Virginia State Crime Commission's Recommendations on Mental Retardation in Capital Trials, Study Guides, Projects, Research of Criminal Justice

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REPORT OF THE

VIRGINIA STATE CRIME COMMISSION

Atkins v. Virginia

A STUDY TO THE GENERAL ASSEMBLY OF

VIRGINIA

COMMONWEALTH OF VIRGINIA

RICHMOND

JANUARY 2003

I. Authority

The Code of Virginia , §30-156, authorizes the Virginia State Crime Commission to study, report and make recommendations on all areas of public safety and protection. Additionally, the Commission is to study matters “… including apprehension, trial and punishment of criminal offenders.” Section 30-158(3) provides the Commission the power to “… conduct studies and gather information and data in order to accomplish its purposes as set forth in §30-156.. .and formulate its recommendations to the Governor and the General Assembly.”

Using the statutory authority granted to the Crime Commission, the staff conducted a study on the U. S. Supreme Court’s decision in Atkins v. Virginia and the execution of the mentally retarded.

II. Executive Summary

The United States Supreme Court, in Atkins v. Virginia, ruled that it is a violation of the Eighth Amendment (cruel and unusual punishment) to impose a death sentence on someone who is mentally retarded. This decision explicitly overturned the Court’s 1989 ruling on this issue, and stated that, “As was our approach … with regard to insanity, ‘we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” Consequently, the Virginia State Crime Commission formed a legislative Sub-Committee to examine this decision and draft legislation to bring Virginia’s laws into conformity with this new constitutional mandate. Based upon the Sub-Committee’s work, the Virginia State Crime Commission adopted the following recommendations and drafted model legislation to encompass them.

Recommendation 1

Amend §18.2-10 of the Code of Virginia to specify that a person who is mentally retarded is not eligible for the death penalty.

Recommendation 2

Amend the Code of Virginia to require the determination of mental retardation should be made by the jury as part of sentencing.

Recommendation 3

Amend the Code of Virginia to require the defendant bear the burden of proving his/her mental retardation using a standard of preponderance of the evidence.

IV. Background

The United States Supreme Court, in Atkins v. Virginia,^3 ruled that it is a violation of the Eighth Amendment (cruel and unusual punishment) to impose a death sentence on someone who is mentally retarded. This decision explicitly overturned the Court’s 1989 ruling on this issue.^4 In Atkins, the Court based its opinion on two main points.^5 First, the Court noted “the consistency of the direction of change” in the fact that a growing number of states have prohibited capital punishment for the mentally retarded.^6 Second, the Court made an independent evaluation that the mentally retarded have diminished capacities, and the justifications for capital punishment that exist for other defendants do not exist for the mentally retarded.^7

In examining the recent legislative trend of other states, the Supreme Court noted that in those states that currently have the death penalty; eighteen expressly prohibit the execution of the mentally retarded, as does federal legislation applicable to capital federal crimes.^8 Additionally, of those states that theoretically allow for the execution of the mentally retarded, some have not carried out an execution in decades,^9 and of those that do carry out regular executions, the execution of mentally retarded defendants is extremely rare.^10

In addition to this “national trend,” the Court discussed the general culpability of the mentally retarded, and how the usual justifications for the death penalty do not apply to them. In dicta, the Court stated that the mentally retarded can be criminally responsible and should be punished when they commit crimes. However, because of disabilities in reasoning, judgment, and impulse control, the mentally retarded act with lesser moral culpability.^11 While the mentally retarded may know the difference between right and wrong, they have “diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.”^12 The Court also discussed how the mentally retarded tend to be “followers rather than leaders,”

(^3) Atkins v. Virginia, 536 U.S. __, 122 S. Ct. 2242 (2002). Further cites will be to the Supreme Court

Reporter. (^4) Penry v. Lynaugh, 492 U.S. 302 (1989). (^5) “[W]e shall first review the judgment of legislatures that have addressed the suitability of imposing the

death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.” Atkins v. Virginia, 122 S. Ct. 2242, 2248 (2002). (^6) Atkins, 122 S. Ct. at 2249. (^7) Atkins, 122 S. Ct. at 2250-52. (^8) The states noted by the Supreme Court as expressly prohibiting the death penalty for the mentally

retarded are: Georgia, Maryland, Kentucky, Tennessee, New Mexico, Arkansas, Colorado, Washington, Indiana, Kansas, New York, Nebraska, South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina. Atkins, 122 S. Ct. at 2248. 9 The Supreme Court identifies New Hampshire and New Jersey as two such states. Atkins, 122 S. Ct. at

2249. 10 The Supreme Court states that there have only been five defendants, with a known IQ less than 70, that have been executed since Penry 11 was decided. Atkins, 122 S. Ct. at 2249. Atkins, 122 S. Ct. at 2251. (^12) Id., at 2250.

holding that their “deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.”^13

Based upon the social purposes served by the death penalty, the Supreme Court noted two justifications for its imposition: retribution and the deterrence of capital crimes by others.^14 Neither justification exists, according to the Supreme Court, when dealing with the mentally retarded. Just as the culpability of the “average murderer” is insufficient to justify the death penalty, so to does the lesser culpability of the mentally retarded not merit this form of retribution.^15 Deterrence is not served by executing the mentally retarded, as their cognitive and behavioral impairments make it less likely that they can process the possibility of a death sentence when they act, and hence control their impulses.^16

Finally, the Supreme Court discussed the possible errors that can occur in capital cases as a result of a defendant’s mental retardation: For example, there is a greater possibility of mentally retarded persons making false confessions, a lesser ability for them to make a persuasive showing of mitigation, a lesser ability to give meaningful assistance to their lawyers, the likelihood that they will make poor witnesses, and the possibility that their demeanor may create “an unwarranted impression of lack of remorse for their crimes.” 17 Therefore, such defendants “in the aggregate face a special risk of wrongful execution.”^18 In conclusion, the Court held that in “construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’…such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”^19

V. Definitions and Procedural Questions

The Virginia State Crime Commission was advised of the medical and forensic issues involved with determining mental retardation by a Clinical Advisory Group consisting of statewide mental health experts. The Clinical Advisory Group identified definitional criteria, causal and manifestation criteria, and practical assessment criteria for use in a legal, criminal justice environment.^20

Based on the examination of both forensic and legal topics, the Crime Commission addressed four main issues when deciding on the statutory parameters needed to respond to the Akins v. Virginia decision. These issues were:

• What is the appropriate definition of mental retardation for purposes of the death

(^13) Id., at 2250-51. (^14) Atkins, 122 S. Ct. 2251, citing Gregg v. Georgia, 428 U.S. 153, 183 (1976). (^15) Id. at 2251. (^16) Id. at 2251. (^17) Id. at 2252. (^18) Id. at 2252. (^19) Id. at 2252. (^20) See Appendix C for presentation materials.

clinical assessments of mental retardation.^26 Based upon the general discussion in the Atkins decision, and current clinical definitions, the Clinical Advisory Group recommended a similar three-pronged approach to defining mental retardation for purposes of capital trials. (See Appendix D). This definition was:

Mentally retarded means a disability, originating before the age of 18 years, characterized by: (iii) significantly sub-average intellectual functioning as expressed by performance on a standardized measure of intellectual functioning carried out in conformity with accepted professional practice, that is at least 2 standard deviations below the mean, considering the standard error of measurement for the specific instruments used and, (iv) substantial limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.

It was the recommendation of the both the Sub-committee and the Crime Commission to adopt the definition proposed by the Clinical Advisory Group.^27 In order to prevent inconsistencies in the Code of Virginia , it was also recommended that the definition of mental retardation found in Title 37.1 of the Code be modified to comport with the definition used in Title 18.2.

Issue 2: When is Determination Made

The Atkins opinion does not give any particular mandate as to when a determination of a defendant’s possible mental retardation should be made in the criminal justice process. However, in the decision, the Court states that mentally retarded persons are frequently competent to stand trial and that “their deficiencies do not warrant an exception from criminal sanctions, but they do diminish their personal culpability.”^28 Thus, as long as a state develops some type of procedural process that protects the defendant’s Eighth Amendment rights not to be executed if mentally retarded, and that procedure comports with due process,^29 it will be acceptable.

A review of those states which currently have statutes prohibiting the execution of the mentally retarded reveals: eight of them make that determination either before trial, or during the guilt/innocence phase of the proceedings.^30 Nine states have the determination made after trial, during, or after sentencing.^31 Two states allow the determination to be

(^26) Id. (^27) While the Clinical Advisory Group definition included the phrase “substantial limitations in intellectual

functioning,” the Crime Commission decided to use “significant limitation,” which is the precise language found in the actual AAMR definition. 28 Atkins v. Virginia, 122 S. Ct. 2242, 2250-51 (2002). (^29) U.S. Const. amend. XIV. (^30) Ariz. Rev. Stat. § 13-703 (2002); Colo. Rev. Stat. § 16-9-402 (2002); GA Code Ann. § 17-7-131 (2001);

Ind. Code § 35-36-9-3 (2002); KY Rev. Stat. Ann. § 532.135 (2002); NY Crim. Proc. Law § 400. (2002); S.D. Codified Laws § 23A-27A-26.3 (2002); and, Tenn. Code Ann. § 39-13-203 (2002). (^31) Conn. Gen. Stat. Ann. § 53a-46a(h) (2002); Del. Code Ann. Tit. 11, § 402 (2002); FLA, Stat. Ann.

made twice, both before trial and during sentencing.^32

As the Atkins decision holds that a mentally retarded defendant who is charged with a capital crime can be tried, and punished (though not with a death sentence), the situation is analogous to a defendant who, because of extenuating circumstances, is found by a trier of fact to not be deserving of the death penalty. Adopting the mandate of Atkins to Virginia’s current process of a bi-furcated trial in death penalty cases,^33 it is the recommendation of the Crime Commission that a determination of a defendant’s ineligibility for the death penalty be made during sentencing proceedings. Such a process would be constitutional, and would involve the least modification of Virginia’s current criminal process in capital cases.

Issue 3: Who should make the Determination

As with the procedural question of when the determination of mental retardation should be made, the Atkins decision is similarly silent as to whether such a factual determination of mental retardation should be made by a judge or a jury. A review of other state statutes reveals:

• 14 states have the determination made by a judge,^34
• 3 states have determination by a jury,^35 and
• 2 states allow the determination to be made by either a judge or jury.^36

It would appear, therefore, that there is no definite constitutional guidance as to a correct entity to make such findings of facts. However, in the recent case of Ring v. Arizona,^37 the Supreme Court held that it was unconstitutional for a state to allow a judge to determine the existence of aggravating factors, outside the jury. If a fact can “increase” the potential punishment for a crime, it must be determined by a jury.

While not completely dispositive of this issue, as it dealt with aggravating sentencing factors, rather than mitigating factors, the Ring opinion may indicate the United States Supreme Court will increasingly insist in the future that all factual determinations in capital trials be made by a jury. Therefore, it is the recommendation of the Crime Commission that Atkins determinations of mental retardation be made by

§921.137 (2001); KAN. Stat. Ann. § 21-4623 (2001); MD. Code Ann., Criminal Law §2-202; MO. Rev. Stat. § 565.030.1 (2001); Neb. Rev. Stat. § 28-105.01 (2002), N.M. Stat. Ann. § 31-20A-2.1 (2001); and, Wash. Rev. Code Ann. § 10.95.030 (2002). (^32) Ark. Code Ann. § 5-4-618 (2002) and N.C. Gen. Stat. § 15A-2005. (^33) See Va. Code §§ 19.2-264.2, 19.2-264.4. (^34) Ariz. Rev. Stat. § 13-703 (2002); Colo. Rev. Stat. § 16-9-402 (2002); ); Del. Code Ann. Tit. 11, § 402

(2002); FLA. Stat. Ann. §921.137 (2001); GA Code Ann. § 17-7-131 (2001); Ind. Code § 35-36-9- (2002); KAN. Stat. Ann. § 21-4623 (2001); KY Rev. Stat. Ann. § 532.135 (2002); Neb. Rev. Stat. § 28- 105.01 (2002), N.M. Stat. Ann. § 31-20A-2.1 (2001); NY Crim. Proc. Law § 400.27; S.D. Codified Laws § 23A-27A-26.3 (2002); Tenn. Code Ann. § 39-13-203 (2002); and, Wash. Rev. Code Ann. § 10.95. (2002). (^35) Conn. Gen. Stat. Ann. § 53a-46a(h) (2002); MD. Code Ann., Criminal Law § 2-202 (2002); and, MO.

Rev. Stat. § 565.030.1 (2001); (^36) Ark. Code Ann. § 5-4-618 (2002) and N.C. Gen. Stat. § 15A-2005 (2002). (^37) Ring v. Arizona, 536 U.S. __, 122 S. Ct. 2428 (2002).

Summary Decisions

In summary, the Sub-Committee and the Crime Commission made the following four decisions when drafting the statutory response to Akins v. Virginia:

• a clinical definition of mental retardation should be applied;
• the determination of mental retardation should be made during the sentencing phase after trial;
• the determination of mental retardation should be made by the jury; and
• the standard of proof that the defendant must bear should be one of a preponderance of the evidence. A copy of the proposed legislation can be found in Appendix F.

VI. Conclusion and Recommendations

Based on the discussions and recommendations of the Atkins Sub-Committee, the Virginia State Crime Commission made the following recommendations as part of its proposal to address the United States Supreme Court’s directives in Atkins v. Virginia.

Recommendation 1

Amend the § 18.2-10 of the Code to specify that a person who is mentally retarded is not eligible for the death penalty.

Recommendation 2

The determination of mental retardation should be made by the jury as part of sentencing.

Recommendation 3

The defendant should bear the burden of proving his/her mental retardation using a standard of preponderance of the evidence.

Recommendation 4

Amend the Code of Virginia to include a definition of mental retardation.

must be proven by the prosecution “beyond a reasonable doubt.” 536 U.S. __, 122 S. Ct. 2428 (2002); see also Apprendi v. New Jersey, 530 U.S. 466 (2000). However, Ring dealt with aggravating factors in the sentencing phase, not mitigating factors, such as mental retardation. Typically, the prosecution in criminal cases is not forced to prove the absence of facts or mitigating evidence. Additionally, the earlier Supreme Court case of Medina v. California, 505 U.S. 437, 452-53 (1992), held that it is not unconstitutional to require a defendant to prove his incompetency to stand trial, rather than shift the burden to the prosecution to prove the defendant is competent, once the issue has been raised. For these reasons, and because the issue of mental retardation is analogous to insanity, the Crime Commission decided to have the burden of proof in Atkins claims remain with the defendant.

Specifically,

Mentally retarded means a disability, originating before the age of 18 years, characterized by: (v) significantly sub-average intellectual functioning as expressed by performance on a standardized measure of intellectual functioning carried out in conformity with accepted professional practice, that is at least 2 standard deviations below the mean, considering the standard error of measurement for the specific instruments used and, (vi) substantial limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.

Recommendation 5:

Modify the definition of mental retardation in § 37.1-1 to make the definition consistent throughout the Code.