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August 28, 2010

Pennsylvania still trying to decide how to implement Atkins

This local article details that, nearly a decade after the SCOTUS Atkins decision making mentally retarded defendants ineligible for execution, Pennsylvania is still trying to decide how to implement the ruling.  The piece is headlined "Should a jury or judge determine whether a murderer is mentally retarded?," and here are excerpts:

Eight years ago, the U.S. Supreme Court ruled that a murderer who is mentally retarded cannot face the death penalty because it's cruel and unusual punishment. But the ruling allowed states to decide how to handle such cases, and in Pennsylvania, officials are still debating whether a judge or a jury should determine whether a defendant is mentally retarded.

State senators voted 45-2 last year in favor of a bill that would allow a judge to determine whether a defendant is mentally retarded before a trial begins. The House Judiciary Committee is now debating the issue.

In the community, prosecutors, defense attorneys and advocates for the mentally disabled differ on whose role it is to make the call. Some cite financial concerns as part of their argument. Local defense attorney Jeffrey Marshall, who is certified to handle death-penalty cases,

said he sees it as an eligibility issue and thinks a judge should make the decision before trial. It's similar to a judge determining whether a defendant is competent to stand trial. "I see it as a separate issue," Marshall said.

Otherwise, a jury would have to make the determination after the defendant is found guilty of first-degree murder. He questioned whether the jury would have a separate hearing on the issue before considering the aggravating and mitigating circumstances for the death penalty phase....

Others, however, think a jury should determine whether a murderer is mentally retarded. The Pennsylvania District Attorneys Association is one. "We have a strong tradition in Pennsylvania in putting our faith in juries, and they have served us well for over 200 years," executive director Richard Long said.

Juries listen to the evidence and make difficult decisions -- including whether a defendant is guilty -- and they do it well, he said. It's an "elitist move" to say that a jury is not capable of coming to a proper decision, Long said.

Of course, as highlighted in this AP article, which is headlined "Pa.'s death penalty exists in name only," it is not clear whether any Pennsylvania capital defendant will face the prospect of execution anytime soon.

August 28, 2010 at 11:33 PM | Permalink


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1) The IQ test was designed to predict school performance. It is validated only for that purpose. Its use for any other violates Daubert. The developers would be appalled by this anti-scientific misuse of their instrument.

2) The definition of MR is no longer one of a single test score. It is more functional, across several areas of function. A jury is better qualified to judge the nebulous concept of function, than a judge. The latter is likely to have been a bookworm nerd, with retardation in social function.


3) Atkins began in the drug business at age 9. What were the Justices doing at age 9? He lured an adversary into a location and shot him. With their lawyerly skills, could the Justices ever achieve such deception? Given his lucrative business, he had no time for school. It would cost too much lost wages to attend. As time passes, educational training affects the IQ. For example, as Japanese education has become more rigorous the IQ increased by 10 points over its average obtained after the end of WWII. The average Japanese IQ is now 110. It is impossible for the gene pool to change in such a short time. The increase came from education. Atkins appears to have had superior social functions.

4) That being said, someone with a low IQ who kills is more dangerous than someone with a high IQ. The low IQ is a mandate to execute for the safety of the public. The IQ in prison, a warehouse for repeat offenders, is 85. Mental retardation should be an aggravating factor. Because black folks carry a six fold higher burden of murder victimization, Atkins represents another instance of the devaluation of the black murder victim by a racist white lawyer hierarchy.

5) Since this case was decided, Atkins has been spending a lot of time with his lawyers. As a result, his IQ performance is now normal. He is no longer retarded in his score. He developed a fancy vocabulary, and glibness. This is an anecdotal but significant discovery. Hanging out with lawyers will add 15 points to the IQ. If this effect holds up in duplication research, all MR students should be assigned to a law firm for their education.


6) This decision is additional evidence that the Justices are lawyer dumbasses.

Posted by: Supremacy Claus | Aug 29, 2010 10:16:20 AM

Doug, since Mental Retardation is a constitutionally compelled complete bar to exposure to the death penalty, I believe it is necessary for the Eighth amendment issue to be resolved by a judge prior to the trial.

First, how am I supposed to advise a client whether or not he should accept a plea offer from the state to take a life sentence unless I know whether or not that is the worst thing that can happen or whether he might get death if he went to trial?

Second, I believe the death qualification process during jury selection, culling jurors who are opposed to the death penalty, results in a jury prone to conviction, and if the def is mentally retarded there is no reason to death qualify them.

I think it also infringes on the juror's right to sit on a jury to be disqualified from jury service due to their death views, pro or con, when the case may later become noncapital because of MR

Since MR is a constitutional, as opposed to state statutory, bar, I believe judges must have the final say on whether a defendant is eligible for death. Otherwise, we have juries determining constitutional questions, which is rather odd. I realize there may be aspects of the issue which could be considered factual, like existence of adaptive skills deficits, but the ultimate issue is legal.

You know me. I believe there is an Apprendi issue behind every bush, (because there is an Apprendi issue behind every bush), and one exists here too. Apprendi is very much about the right of a def to know what is the worst possible punishment he faces before walking into the courtroom, so he can know whether he should go to trial or plead to something. I currently have pending a cert petition in SCOTUS in a case in which the def was charged with murder and we are contending that the judge used the wrong standard, clear and convincing evidence instead of preponderance of the evidence, to determine MR. The DA said he would pull the life offer off the table if we went to trial, so I pleaded and then certed the issue up, arguing it was in involuntary plea because we didn't know before trial whether the def was eligible for death or not. If not, I surely would not have advised him to take life without parole.

I'll send you the cert petition and you can share it with the list if you want.

bruce cunningham

Posted by: bruce cunningham | Aug 29, 2010 3:07:52 PM

Bruce: This is absolutely not personal. It is a policy question. Please, do not feel offended because I have no intent to offend. I greatly respect you and what you do, your great skill, however much we disagree.

Was the murder victim black?

Posted by: Supremacy Claus | Aug 29, 2010 3:54:53 PM


Posted by: bruce cunningham | Aug 29, 2010 6:44:03 PM

In order to not give a discount to the murderers of black victims, 95% being black themselves, the definition of MR should be 15 points lower in this case, IQ=<55, not IQ<70. The average IQ of blacks is 85, and an IQ<70 cutoff is only one standard deviation from their mean, instead of the required 2 standard deviations. That means 16% will be mistakenly labeled as having MR, instead of 3%, which is the fraction with a score 2 standard deviations from the mean. Blacks with IQ's of 70 certainly do not appear mentally retarded. Just the opposite, they are surviving in tough neighborhoods. When it comes to the death penalty, 5 times as many murderers will be DP disqualified compared to the murderers of white victims. This is wrong, scientifically, morally, and at the criminal policy level.

The IQ test was banned due to this racial effect as a tool to qualify students for a benefit, special education. The Supreme Court refused to review that appellate decision, thus it still stands. IQ should not be used to exclude the death penalty, a detriment to the black murder victim. The entire IQ difference is explained by the anti-education trash culture of the American South. Far darker skinned Africans and Caribbeans have average IQ's of 100, not 85. Our American South blacks are not even black. They are half white in the overwhelming majority. Race has no verifiable measurement. It is a type of myth, like most of the core doctrines of the law. Not a fact in nature.

How did the Supreme Court push the criminal law into this swamp? Simple. All together now. Lawyer dumbasses.

Posted by: Supremacy Claus | Aug 29, 2010 7:56:36 PM

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