim that capital punishment achieved through any method is cruel and unusual. (35)

   3. Execution of the Mentally Retarded

      In 1989, the United States Supreme Court heard the case of Penry v. Lynaugh. (36) In that case, Penry raped and beat the victim before stabbing her to death with scissors. (37) At the scene of the crime, Penry admitted to police officers that he "had done it." (38) Penry was a recent parolee from prison where he was serving a sentence for a previous rape conviction. (39) The court deemed Penry competent to stand trial despite a psychologist's testimony that Penry was mildly to moderately retarded, had the mental capacity of a six year old child, and was a victim of abuse. (40) At trial, Penry raised an insanity plea and presented evidence that he suffered from an organic brain disorder and was moderately retarded. (41) The State introduced evidence that Penry was legally sane, claiming that he did not suffer from mental retardation but instead had an antisocial personality. (42) The jury rejected Penry's insanity plea and found him guilty of capital murder...