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1 Constitutional Law Capital Punishment of Mentally Retarded Defendants is Cruel and Unusual Under the Eighth Amendment Atkins v. Virginia, 536 U.S. 304 (2002) The Eighth Amendment to the United States Constitution prohibits the imposition of cruel and unusual punishments. 1 The Eighth Amendment also bars excessive punishment that is not graduated and proportioned to the offense. 2 Courts must look to prevailing societal standards of decency when determining the Constitutional definition of excessive. 3 In Atkins v. Virginia, 4 the Court considered whether a national consensus existed with regard to the execution of mentally retarded offenders, thus making such executions a violation of the Eighth Amendment s prohibition on cruel and unusual punishment. 5 The Court held that a national consensus reflected that the execution of mentally retarded criminals did not advance the goals of retribution and deterrence and thus was cruel and unusual under the Eighth Amendment. 6 At approximately midnight on August 16, 1996, two men, Daryl Atkins, a mentally retarded man with an IQ of fifty-nine, and William Jones, abducted, robbed, and killed Eric Nesbitt. 7 Atkins, with a borrowed gun tucked in his waistband, walked with Jones to a nearby convenience store to purchase beer. 8 Before entering the store, Atkins and Jones noticed Mr. Nesbitt exiting the store and getting into his truck in the store parking lot. 9 Seeing an opportunity to rob Mr. Nesbitt, Atkins approached Mr. Nesbitt in his truck, pointed the gun at him, and ordered Mr. Nesbitt to let Jones get 1. U.S CONST. amend. VIII. The Eighth Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Id. 2. Weems v. United States, 217 U.S. 349, 367 (1910) (defining excessive punishment). 3. Weems v. United States, 217 U.S. 349, (1910) (explaining criteria courts use to determine excessive punishment) U.S. 304 (2002). 5. Id. at 307 (defining national consensus by looking to recent legislation, public outlook, and judicial opinion). 6. Id. at 321 (holding evolving standards of decency do not deem execution of mentally retarded criminals constitutional). 7. Id. at 307 (detailing defendant s IQ level and actions taken on night in question). The doctor testifying for the defense concluded that Atkins qualified as mildly mentally retarded under the American Association of Mental Retardation s definition of mental retardation. Id. at Under this definition, a mentally retarded individual possesses subaverage intellectual functioning, which may include limitations in communication, social skills, and self direction. Id. at 308 n Atkins v. Commonwealth, 510 S.E.2d 445, 449 (Va. 1999) (detailing gun location), aff d, 534 S.E.2d 312 (Va. 2000), rev d, 536 U.S. 304 (2002). 9. Atkins v. Commonwealth, 510 S.E.2d 445, 449 (Va. 1999) (explaining factual situation), aff d, 534 S.E.2d 312 (Va. 2000), rev d, 536 U.S. 304 (2002).

2 240 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:239 behind the wheel. 10 They then drove Mr. Nesbitt to an automatic teller machine and ordered him to withdraw money from his account. 11 After discussing Mr. Nesbitt s fate, Atkins and Jones drove him to a secluded area, ordered him out of the truck, and, despite Mr. Nesbitt s pleas for safety, the two men shot him eight times. 12 In 1998, the Circuit Court of York County, Virginia, convicted Daryl Atkins of the capital murder of Eric Nesbitt and sentenced Atkins to death. 13 The Virginia Supreme Court affirmed his conviction, but it remanded the case for a new penalty proceeding on the capital murder conviction. 14 In accordance with the jury s determination, the lower court once again sentenced Atkins to death. 15 Atkins unsuccessfully appealed to the Virginia Supreme Court, which affirmed the lower court s decision for a second time, holding that the death penalty was neither cruel nor unusual punishment. 16 Courts have expanded and interpreted the meaning of the phrase cruel and unusual punishment, in its Eighth Amendment context, since the drafting of the Constitution. 17 Courts interpret the Eighth Amendment in a flexible and dynamic manner, in accordance with ideas of a maturing society, because courts have never established the exact scope of the amendment. 18 For 10. Atkins v. Commonwealth, 510 S.E.2d 445, 449 (Va. 1999) (describing method used to get into victim s truck), aff d, 534 S.E.2d 312 (Va. 2000), rev d, 536 U.S. 304 (2002). 11. Atkins v. Commonwealth, 510 S.E.2d 445, 449 (Va. 1999) (describing encounter at automatic teller machine), aff d, 534 S.E.2d 312 (Va. 2000), rev d, 536 U.S. 304 (2002). 12. Atkins v. Commonwealth, 510 S.E.2d 445, 449 (Va. 1999) (depicting manner in which Atkins killed Nesbitt), aff d, 534 S.E.2d 312 (Va. 2000), rev d, 536 U.S. 304 (2002). 13. Atkins v. Commonwealth, 510 S.E.2d 445, 445 (Va. 1999) (reciting circuit court s holding), aff d, 534 S.E.2d 312 (Va. 2000), rev d, 536 U.S. 304 (2002). 14. Atkins v. Commonwealth, 510 S.E.2d 445, 457 (Va. 1999) (emphasizing failure to provide jury with option of life in prison), aff d, 534 S.E.2d 312 (Va. 2000), rev d, 536 U.S. 304 (2002). 15. Atkins v. Commonwealth, 534 S.E.2d 312, 314 (Va. 2000) (adhering to jury determination at resentencing), rev d, 536 U.S. 304 (2002). On appeal, the Supreme Court held that the death penalty is not applicable to mentally retarded defendants. 536 U.S. at Atkins v. Commonwealth, 534 S.E.2d 312, 390 (Va. 2000) (upholding Atkins death sentence because neither excessive nor disproportionate to comparable sentences), rev d, 536 U.S The Supreme Court of Virginia held that although Atkins had a purported IQ of fifty-nine, the death penalty was not a disproportionate punishment for the crime he committed. Id. However, in the dissenting opinion, Justices Hassell and Koontz held that sentencing a mentally retarded defendant to death was excessive and disproportionate considering both the crime and the defendant. Id. (Hassel, J., dissenting in part). 17. Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (plurality opinion) (finding societal consensus precludes executing person under age sixteen as cruel and unusual); Ford v. Wainwright, 477 U.S. 399, (1986) (holding cruel and unusual to inflict death penalty upon insane defendant). The Court in Ford found that there was no legislation in any state that allowed the execution of an insane defendant. Ford, 477 U.S. at 408 n.2; Gregg v. Georgia, 428 U.S. 153, 173 (1976) (recognizing importance of public s values and attitudes towards given punishment); Trop v. Dulles, 356 U.S. 86, 100 (1958) (noting proper to exercise power to punish within limits of civilized standards); Weems v. United States, 217 U.S. 349, 365 (1910) (extending Eighth Amendment protection to punishment lacking proportionality to severity of crime). The Weems Court held that it is a precept of justice that punishment for crime should be graduated and proportioned to offense. Weems, 217 U.S. at 367. The Court also noted that the cruel and usual punishment clause should be progressive and its meaning reinterpreted in line with public enlightenment. Id. at Gregg v. Georgia, 428 U.S. 153, 183 (1976) (examining contemporary values and objective indicia

3 2004] CASE COMMENT 241 example, in Penry v. Lynaugh, 19 the Court examined society s evolving standards of decency to determine whether the execution of a mentally retarded defendant violated the Eighth Amendment. 20 To establish these standards, the Court considered the legislative consensus, indicating that this provides the most reliable evidence of contemporary societal values. 21 Courts have also studied jury behavior, public opinion polls, and the positions taken by relevant organizations in the mental retardation and legal fields when seeking to prove the existence of a national consensus. 22 In addition to proving a national consensus, the Penry Court emphasized that the death penalty must serve two purposes: retribution and deterrence. 23 Courts look to a defendant s culpability when analyzing the punishment s retributive effect; and courts look to a defendant s ability to appreciate the consequences of their actions when determining the punishment s deterrent reflecting public attitude toward questionable punishment) U.S. 302 (1989). 20. Penry v. Lynaugh, 492 U.S. 302, (1989) (construing Eighth Amendment adherence to evolving standards of decency marking progression of maturing society). The Court ascertained the evolving societal standards of decency through legislative action and public opinion polls. Id. Justice O Connor, writing for the majority, opined that legislation did not indicate a national consensus against the execution of the mentally retarded. Id. at 335. However, Justice O Connor also realized the possibility that a national consensus might emerge against the execution of the mentally retarded in the future. Id. at 340. Additionally, Justice Scalia s concurring opinion maintained that a court need only proscribe a punishment if the country had set its face against such form of punishment. Id. at 351 (Scalia, J., concurring) (quoting Stanford v. Kentucky, 492 U.S. 361, 378 (1989)). 21. Penry v. Lynaugh, 492 U.S. 302, (1989) (upholding execution of mentally retarded defendant because only two state legislatures outlawed such executions). The Penry Court also studied public opinion polls to determine a national consensus, expressing that the polls would eventually be articulated in legislation. Id. at 334. The Court concluded that this articulation would clearly and objectively represent society s values. Id.; see Thompson v. Oklahoma, 487 U.S. 815, (1988) (finding national consensus where eighteen states rejected capital punishment of those under sixteen); Ford v. Wainwright, 477 U.S. 399, (1986) (reviewing state legislation to find societal consensus against execution of insane defendant); Enmund v. Florida, 458 U.S. 782, 797 (1982) (recognizing importance of Court s opinion in addition to legislatures when determining whether death penalty constitutional). 22. Thompson v. Oklahoma, 487 U.S. 815, 831 (1988) (examining jury behavior in determining acceptability of juvenile capital punishment). The Court also looked to recommendations from psychiatrists and the American Bar Association in determining a national consensus. Id.; see Enmund v. Florida, 458 U.S. 782, 786 (1982) (citing Coker v. Georgia, 433 U.S. 584 (1977)) (looking to historical development of punishment, legislation, international opinion, and prior jury decisions). But see Stanford v. Kentucky, 492 U.S. 361, 377 (1989) (declining to derive national consensus from indicia other than laws and their application). See generally Stephen P. Garvey, Aggravation and Mitigation in Captial Cases: What do Jurors Think?, 98 COLUM. L. REV. 1538, 1564 (1998) (detailing importance of mental retardation as mitigating factor). 23. Penry v. Lynaugh, 492 U.S. 302, 331 (1989) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)) (holding death penalty must further goals of deterrence and retribution and remain proportionate to crime committed). The Penry Court reasoned that courts may only impose capital punishment in cases where the defendant had the capacity to judge the consequences of his actions. Id. at 322; see Gregg v. Georgia, 428 U.S. 153, 173 (1976) (describing importance of defendant s ability to fully rationalize choices made). The Court also recognized that the punishment must advance the goals of retribution and deterrence, while still remaining in proportion to the severity of the crime. Gregg, 428 U.S. at 173.

4 242 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:239 effect. 24 Consequently, a mentally retarded defendant s inability to learn, to control their own actions, and to judge may necessitate a lesser standard of culpability. 25 Courts must also determine if the punishment is grossly out of proportion to the severity of the crime. 26 In other words, there must exist a nexus between the punishment imposed and the defendant s blameworthiness. 27 Moreover, reasonably linking the imposition of the death penalty to the crime committed requires that the individual be a fully rational, choosing agent when committing the crime Penry v. Lynaugh, 492 U.S. 302, 341 (1989) (Brennan, J., concurring in part and dissenting in part) (recognizing mentally retarded lack necessary moral culpability prerequisite to proportionate imposition of death penalty). Justice Brennan noted that courts can never justly impose the death penalty on retarded defendants, as it will not deter other retarded persons from committing capital crimes. Id. at 348. Mentally retarded defendants cannot understand the punishment that may result from committing a capital crime because of their inherent mental deficiencies. Id.; Thompson v. Oklahoma, 487 U.S. 815, (1988) (concluding retribution inapplicable because of lesser culpability of juvenile defendant). The Court found that capital punishment does not serve the goal of deterrence if an individual cannot understand the link between his actions and the possible punishment. Thompson, 487 U.S. at 837. The Court further held that an individual s lesser intelligence leads to the inability to evaluate consequences of their conduct. Id. at 835; Tison v. Arizona, 481 U.S. 137, 148 (1987) (holding heart of retribution rationale relates culpability to imposed sentence); Ford v. Wainwright, 477 U.S. 399, 409 (1986) (questioning retributive value of execution of those not able to comprehend reasoning behind punishment); Eddings v. Oklahoma, 455 U.S. 104, (1982) (holding lesser capacity of children leads to inability to control conduct). 25. Penry v. Lynaugh, 492 U.S. 302, 336 (1989) (citing Gregg v. Georgia, 428 U.S. 153, 183 (1976)) (analyzing each individual defendant s culpability when determining retribution). See generally Eddings v. Oklahoma, 455 U.S. 104 (1982) (linking mental impairments with susceptibility to influence of others); John Blume & David Bruck, Sentencing the Mentally Retarded to Death: An Eighth Amendment Analysis, 41 ARK. L. REV. 725, (1988) (analyzing goals of capital punishment, Eighth Amendment, and culpability of mentally retarded defendants); James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414, 429 (1985) (describing impulsive actions in mentally retarded individuals); Josephine C. Jenkinson, Factors Affecting Decision- Making by Young Adults with Intellectual Disabilities, 104 AM. J. MENTAL RETARDATION 320, 321 (1999) (detailing inability of mentally retarded individuals to assess, reason, and exercise control). Jenkinson further analyzes the effect of the limitations mentally retarded individuals possess on their ability to receive a fair trial. Jenkinson, supra, at Thompson v. Oklahoma, 487 U.S. 815, (1988) (holding punishment of death too severe for defendant with lessened culpability); Tison v. Arizona, 481 U.S. 137, 153 (1987) (holding death penalty proportionate to punishment for felony murder). See generally Coker v. Georgia, 433 U.S. 584 (1977) (holding sentence of death grossly disproportionate to crime of rape and forbidden under Eighth Amendment). The Coker Court tested the proportionality of the punishment by inquiring into legislative standards. Id. at The Court also stated, however, that the imposed punishment must be proportional to the degree of harm suffered by the victim and the degree of the defendant s blameworthiness. Id. at ; Weems v. U.S., 217 U.S. 349, 371 (1910) (citing O Neil v. Vermont, 144 U.S. 323, (1892)) (prohibiting excessively long or severe punishments and those greatly disproportioned to offense committed). 27. Harmelin v. Michigan, 501 U.S. 957, 959 (1991) (forbidding only extreme sentences grossly disproportionate to crime committed). The Harmelin Court, however, held that although courts should consider proportionality in their sentencing, the Eighth Amendment does not require strict proportionality between the crime and the punishment. Id.; see Thompson v. Oklahoma, 487 U.S. 815, 852 (1988) (citing Justice O Connor s dissent in Enmund v. Florida, 458 U.S. 782, 825 (1982)) (linking punishment to culpability). But see Stanford v. Kentucky, 492 U.S. 361, 379 (1989) (disapproving of proportionality analysis as sole basis to invalidate punishment). 28. Thompson v. Oklahoma, 487 U.S. 815, n.23 (1988) (rejecting death penalty as

5 2004] CASE COMMENT 243 In Atkins v. Virginia, the Court considered whether capital punishment of mentally retarded defendants is cruel and unusual in light of the Eighth Amendment. 29 The Court first looked to society s prevailing standards of decency as most clearly showcased in legislation. 30 The Court held that a national consensus existed because eighteen states and the Federal Government prohibited the execution of mentally retarded defendants. 31 In addition to this consensus, the Court stated that the consistency of the direction of practice towards prohibiting execution of mentally retarded defendants provided evidence that society views those defendants as less culpable. 32 Lastly, the Court recognized the rarity of the execution of mentally retarded defendants even in the states that have not passed such legislation. 33 The Court also held that this legislation reflected the relationship between a mentally retarded defendant s lessened culpability and the penological goals of retribution and deterrence. 34 The Court noted that mentally retarded defendants experience significant limitations on their intellectual functioning and logical reasoning skills. 35 Accordingly, courts cannot appropriately sentence mentally retarded defendants to death because the severity of the punishment must reflect their lessened capabilities. 36 Further, the Court reasoned that a mentally retarded defendant is less likely to be deterred from committing a crime because of their inability to foresee execution as a possible penalty. 37 Mentally retarded defendants may also give more false confessions, ineffectively assist their counsel, and provide poor witness testimony because of their diminished capacities, all of which contribute to the risk of wrongful execution. 38 These factors led to a conclusion that the punishment of death is never in proportion to a crime committed by a mentally retarded defendant. 39 This reasoning correctly led to the Court s holding that the Eighth Amendment prohibits the execution of mentally retarded defendants. 40 The disproportionate for those unable to make fully reasoned choice); Tison v. Arizona, 481 U.S. 137, 156 (1987) (holding more purposeful acts should result in most serious punishment) U.S. at (considering execution of mentally retarded defendants in light of Eighth Amendment). 30. Id. at (holding legislation most reliable objective factor in determining society s standards of decency). 31. Id. (outlining state statues prohibiting execution of mentally retarded defendants). 32. Id. at (recognizing although no majority consensus, move towards prohibition of execution) U.S. at (recognizing disfavor of execution of mentally retarded defendants). The Court stated that even in those states that regularly carry out the death penalty, only five states have executed defendants with an IQ of less than seventy since Penry. Id. 34. Id. at (recognizing effect of lessened culpability on deterrence and retribution goals). 35. Id. at 319 (noting reduced capacity and ability of mentally retarded defendants). 36. Id. (holding death penalty too severe to reflect diminished culpability) U.S. at 319 (denying deterrent effect of death penalty on mentally retarded defendants). 38. Id. at (cautioning mentally retarded defendants unable to successfully defend themselves). 39. Id. at 321 (stating ruling of court). 40. Supra note 17 and accompanying text (analyzing various punishments prohibited under Eighth Amendment).

6 244 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:239 Court appropriately acknowledged the progressive nature of the Eighth Amendment and properly interpreted it in light of the views of a maturing society. 41 In doing so, the Court noted that since Penry, the existence of a national consensus against the execution of the mentally retarded has developed. 42 Although only eighteen of the death penalty states specifically prohibit such executions, when combined with the twelve states that prohibit the death penalty entirely, the Court properly recognized the practice of executing mentally retarded defendants has become truly unusual. 43 The Court adhered to this consensus and recognized that execution will never serve a retributive goal or result in a just desert for a mentally retarded defendant because of the defendant s reduced level of culpability. 44 Further, permitting the imposition of the death penalty on mentally retarded defendants will not deter future crime because effective deterrence depends on defendants knowing and anticipating the consequences of their actions. 45 Their diminished capacity prevents mentally retarded individuals from making reasoned choices or controlling their impulses, and it leaves them susceptible to the influence of others. 46 Lastly, the necessary nexus between a mentally retarded defendant s blameworthiness and the punishment of death does not exist because courts can only lawfully execute those with the highest level of culpability. 47 It is unnecessarily excessive and disproportionate to impose the death penalty upon a defendant with an IQ of fifty-nine because such a low IQ reflects an inability to fully reason and make sound judgments. 48 A court can never link the penalty of death to a crime a mentally retarded defendant commits because he is not a fully rational, choosing agent. 49 The United States Supreme Court in Atkins v. Virginia properly held that courts cannot lawfully sentence mentally retarded defendants to death under the Eighth Amendment. First, a national consensus has clearly developed indicating that society s standards of decency oppose the execution of mentally retarded criminals. Second, executing mentally retarded defendants does not 41. Supra notes and accompanying text (describing evolving standards of decency as criterion for Eighth Amendment interpretation). 42. Supra note 21 and accompanying text (outlining methods of reaching national consensus). 43. Supra notes 23, 31 and accompanying text (explaining legislation as means of deriving national consensus). 44. Supra notes and accompanying text (stating execution of mentally retarded does not serve goals of retribution and deterrence). 45. Supra note 26 and accompanying text (analyzing culpability of mentally retarded defendants). 46. Supra note 25 and accompanying text (describing inability of mentally retarded defendants to receive fair trial). 47. Supra note 28 and accompanying text (explaining link between culpability and punishment). 48. Supra notes 7, and accompanying text (detailing effect of mental retardation on proportionality analysis). 49. Supra note 28 and accompanying text (stating lack of rational capabilities indicates death penalty inappropriate).

7 2004] CASE COMMENT 245 serve the penological goals of retribution or deterrence. Furthermore, courts can never proportionately link the execution of the mentally retarded to the crime such an individual commits. Lastly, a mentally retarded defendant s lack of impulse control, logical reasoning skills, and abstract thought process necessarily proscribes the death penalty as a punishment. Britta L. Hyllengren

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and Lemons, JJ. and Carrico, 1 S.J.

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