Executing The Mentally Retarded

In Atkins v. Virginia, Scotus said the Constitution prohibits it. But they also threw in this little beauty:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not 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. As was our approach in Ford v. Wainwright, with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.

So Alabama can’t execute mentally retarded people, but Alabama gets to decide who is mentally retarded. Brilliant work guys.

Anyway, there being no statutory definition, the state supremes, in Ex Parte Perkins, 851 So.2d 453 (Ala. 2002), lifted the definition from other states:

Those states with statutes prohibiting the execution of a mentally retarded defendant require that a defendant, to be considered mentally retarded, must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).

You don’t need a J.D. or a Ph.D. to see that those are some extremely vague standards. So cases like this one are the norm:

A federal judge has ruled that convicted triple murderer Glenn Holladay meets the criteria for mental retardation and should be exempt from Alabama’s death penalty.

Senior U.S. Judge Robert Propst in a ruling Thursday stated he does not agree with an earlier ruling by U.S. Magistrate Judge Harwell Davis.

The state says it will appeal the decision. I think the result will turn on the standard of review. Legal decisions by a lower court get no deference from an appellate court. The issue is decided “de novo” on appeal. Factual conclusions by a lower court are reviewed for clear error. Mixed questions are also de novo. The latter category includes issues like whether a search was reasonable, or whether counsel was ineffective.

I don’t know if the 11th circuit has decided on a standard for Atkins claims. My guess is that the underlying facts – iq scores for example – will be subject to clear error while the ultimate conclusion – mentally retarded or not – will be de novo.

From the news report, that would favor the defendant in this case, as the big issue seems to be which expert to believe. In other words, if the defendant’s expert is right, then the guy is mentally retarded. But if the state’s expert is right, then the guy is not mentally retarded. The district court believed the defendant’s expert, which is a factual finding of the type normally credited by an appellate court.

FWIW, for the same reasons I don’t support tort reformers who want to impose caps on damages, I don’t get too excited about cases like Atkins. I have full faith in juries to consider all the evidence and render a just verdict. Even without Atkins, mental retardation was a fact jurors could use to reject the death penalty.

Explore posts in the same categories: Appellate And Post-Conviction Issues, Capital Punishment, Scotus

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