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April 6, 2009

Should Atkins impact non-capital sentences for mentally retarded defendants?

This article in the Chicago Tribune, headlined "Mentally retarded Texas teen serving 100-year prison term for sex assault of boy: He admitted assaulting 7-year-old, but his retardation was not considered," raises interesting and important questions as to whether and how mental retardation ought to limit non-capital sentencing outcomes. Here is how the article starts:

The crime Aaron Hart confessed to was undeniably repellent.  Last September, the 18-year-old man was charged with sexually assaulting a 7-year-old neighbor boy behind a tool shed in the small east Texas town of Paris.  A relative of the victim said she walked outside and saw Hart with his pants pulled down, standing next to the boy.

Police read Hart his Miranda rights and he quickly admitted his guilt.  On Feb. 11, Hart's court-appointed attorney entered guilty pleas to each of five related felony counts, a jury recommended multiple sentences and a judge then ruled that the prison terms be served consecutively, for a total of 100 years.

That might have been the end of Cause No. 22924 in the 6th Judicial District Court of Lamar County, Texas — just another dismal criminal case on the docket of an obscure town.  Except that now, less than two months after Hart was sentenced, every court official who had a hand in the case seems to agree that he doesn't really belong in prison for what amounts to the rest of his life.

That's because Hart is profoundly mentally retarded.  He has an IQ of 47, and his parents say he functions at the level of a 9-year-old.  The boy he confessed to molesting is mentally retarded as well.

What's more, the judge and the jury never heard any expert testimony about Hart's diminished mental functioning, his capacity to understand his Miranda rights or his ability to assist in his own defense, because his defense attorney never subpoenaed any experts.

And since he has been in jail, Hart himself has been repeatedly raped, according to his parents. The first assault, allegedly by an inmate who is serving a far shorter sentence of just 8 years for sexual indecency with a child, so disturbed the alleged rapist's mother that she called Hart's parents to apologize.

As all Eighth Amendment fans know, the Supreme Court declared in Atkins that the Constitution prohibits states from seeking the death penalty against murderers who are mentally retarded.  This case raises the interesting and important question of whether and how Atkins ought to cross over to the non-capital sentencing universe.

April 6, 2009 at 11:06 AM | Permalink


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This sounds more like a garden variety ineffective rep claim than anything else. The reality is that, even if extending Atkins were theoretically justified, the system is simply not going to be required to expend the resources to do this.

Obviously, this is a sad case, and the defendant here clearly needs the protection of the jailers, which he may not be getting.

Posted by: federalist | Apr 6, 2009 12:28:55 PM

With an IQ of 47, it is highly unlikely that he was competent to undergo criminal proceedings. Pegging his functioning at 9 is probably far too optimistic.

Posted by: John Minock | Apr 6, 2009 1:29:30 PM

That being so, who in this great machine of American Justice, can save this young man from a living hell that he could not possibly deserve on this earth?

Posted by: peter | Apr 6, 2009 2:49:08 PM

We'll see, peter. Let's not jump to conclusions, although the rape allegations are very very troubling.

Posted by: federalist | Apr 6, 2009 3:11:56 PM

what about extending to the psychologically impaired, including those with neurological issues?

Posted by: mf | Apr 6, 2009 3:26:28 PM

"This sounds more like a garden variety ineffective rep claim than anything else."

I agree with this. I'm not sure how or why the rest plays into it. I can't imagine there is any logical reason why a competent defense attorney would fail to bring an IQ of 47 to the Court's attention. I doubt that his IQ changes his legal guilt at all, but it certainly would change the length of his sentence and how and where he was imprisoned.

Posted by: Daniel | Apr 6, 2009 3:47:16 PM

But Daniel, that's not as sexy as making the Atkins argument . . . .

But Doug's not really known for being circumspect in his blog . . . .

Posted by: federalist | Apr 6, 2009 3:55:34 PM

Atkins should not apply to Atkins. First, the definition of MR is no longer an IQ less than 70. It is more functional. Someone scores a low number on a test. Someone runs a drug business from age 9, and does not attend school. Time is money, and time spent in school would cut into profits greater than that of most people here. I invite the Justices to survive in that neighborhood for more than a short time to appreciate the competence of Atkins.

He hung around with a lot of lawyers. As a result his language skills have markedly improved. Even on the IQ test, he now qualifies for the death penalty. He discovered a superior form of special ed. Hanging out with lawyers. We should send all people with MR to lawyers' offices for remediation.

Rape was not part of the sentence of the defendant above. The prison has total control of his body, thus is responsible for his extra-judicial punishments, in the form of physical and sexual abuse. I would support a lawsuit against the prison for this defendant's injuries. He should be in prison, but safer. If one of the rapists were a murderer with LWOP, all rapes are immunized by the criminal lover lawyers. If I were the victim of rapes, I would name the judge and the attorneys for negligent failure to sentence the rapist to death.

I suggest, One-Two-Three-Dead in prison, and solve the prison crime problem by attrition. The deceased have a low recidivism rate.

Posted by: Supremacy Claus | Apr 6, 2009 6:26:23 PM

Supremacy: Atkins is, of course, taken as a given. Wrong as it is, and it is wrong, that's not the point.

I agree with you that a person with LWOP doesn't have a ton of incentive not to rape (other than being sent to the hole).

Posted by: federalist | Apr 6, 2009 7:08:13 PM

Here is the modern view of MR, including a repudiation of reliance on a test score.


If a decision is based on a false fact, it should be reversed, by even the same court. Congress uses the SC as a running dog, to take care of controversies it does not want to touch.

Posted by: Supremacy Claus | Apr 6, 2009 9:00:03 PM

federalist: Don't wimp out on us now. Child molestation is child molestation. If people don't want to get raped in prison, they shouldn't molest children. It's easy. As far as the IQ thing goes, how smart do you have to be to know not to molest children? If we allow this Aaron Hart guy to drive, vote, or own a gun, then he knows enough to follow the law.

If we acquiesce to the proposition that correctional officers are there for the protection of the prisoners, there's no telling where the mollycoddling will end. Obama and the Democrat congress will no doubt have a federal program to bring mentally retarded little boys directly to the prison cells of people like Hart for their amusement.

You can't spell "ammonium nitrate" without "ammo", so stock up on both and be ready for the Tea Party that will cast out the Black Panther Muslim terrorist atheist socialist-in-chief and elevate true America-loving patriots like Todd and Sarah Palin.

Posted by: fair_and_balanced | Apr 7, 2009 7:19:24 PM

Why does fed feel the need to ghost here?

Posted by: Mark#1 | Apr 7, 2009 10:53:04 PM


I resent the implication. I manifestly am not federalist. (Ask Prof. Berman to check our respective IP addresses if you doubt me.) I am simply one of a growing silent majority of Americans who have grown sick of the excesses of our extreme whackjob left-wing government, under which we have suffered far too long.

Maybe you just have trouble grasping the strength of our fast-growing, God-fearing, CBF-honoring invisible empire. We tolerated the dirty hippies fornicating in the streets in the '60s, but now those hippies have gotten old and impotent and want to take all our money so they can redistribute it to Jerry Rubin and Bernie Madoff. We will not be kept down any longer.

Join us and be on the right side of history.

Posted by: fair_and_balanced | Apr 8, 2009 12:51:53 AM

Click on my name/url for update on this case.
"Pais, Texas, Judge denies new trial or new sentencing hearing"

Hart will remain in jail pending the outcome of an appeal likely to be heard in the fall. Hart's parents say he has been raped repeatedly by other inmates since he was first arrested last September.

Posted by: peter | Apr 8, 2009 5:08:40 AM

Rape is not part of a sentence for a criminal act. It is not acceptable for inmates to be raped in prison. Given the facts reported, Mr. Ward may not be even criminally liable for his actions, which makes his alleged victimization that much worse.

In any event, I get that prison rape victims aren't the most sympathetic characters, but if the prison system tolerates such abuse it is sending a message to people that it wants to rehabilitate that might makes right. That's not a message I particularly want sent to prisoners who may get out. And this is not to mention the spread of disease etc.

I cannot speak for all "tough on crime" folks in here, but I'd hazard to guess that most of us probably have some sympathy for this guy and are wondering whether a life sentence in a Texas prison is the appropriate sentence for this man. Most "tough on crime" folks, I suspect, come to that viewpoint because we understand that criminals make a moral choice to harm others and that's what makes them blameworthy. Taking the news report as true, it's at least debatable whether Mr. Ward is morally blameworthy for the offense.

Posted by: federalist | Apr 8, 2009 9:39:09 AM

For the sake of some rational perspective here, I have a case with a client with IQ scores several points higher than Mr. Hart. According to our psychologist, a retired from the state's Center for Forensic Psychiatry, my client tests lower than 0.1 percentile of the population. For example, my client cannot not state his age, his birthday, the month, date, or day of the week or month, make change, or name his lawyer, much less comprehend or remember legal concepts.

Posted by: John Minock | Apr 8, 2009 12:29:16 PM

Federalist wrote: "Most "tough on crime" folks, I suspect, come to that viewpoint because we understand that criminals make a moral choice to harm others and that's what makes them blameworthy."

Why do you think black people make more immoral choices than white people?

Posted by: DK | Apr 8, 2009 8:14:12 PM

DK, did you get dropped on your head as a child?

Posted by: federalist | Apr 9, 2009 9:44:12 AM

John Minock, Er, testing lower than 0.1 percent of the population puts him in 99.9th percentile, which would be a very *high* IQ. Being in the 0.1 percentile means he would test lower than 99.9% of the population, which is what I am guessing you meant. ("Percentile" isn't quite the term to use when subdividing a percentile by tenths as is done here, but I don't know the correct term, if there is one.)

Posted by: fair_and_balanced | Apr 9, 2009 8:27:42 PM

Well, I'm totally disgusted that none of you thought to apply our Rule of Law to this case. And this is supposed to be a lawyers blog site. Well, crack open those book legal eagles, because, there is something everyone seems to be missing, including the Supreme Court! The pertinent point is framed around this phrase: Cruel and Unusual - this is a constitutional point that should absolutely prevent anyone like Aaron Harte to go to prison. Even historically, guys like Aaron were not punished, because back then people apparently had more common sense. For you, Mr. Conservative that somehow thinks this situation is fine and dandy, let me remind YOU that TRUE CONSERVATISM lies in small government and real freedom. Certainly it has nothing to do with putting a mentally retarded individual to be raped. The judge, the lawyer and the sheriff have all broken their respective oaths and, in my opinion, need to be charged criminally and be sent to jail to share a cell with Big Bubba.

Posted by: elizabeth | Apr 25, 2009 3:22:13 AM

Well, now that I'm on a roll and you folks are quite frankly dead from ___ up, I thought I mention the fact that most crime should not have prison as a consequence. Imprisoning people for supposed crimes that are not violent is insanely stupid. Have them be contributing members of society makes far more sense, UNLESS you like to control and bully people. Perhaps some of you do, after all, our current justice system is filled with people like that and at this point this system fails to promote the concept of justice in its entirety. It is a system that is in dire need of being overhauled, to have real programs of prevention, to have community service be the major sentence of most crimes. Have Madoff serve those he ripped off. The punishment would fit the crime. Prisons and those that feel the need to figure out sentencing promote a really sick and screwed up fascist mentality that resolves nothing and drags our entire society down. It doesn't build people up, it tears them down. Most criminals are made, from our lousy and crappy institutional screwed up systems, starting with public education that is abusive by its very philosophy. They let millions of children fail, allowing this with no feeling. Many of those children that fail end up in our prison system because they become unable to cope with their terrible economic reality. They end up living in a situation of total hopelessness and despair. Before any of you sneer, allow me to tell each and everyone of you that you could be in a similar situation in the not so distant future. What will desperation bring? Could you possibly end up in a legal problem because of that situation? Certainly you could and probably will. So, maybe now is the time to start acting a bit more like human beings rather than spouting the gibberish I felt forced to read. The vast majority of you don't even understand the word compassion. I'm sure many of you were spoiled as children and further, couldn't and wouldn't truly sacrifice of yourselves for anyone. This is probably why so many jokes are made about those in the legal profession - after reading where your minds are at, those jokes are quite appropriate.

Posted by: elizabeth | Apr 26, 2009 3:06:04 AM

I am a student, by the way, and am grossed out by the total lack of decency that I see on this blog. There really is such a thing as failing as a human being, and I think many of you are on your way.

Posted by: elizabeth | Apr 26, 2009 3:08:21 AM

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