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November 20, 2003

Ban of death penalty for mentally retarded to be limited in scope

bonnieA recent Supreme Court decision banning the execution of persons with mental retardation is unprecedented, but unlikely to impact other kinds of capital punishment cases, according to a legal scholar lecturing here last week.

“The decision of the court [in Atkins v. Virginia] in 2002 does not rest on the traditional model or usual line of diminished responsibility, which has a rich legal tradition, a rich philosophical tradition and has been standard sentencing practice in our system,” said Richard J. Bonnie, John S. Battle Professor of Law at the University of Virginia School of Law. “The court [instead] used a model of diagnostic exclusion, that is, using the clinical definition of mental retardation to preclude capital punishment. I think this is odd, and it’s completely unprecedented in constitutional law; unprecedented, but defensible.”

Bonnie spoke Nov. 13 at the fourth annual Pitt School of Law’s Distinguished Nordenberg Lecture on “Diagnosis, Diminished Responsibility and the Death Penalty: Implications of the Supreme Court’s Decision Banning Execution of Persons with Mental Retardation.”

Some legal scholars see the decision in Atkins as a signal that the Supreme Court will be more likely to review capital punishment cases, but Bonnie thinks that is unlikely. “The Supreme Court might have said: The Constitution precludes the death penalty for those with diminished responsibility or capacity to make moral judgment due to: mental retardation, immaturity, mental illness, mental disorder, whatever the categories,” Bonnie said, but instead the court limited the language to mental retardation as established in a clinical sense.

“It’s important to note, too, that we’re talking about the sentencing phase here,” Bonnie said. “In Darryl Atkins’s case, he was found competent to stand trial, there was no self-defense claim and his criminal liability seemed clear. Assuming that the death sentence had been properly imposed [at the initial trial], the court was asked to rule if a person could be determined to be ‘not competent for execution’ because he did not understand the nature and the purpose of the punishment being imposed.”

The court held in a 6-3 decision that the 8th Amendment’s clause banning cruel and unusual punishment precludes the imposition of the death penalty on a person with mental retardation, which was a reversal of its 1989 ruling in a 5-4 decision, Bonnie said.

The court was influenced by the growing state legislative consensus between 1989 and 2002 in favor of considering diminished mental capacity as a factor in capital cases, he noted.

“But you do not expect those issues to come up at the sentencing phase,” Bonnie said. “Presumably, if a person does not understand the nature of the execution punishment they would not be competent to stand trial to begin with, but we know there are a lot of people on death row with mental retardation.”

In fact, the court in Atkins upheld the distinction between competence to stand trial and competence to be executed.

“Excerpting from the decision, the court said: ‘Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses and to understand others’ reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability.’”

But by applying definitions of clinical mental retardation, such as those advanced by the American Psychiatric Association, the court acknowledged that mental retardation includes significant limitations in adaptive skills and moral experience and the justices created a distinction based on that regarding the death sentence, Bonnie said.

“In my opinion, the Supreme Court was acknowledging a concern that the system has not worked properly in going through those earlier stages of trial,” Bonnie said. “That has led the court to the Atkins decision to see a disproportionality of punishment under the 8th Amendment.”

While state laws vary in their sentence-phase instructions to juries (or, in some states, to sentencing judges) among the 36 states nationally that allow capital punishment, the prevailing model is the same: Weigh aggravating circumstances (barbarity, brutality, torture and whether the defendant presents a continuing danger to society) against mitigating circumstances (typically factors relating to responsibility, culpability or lack of pre-mediation) in death penalty sentencing decisions.

“The court observed that there are cases in which the mitigating evidence of the most severe diminished capacity might also be the [cause] that results in the most aggravating circumstance, in terms of brutality, for example,” Bonnie said.

“I think overall the legal system tilts toward the death penalty. Jurors, particularly, tend to devalue mitigating evidence and diminished responsibility in the face of evidence of aggravation. They are discouraged from considering mitigating factors.”

Bonnie cited a Texas statute as Exhibit A. “The Texas statute says, ‘If you find this defendant likely to commit future violence, if you think the answer to that is yes, you should impose the death penalty no matter the mitigating evidence.’”

While that statute is unusual, “the tendency everywhere is to favor aggravating over mitigating evidence,” he said. “Occasionally, there is some relief from appellate courts who reverse a death penalty, but that has never happened in Texas or Virginia, and only occasionally in Florida, to pick three sample states not quite at random.”

A number of capital punishment states also have accepted verdicts of “‘guilty, but mentally ill,’ which give juries the idea that they are showing some leniency, when in fact they are not,” Bonnie said. “The proof of that is that in a number of cases defendants have been found guilty but mentally ill, then juries go on to the sentence phase and impose the death penalty. The Supreme Court has said to those states, ‘How can you say that the defendant is mentally ill, which obviously carries some message of less responsibility, and then impose the death sentence?’”

But these concerns were not the ultimate grounding of the court’s decision in Atkins, which was instead proportionality of punishment, Bonnie said, that is, a concern that imposing the death penalty on a person with mental retardation was in fact excessive and disproportionate punishment in relation to the culpability of the offender.

“So, something more is going on: The Supreme Court’s concern about age [when a person becomes eligible for the death penalty] and mental retardation are both ultimately grounded in implicit theories of moral development and moral maturity, and of neural development as the underpinnings of moral judgment and moral cognition,” Bonnie maintained.

“So, delayed-onset mental disorders, for example, may not actually be covered by this decision, although intuitively they seem morally equivalent, because the deficiency with mental retardation is moral experience. Presumably, people with delayed-onset disorders have had the moral experience, so categorical exclusion of the death penalty isn’t appropriate, although it obviously has to be considered in cases.”

To allow states to legislate cut-off points in defining mental retardation, such as IQ levels of 70, is too arbitrary, Bonnie noted.

“The model is analogous to age,” he said. “There are exclusionary criteria on age. In a typical state, if [a person] has not reached 10, he can’t go to criminal court; if he’s 14 or 15 he’s subject to criminal court, but not subject to the death penalty; if he’s 18, in most states, yes, he can be executed. But what about the range of maturity? We know there will be some variations, some who are 16 who are more mature than some 17 year-olds, and so on.”

Under long-standing legal tradition, deciding the severity of the sentence ought to relate in some way to the defendant’s responsibility for the crime. In Atkins, the Supreme Court ruled that, by definition, mental retardation means diminished culpability.

“My interpretation is that the Supreme Court wanted a clinical definition of mental retardation, notwithstanding that we’re applying this to the legal process,” Bonnie said. “The decision is very interesting and defensible, but without a long reach.”

—Peter Hart                     

 

Filed under: Feature,Volume 36 Issue 7

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