Atkins, Daryl v. Virginia (06/20/2002)

 6-3 for Atkins (June 20, 2002)

 Capital punishment, mentally retarded

Questions presented:

 Does the execution of mentally retarded individuals convicted of capital crimes violate the Constitution's 8th Amendment prohibition against cruel and unusual punishment?

Brief: No state imposes the death penalty on children 9 to 12 years of age.

The 8th Amendment of the Constitution prohibits cruel and unusual punishment.

Mild mental retardation, as defined by Kaplan and Sadock's Comprehensive Textbook of Psychiatry, is a person with an IQ between 50 an 69, which corresponds to a mental age of 9 to 12 years.

Daryl Renard Atkins has an IQ of 59. Mentally, he is somewhere between 9 and 12 years old.

Put in classes for slow learners with intensive instruction for remedial deficits, Atkins, with a grade point average of 1.26, didn't graduate from high school, and has never held a job or lived on his own.

On Aug. 16, 1996, Atkins and his friend William Jones, drunk and high on drugs, walked to a convenience store to buy more beer. In the parking lot, Atkins told Jones that he would panhandle to get money. A 21-year-old Langley Airforce Base airman, Eric Michael Nesbitt, soon stopped at the store. Atkins and Jones robbed him, and then abducted and drove him to a field, where Atkins shot and killed him.

Atkins was convicted in York County, Virginia, of capital murder and robbery, and sentenced to death. The conviction was reaffirmed on appeal. Atkins has been on death row since April 28, 1998.

The sentencing jury found that Atkins constituted a "continuing serious threat to society," and that his conduct in committing the capital murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder."

The jury did not consider evidence of mental retardation because Atkins' lawyers only presented such evidence on appeal before the Virginia Supreme Court, when it was presented to prove his death sentence was disproportionate under Virginia law.

On Sept. 15, 2000, the Virginia Supreme Court affirmed Atkins' conviction and sentence, finding that none of the eight issues raised on appeal required reversal.

In the opinion written by Justice Cynthia D. Kinser, the Virginia Supreme Court said, "We cannot say that Atkins' sentence to death is excessive or disproportionate to sentences generally imposed in this Commonwealth for capital murders comparable to Atkins' murder of Nesbitt."

The court continued, "We are not willing to commute Atkins' sentence to death to life imprisonment merely because of his IQ score."

Though Atkins' attorney raised the issue of whether the execution of someone with an IQ of 59 was cruel and unusual punishment under the 8th Amendment, the court cited the1989 U.S. Supreme Court opinion in Penry v. Lynaugh for the proposition that "the imposition of the death penalty on a mentally retarded defendant with the approximate reasoning capacity of a seven-year-old child does not violate the Eighth Amendment prohibition against cruel and unusual punishment solely because of the defendant's mental retardation."

The Virginia Supreme Court opinion also noted that the state argued that "the evidence was in conflict regarding the question whether Atkins is mentally retarded."

Two dissenters raised a more fundamental point. "By definition [retarded] individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way."

Since the U.S. Supreme Court's Penry decision in 1989, the number of states prohibiting the execution of the mentally retarded has risen from two to 18.

The last state to sign on, North Carolina, literally took another case involving execution of the mentally retarded out of the Supreme Court's hands.

Ernest McCarver, who was convicted in the 1987 stabbing death and robbery of Woodrow Hartley in North Carolina, was sentenced to death. At his sentencing hearing in 1992, McCarver was determined to have an IQ of 74.

When the North Carolina General Assembly began debate on a bill banning executions of mentally retarded people in February 2001, McCarver's lawyers had him re-evaulated, as his score fell within the margin of error for mental retardation. In the second test, McCarver scored only 67 -- within the range of mild mental retardation. Therein began a heated debate as to whether or not McCarver is mentally retarded. The Supreme Court accepted the case in March of 2001.

The case, however, was dismissed before it was ever heard when Gov. Michael Easley signed into law a bill that forbids the execution of those with mental retardation in North Carolina, thereby making the case before the Court moot.

McCarver's attorney, Seth Cohen, in an interview before the dismissal, said, "We are going to have to have another hearing no matter what because no court has determined whether or not [McCarver] has mental retardation."

In Atkins' case, Virginia's brief in opposition to the grant of certiorari before the U.S. Supreme Court asserted that the case has no merit because Atkins' claim is "jurisdictionally barred."

"Simply put, the Virginia Supreme Court never decided the 8th Amendment issue because it never was asked to do so," the brief stated.

In its brief, Virginia cited the testimony of Dr. Stanton E. Samenow, a forensic clinical psychologist, who disputes that Atkins is actually mentally retarded.

Dr. Samenow recognizes that Atkins' IQ is low enough to classify him as mildly mentally retarded, but notes that IQ is not the only factor that goes into such a determination. Samenow testified at trial, that based on Atkins' vocabulary and knowledge of current events, Atkins is of "at least average intelligence" and therefore, should be held accountable for his crimes, and can legally be subjected to the death penalty. Samenow testified that Atkins knew John F. Kennedy was president in 1961 and used "sophisticated words," such as "orchestra," "decimal" and "parable."

The forensic psychologist testifying for the defense, Dr. Evan Stuart Nelson, said at trial that Atkins' low IQ and "inability to function independently as compared to the norm the persons the same age" classified him as mildly mentally retarded.

Since 1976, 35 mentally retarded people have been executed, according to the Death Penalty Information Center, a nonprofit group that advocates against the death penalty. Of those 35, four took place in Virginia.

On Sept. 25, 2001, the U.S. Supreme Court granted certiorari in Atkins' case. The same day, six days before the Court's 2001-02 term, the Court dismissed the appeal in McCarver v. North Carolina.

On June 20, 2002, the Court issued its landmark decision, ending capital punishment in the United States for the mentally retarded.

The 6-3 decision held that executing mentally retarded criminals was unconstitutional because a developing national consensus viewed it as cruel and unusual punishment.

Justice John Paul Stevens wrote the majority opinion. Chief Justice William Rehnquist dissented along with Justices Antonin Scalia and Clarence Thomas.

The opinion reversed the Court's 1989 decision in Penry v. Lynaugh, in which the Court ruled that executing mentally retarded defendants was not a violation of the 8th Amendment, which prohibits excessive punishment.

Stevens also quoted Chief Justice Earl Warren, who wrote in 1958 that, "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

In Penry, Stevens wrote, the Court decided there was not a national consensus against executing the mentally retarded. At that time, Texas, Georgia and the federal government prohibited executing the mentally retarded.

Since then, Kentucky, Tennessee, New Mexico, Arkansas, Colorado, Washington, Indiana, New York, South Dakota, Arizona, Connecticut, Florida, Missouri, North Carolina and Texas have passed legislation barring the execution of mentally retarded criminals, Stevens wrote.

"It is not so much the number of these States that is significant, but the consistency of the direction of the change," Stevens wrote. "Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal."

In his dissent, Scalia tore into this assertion. "The bare number of States alone – 18 –should be enough to convince any reasonable person that no ‘national consensus' exists," he wrote. "How is it possible that agreement among 47 % of the death penalty jurisdictions amounts to a ‘consensus?'"

Scalia wrote that the standards the Court usually uses to determine if there is a national consensus against a punishment have historically been much higher. It once ruled that 11 of the 37 death penalty states did not constitute a national consensus, Scalia wrote.

He also questioned the Court's assertion that mentally retarded criminals are less culpable than run-of-the-mill criminals. He wrote, "Is there an established correlation between mental acuity and the ability to conform one's conduct to the law in such a rudimentary matter as murder?

"The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society's moral outrage sometimes demands the execution of retarded offenders," Scalia also wrote.

"Seldom has an opinion of this Court rested so obviously upon the personal views of its members," Scalia concluded.