Atkins v. Virginia - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 00-8452 Atkins against Virginia will be announced by Justice Stevens.

Argument of Justice Stevens

Mr. Stevens: Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crime.

Because of their disabilities in areas of reasoning, judgment and control of their impulses, however, they do not act with the level of moral culpability that charaterizes the most serious adult criminal conduct.

Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.

Presumably, for these reasons in the thirteen years since we decided the case of Penry against Lynaugh, the American public, legislators, scholars and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarted criminal.

The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are "cruel and unusual punishments" prohibited by the Eighth Amendment to the Federal Constitution.

This cames comes to us from the Supreme Court of Virginia. The petitioner Daryl Atkins was convicted of a particularly brutal crime, a capital murder.

At the penalty phase of his trial, an expert witness testified that Atkins is mentally retarded.

The expert's conclusion was based on interviews with people who knew Atkins, a review of court and school records and the administration of a standard intelligence test that indicated that he has an IQ of 59.

The jury nevertheless sentenced him to death.

On appeal to the Virginia Supreme Court, Atkins argued that he is mentally retarded and therefore the State may not execute him.

Relying on our holding on the Penry case, the State Court majority over the dissent of two members of the Court rejected this contention and affirmed the sentence.

The two dissenters argued that the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is accessive.

Because of the dramatic shift in the state legislative landscape that has occured in the past 13 years, we granted certiorari to revisit the issue that we first addressed in Penry.

We now hold that the Eighth Amendment prohibition against cruel and unusual punishment categorically forbids the execution of the mentally retarded.

Our analysis begins with the text of the Eighth Amendment which succinctly prohibits excessive sanctions.

We have read the text of the Amendment to prohibit all excessive punishment as well as cruel and unusual punishments that may or may not be excessive.

A claim that punishment is excessive is judged by the evolving standards of decency that marked the progress of a maturing society.

This inquiry is informed by objective evidence, most notably by recent legislative enactments.

In cases in which a consensus among the States has emerged, our own judgment is brought to bear by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

With respect to State legislation, we find that much changed in the 13 years since we decided Penry.

At that time, only two States had specifically addressed the precise issue and forbidden the execution of the mentally retarded.

Since then, however, 16 additional States have adopted the ban.

In other States bills have passed at least one House of the Legislature.

Moreover, in States that allow the execution of the mentally retarded the practice is not common.

Prior cases teach that we should focus our attention on statutes expressly addressing the relevant issue.

When we do so we find in the words of our opinion in Enmund against Florida that there is unquestionably consensus in the judgment of the legislatures that have recently addressed the matter.

For reasons stated in the opinion filed with the Clerk today, we agree with the consensus that has emerged.

The number of states that have addressed the issue is less significant than the consistency of their enactments and the direction of the change.

Given the well-known fact that anti-crime legislation is far more popular than legislation providing protections for persons guilty of violent crimes, the large number of states prohibiting the execution of mentally retarded person 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 offender as categorically less culpable than the average criminal.

Despite repeated dissents from members of the Court, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most culpable offenders.

The mental deficiencies that by definition characterize the mentally retarded categorically remove them from this group.

Executing the mentally retarded does not measurably further the goal of deterrence, moreover there is reason to be believe that the reduced capacity of mentally retarded offenders means that they face a special risk of wrongful execution.

In sum, construing and applying the Eighth Amendment in light of out evolving standards of decency, we hold that the Constitution places a substantive restriction on the State’s power to take the life of mentally retarded offender.

As we did in Ford against Wainwright with respect to the execution of the insane, we leave to the states the task of developing appropriate procedures to enforce these substantive constitutional restrictions.

The judgment of the Virginia Supreme Court is therefore reversed and the case is remanded for further proceedings not inconsistent with this opinion.

The Chief Justice has filed a dissenting opinion which Justices Scalia and Thomas have joined and Justice Scalia will announce his own dissent.

Argument of Justice Scalia

Mr. Scalia: I have filed a dissent in this case which has been joined by the Chief Justice and by Justice Thomas.

It should not be thought that this case involves the question whether mental retardation should be taken into account in determining whether a defendant receives the death penalty.

Our case law requires that the sentencer be permitted to consider it, and it was considered in the present case, in fact, it was the central issue at the sentencing here.

But the jury either did not believe that the defendant was retarded -- there was conflicting evidence on the point -- or believe that if he was, he was so mildly retarded that it should make no difference in the sentence.

What today’s opinion says is that if the issue of retardation is decided in favor of the defendant.

If it is found that he scores 59 on state scale that makes 60, the lowest grade for non-retarded he cannot receive the death penalty no matter how many people he tortured to death, no matter how much the jury believes he knew precisely what he was doing.

The constitution does not require that result.

Under this Court’s Eighth Amendment jurisprudence, a punishment is cruel and unusual if it falls within one of two categories: First, punishment that would have been considered cruel and unusual at the time that the Bill of Rights was adopted, and second, punishment that is inconsistent with modern standards of decency as evidenced by objective indicia, the most important of which is legislation enacted by the country’s legislature.

As to the first of these two, the Court makes no pretense that execution of the mildly mental retarded would have been considered cruel and unusual in 1791, only the severely retarded were spared conviction and execution then as they are now.

The Court instead believes that recent State legislation evidences a national consensus against execution of even the mildly retarded.

The Court extracts this national consensus from the fact that 18 states, less than half, 47% to be precise of the 38 states that permit capital punishment for whom the issue exists, have very recently enacted legislation barring execution of the mentally retarded.

The Court discerns in other words a 47% consensus.

Even that 47% figure is artificial.

One of the states that numbers among the 18 does permit the mentally retarded to be executed for murder in prison, another of them excuses only the severely retarded and 11 of the 18 states that the Court relies on have prohibited execution of mentally retarded defendants convicted of crimes committed after the effective date of the legislation.

Those who are already on death row or consigned there before the statute’s effective date or even in those states using the date of the crime as the criterion of retroactivity, those tried in the future for crimes committed murders committed years ago can still be put to death.

That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches.

As for the Court’s assertion that the number of states involved in the consensus is not as significant as the trend, what other trend could there possibly have been?

14 years ago, every state permitted execution of the mentally retarded.

The only direction in which there could have been a trend is in the direction of forbidding it unless, of course you expect states to reverse course within the short period of 14 years, because the oldest of these statutes is that old.

In other words, to be accurate the Court’s consistency of trend point should be recast into the following unimpressive observation.

No state has yet undone its exemption of the mentally retarded one for as long as 14 whole years.

Among the 18 states, as I mentioned the oldest of the statutes is 14 years old, five were enacted last year, over half were enacted in the past eight years.

Few if any of the states have had sufficient experience with these laws to know whether they are sensible in the long run but today’s opinion converts those experiments into permanent and inalterable requirements.

Beyond the empty talk of a national consensus, the Court gives us a brief glimpse of what really underlies today’s decision.

The constitution, the opinion says “contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.”

The unexpressed reason for this unexpressed contemplation of the constitution is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.

This raw assumption of power explains, of course, why the Court can be so cavalier about the evidence of consensus.

Because in the end it is the feelings and intuition of the majority of the justices that count, the perceptions of decency or penology or of mercy entertained by a majority of the small and unrepresentative segment of our society that sits on this Court.

The Court makes several assertions that execution of the mentally retarded is irrational because it does not advance the purposes of criminal punishment.

Those assertions are mistaken as my opinion discusses.

In the last analysis that is relevant.

The principal question is who is to decide whether execution of the retarded is permissible or desirable, the justices of this Court or the traditions and current practices of the American people.

Today’s opinion says very clearly the form.

Today’s decision promises to be very effective in turning the process of capital trial into a game.

One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association which are set forth in the Court’s opinion to realize that the symptoms of this condition can readily be feigned.

And whereas the capital defendant who feigns insanity and other basis for being excused from that punishment, whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured and then tried and executed.

The capital defendant who feigns mental retardation risks nothing at all.

To my mind nothing has changed the accuracy of Matthew Hale’s endorsement of the common law’s traditional method for taking account of guilt-reducing factors written over three centuries ago.

“Determination of a person’s incapacity due to insanity or mental retardation is a matter of great difficulty; partly from the easiness of counterfeiting this disability and partly from the variety of the degrees of this infirmity whereof some are sufficient and some are insufficient to excuse persons in capital offenses, yet the law of England had afforded the best method of trial that is possible.

Of this and all other matters of fact namely by a jury of 12 men all concurring in the same judgment by the testimony of witnesses and by the inspection and direction of the judge."

There is nothing in the Eighth Amendment that requires the American people to abandon this century’s old common law practice if they wish as the statistics indicate they do wish to retain it.