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April 10, 2007

More federalism in administering Atkins

When the Supreme Court declared in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibited the execution of mentally retarded offenders, the Court punted all tough administrative issues by leaving to the states "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."   Years later, as detailed in posts here and here, states have developed, and struggled with, a wide array of "ways to enforce the constitutional restriction" on executing mentally retarded offenders.

In Texas, as detailed in this Amnesty International release, the state legislature has never enacted a law to comply with Atkins.  The Texas Court of Criminal Appeals in early 2004 developed "temporary judicial guidelines" for trial courts making retardation determinations.  Those guidelines have not helped death row defendant James Lee Clark, who has considerable medical support for his claim that he is retarded, but still is slated to be executed tomorrow.  (As an interesting footnote, Clark's execution will mark the 152nd Texas execution since Rick Perry became governor in 2001, which is the exact number of executions George Bush oversaw in his five years as governor.)

Meanwhile, Ohio has also administered Atkins through judicial rulings, but it seems that Ohio courts tend to apply the state's MR standard in a more defendant-friendly manner.  Specifically, as detailed here at ODPI, a state common pleas court has recently ruled that an Ohio death-row defendant satisfied the three-prong test for establishing retardation in Ohio based on medical evidence not much different than has been presented by James Lee Clark.

April 10, 2007 at 01:36 PM | Permalink


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From the Fifth Circuit opinion in this case, it appears that the state courts had a sound basis for concluding that Clark is not, in fact, retarded.

The problem is inherent in Atkins itself. You can't draw a sharp line with a dull crayon. The concept of retardation is necessarily vague at the border, and there will always be room for disagreement at that border.

Penry had it right the first time. If the defendant is mentally slow, let the jury weigh that as a mitigating circumstance without drawing arbitrary lines in what is really a continuum.

Posted by: Kent Scheidegger | Apr 10, 2007 1:55:25 PM

These tests baffle me -- many include that the defendant must prove onset of mental retardation before the age 18. Thus, if you suffer an injury that leaves you mentally retarded at the age of 25, you don't meet the definition. If the underlying premise here is that the mentally retarded cannot understand death, this onset prong makes no sense. While it may alleviate concerns over malingering, it seems fairly arbitrary.

I guess this area of the law chalks another one up for "death is different." The defendant can understand right from wrong, but not the extent of the punishment. He can understand being locked in a cage for the remainder of his life as an acceptable punishment for his action, but somehow cannot comprehend being put to death for those actions? Gotta love the Court for making moral judgments for everyone...

Posted by: LonesomeClerk | Apr 10, 2007 1:58:19 PM

"Thus, if you suffer an injury that leaves you mentally retarded at the age of 25...."

No such thing. A brain injury may leave a person impaired, but that is not mental retardation as defined long before Atkins.

"If the underlying premise here is that the mentally retarded cannot understand death...."

No, that is not the premise. You are apparently confusing Atkins with the Ford competence for execution issue. Stay tuned for Panetti on that point.

Posted by: Kent Scheidegger | Apr 10, 2007 2:20:43 PM

From a psychological test perspective, impairment would meet the test -- brain damage from traumatic events can unquestionably lower one's IQ and adaptive function -- the two primary prongs of determining retardation following Atkins -- thus to say impairment can't equal retardation is misleading.

Is the government going to argue that, yes, he's more than 2 standard deviations below the norm on IQ, substantially deficient in adaptive skills, but those are the result of an "impairment" and thus he's not mentally retarded?

Finally, I would question what the underlying premise is if not the above -- the Atkins Court seemed to focus on the so-called "trend" among several states to ban execution of the mentally retarded. If those bans are not based upon some type of recognition that the mentally retarded are either less culpable or less capable of understanding punishment, what are they based upon?

Posted by: LonesomeClerk | Apr 10, 2007 2:28:34 PM

I think the government is arguing in Clark that the guy is a malingerer (i.e. feigning retardation). Here's a modest proposal--if a convict is a malingerer (with a clear and convincing standard of proof), he forfeits all federal habeas rights and Section 1983 rights with respect to his conviction and/or sentence.

Lonesome, while I think you make a good point, I think that Kent's right from a legal perspective. In Atkins, the Court did more than constitutionalize an IQ test, it constitutionalized the APA's clinical definition, which picks up the adaptive behavior before 18 years of age test. Thus, theoretically anyway, we could execute someone less capable than a mentally retarded killer who is ineligible for death.

In the state-cannot-execute-juvie-killers-because-it-cannot-deprive-them-the-right-to-be-all-that- they-can-be world of capital punishment "jurisprudence", one should not be surprised at what the Court comes up with.

Posted by: | Apr 10, 2007 3:01:28 PM

I fully understand the onset prong was established well-before Atkins and merely adopted, but I cannot for the life of me understand it -- the entire Atkins decision details how the mentally retarded are less culpable because of their inability to process certain thoughts and actions -- why on earth does it matter if the retardation was caused by something like fetal alcohol syndrome or a horrific car crash at the age of 22?

Posted by: LonesomeClerk | Apr 10, 2007 3:15:20 PM

It matters because the Eighth Amendment bans cruel and unusual punishments, and what is cruel and unusual depends on a consensus of states, and the consensus of states followed the APA.

Now that's arbitrary--Supreme Court sanctioned arbitrariness is kosher, though.

Posted by: federalist | Apr 10, 2007 3:36:17 PM

S.cotus--assuming you agree with my analysis, would you mind filling in the cites for me. Thx.

Posted by: federalist | Apr 10, 2007 3:55:55 PM

Where does the APA come into this?

Posted by: S.cotus | Apr 10, 2007 8:20:18 PM

The American Psychiatric Association publishes the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, a/k/a the DSM-IV, containing criteria for diagnosing mental disorders, including retardation. For better or worse (and the DSM certainly has its critics), these are the most generally accepted criteria.

Posted by: Kent Scheidegger | Apr 10, 2007 8:59:15 PM

Oh, the DSM. I thought people were talking about MD's virtual end to the DP based its little APA. Sorry, I have no views on this.

Posted by: S.cotus | Apr 10, 2007 10:00:00 PM

". . . why on earth does it matter if the retardation was caused by something like fetal alcohol syndrome or a horrific car crash at the age of 22?"

The problem is that the Supreme Court borrowed a diagnostic category that is inappropriate for its purposes. The DSM authors intended the MR criteria (including onset before age 18) to identify people who could be helped by particular interventions--special ed classes, counseling, etc. The criteria are not at all concerned with culpability, or with any other legal contructs, for that matter.

Posted by: katie | Apr 11, 2007 10:29:50 AM

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