In 2002, in the landmark decision Atkins v. Virginia, SCOTUS held that it was a violation of the 8th Amendment to execute a mentally retarded individual. In a beautifully succinct opinion, Justice Stevens (Kagan? Kagan who?) wrote for a 6-3 majority that the 8th Amendment’s ban on cruel and unusual punishments prohibited the execution of the mentally retarded. In that opinion, he noted a movement in state legislatures toward banning the execution of those who are mentally retarded:
The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia apparently led to the enactment of the first state statute prohibiting such executions…
Georgia, once at the forefront of radical movements in the criminal justice system, is now floundering at the bottom. Yesterday, the GA Supreme Court upheld [pdf] the constitutionality of a statute that requires defendants to prove beyond a reasonable doubt that they are, in fact, mentally retarded. In a decision that is short on logic or reasoning and long on law-and-order-fed-vengeance, a 6-1 majority relied – I kid you not – on the fact that SCOTUS, in Atkins said nothing negative about GA’s burden of proof. Don’t believe me? Here:
In Atkins, the Supreme Court praised Georgia as being the first state in the nation to have banned the execution of mentally retarded persons, and the Supreme Court made no negative comment about Georgia’s heightened burden of proof, but instead counted Georgia among the states forming the national consensus about the treatment of mentally retarded defendants.
Georgia, among other states with heightened standards for defining and proving mental retardation, was counted by the Supreme Court as being part of the national consensus regarding the treatment of mentally retarded defendants, and it seems to us entirely illogical that Georgia could have been a part of the consensus dictating a categorical rule and yet somehow simultaneously in violation of that rule.
(Emphasis in original.) Justice Melton, who authored the 6-1 GA decision, seems to have a massive reading comprehension problem. Atkins was a decision about whether the practice of executing mentally retarded people violated the Constitution, and to that extent the Court’s praise (such as it was) of the Georgia statute was warranted. What the court in Atkins was not deciding was the burden of proof required to find that a defendant is mentally retarded. But it gets worse. Here’s what Justice Stevens wrote:
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, 477 U. S. 399 (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id., at 405, 416-417.
Nowhere in Atkins does the Court say that a defendant must prove beyond a reasonable doubt that he is mentally retarded in order to save execution. The paragraph above and its mention of the definition of mental retardation stems from the large number of briefs submitted to the court by psychiatric organizations highlighting that mental retardation isn’t a definite concept that can be given a fixed number. While we may now generally use an IQ range of 70-75 to separate those who are “retarded” from those who aren’t, any reasonably-versed practitioner will tell you that that is not something that can be set in stone. Individuals with an IQ of 80 may well be mentally retarded. In that vein, make sure you read this terrific law review article on the challenges of implementing Atkins. Here’s an excerpt, which highlights the problem:
What is so striking about Atkins is that the Court was persuaded to adopt a per se rule exempting all persons with mental retardation from the death penalty based on diagnosis alone. This is all the more remarkable in light of the fact that the line between being mentally retarded and being of borderline intelligence is operationalized statistically by an admittedly arbitrary line on a bell curve representing performance on an IQ test two standard deviations below the mean. In short, the diagnosis of mental retardation is in large part a statistical construct.
As for Melton’s claim that since they were praised for being on the forefront of this change, they should be allowed to rest on their laurels? The dissent rips it to shreds.
It seems that Georgia is now the only state in the country that requires such an impossible burden. Of the 35 states that impose the death penalty (and thus prohibit the execution of the mentally retarded), 22 require proof by a preponderance of the evidence – a much, much lower standard. Four states require proof by clear and convincing evidence and the three States (*cough*Connecticut*cough*) have not yet articulated the standard, though I would be surprised if it were anything but preponderance here.
The dissent also rightly points out the import of the language in Atkins, that the highest burden of proof needs to be reserved for the determination of factual allegations and scientific diagnoses are by nature more fuzzy. To subject the interpretation of test scores, manifested symptoms and perceived cognitive difficulties to that high standard would only serve to ensure that a mentally retarded individual will be executed, thus clearly violating the Constitution.
Even more puzzling, to me, is the fact that it seems that Georgia has no standard for proving mitigation in capital cases. It seems that juries can decide to recommend a sentence of life for any reason whatsoever. In fact, one of the complaints [pdf] about Georgia’s capital system is that its jury instructions are so poorly crafted that juries are regularly misled: a full 62.2% of jurors surveyed in this study believed that the defense had to prove mitigating factors beyond a reasonable doubt, which is incorrect.
Think about that. Georgia defendants aren’t even required to prove ordinary mitigation factors. A defendant may get up and say “spare me, I’m left handed” and the jury can say “but we saw you writing with your right hand” and still decide, that because he’s left handed, they’ll spare his life. A defendant can claim to be the love child of Amelia Earhart and Britney Spears, and based on that that jury can spare his life. But if the defendant is mentally retarded and thus protected by the Constitution, he must prove it beyond a reasonable doubt?
That’s not only troubling, it is what I call retarded. I think it’s about time Georgia got its own category on this blog.