Lecture Notes Atkins v. Virginia, 536 U.S (2002) Keith Burgess-Jackson 29 April 2016

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1 Lecture Notes Atkins v. Virginia, 536 U.S (2002) Keith Burgess-Jackson 29 April Composition of the Court. In Penry v. Lynaugh (1989), five justices held that capital punishment for the mentally retarded 1 does not violate the Eighth Amendment. Thirteen years later, six justices held that it does. What changed? Thomas (no) replaced Marshall (yes). Ginsburg (yes) replaced White (no). Souter (yes) replaced Brennan (yes). Breyer (yes) replaced Blackmun (yes). What changed is that O Connor and Kennedy switched sides, from no to yes. Neither wrote separately in Atkins to explain the change. 1. Justice John Paul Stevens (joined by Justices O Connor, Kennedy, Souter, Ginsburg, and Breyer) delivered the opinion of the Court. The question presented by this case is whether such executions [viz., those involving mentally retarded criminals] are cruel and unusual punishments prohibited by the Eighth Amendment to the Federal Constitution (307). Read the Eighth Amendment aloud, from page 311. Query: How is it possible for someone to be responsible enough to be tried, convicted, and punished, but not responsible enough to be punished by death? Isn t this threading the needle? Stevens says that retardation creates disabilities in areas of reasoning, judgment, and control of... impulses (306). Discuss the concept of culpability, or blameworthiness. Penry had been decided only 13 years before (in 1989), but since then there has been deliberation by the American public, legislators, scholars, and judges (307). 1 The terms used for this condition are subject to a process called the euphemism treadmill. This means that whatever term is chosen for this condition, it eventually becomes perceived as an insult. The terms mental retardation and mentally retarded were invented in the middle of the 20th century to replace the previous set of terms [ retard? imbecile? idiot?], which were deemed to have become offensive. By the end of the 20th century, these terms themselves have come to be widely seen as disparaging, politically incorrect, and in need of replacement. The term intellectual disability is now preferred by most advocates and researchers in most English-speaking countries (Wikipedia, s.v. Intellectual Disability ). 1

2 I. Facts. Read the marked paragraph on page 307. Procedural facts: Atkins convicted of capital murder and sentenced to death. Atkins appealed his sentence. Virginia Supreme Court ordered second sentencing hearing. Atkins sentenced to death again. Atkins appealed his sentence. Virginia Supreme Court affirmed death sentence. Atkins appealed his sentence. U.S. Supreme Court granted certiorari. U.S. Supreme Court reversed Virginia Supreme Court. II. Constitutional interpretation. The Eighth Amendment prohibits excessive sanctions. What counts as excessive depends on currently prevailing standards, not on standards that prevailed when the Bill of Rights was adopted (311). Evolving standards of decency (312) (from Trop v. Dulles [1958]). We have pinpointed that the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country s legislatures (312). Once this evidence is ascertained, the Court must exercise its judgment as to whether the judgment reached by the citizenry and its legislators is to be upheld. III. The judgment of legislatures. Much has changed since [1989] (314). [T]he large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal (315-6). Query: Then why are they convicted of capital murder? The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it (316). IV. Two reasons why the mentally retarded should be categorically excluded from execution (318). 2

3 [T]here is a serious question as to whether either justification that we have recognized as a basis for the death penalty [viz., retribution and deterrence] applies to mentally retarded offenders (318-9). They don t deserve death and they re not deterrable. Mentally retarded defendants in the aggregate face a special risk of wrongful execution (321). Possibility of false confessions and diminished ability to give meaningful assistance to counsel. Conclusion: Read the marked paragraphs on page Chief Justice William Rehnquist (joined by Justices Scalia and Thomas) dissented. Evolving-standards-of-decency test. Rehnquist accepts the evolving standards of decency test, but rejects the majority s evidence for what constitutes evolving standards of decency. Only certain evidence is relevant. Issue. The question presented by this case is whether a national consensus deprives Virginia [or any other state] of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found insufficiently compelling reason to lessen their individual responsibility for the crime (321). Rehnquist s answer: no. Reason for dissenting. I write separately... to call attention to the defects in the Court s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion (322). See majority opinion, footnote 21. Proper sources. In my view,... two sources the work product of legislatures and sentencing jury determinations ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment (324). They are well-established objective indicators of contemporary values (328). Irrelevance of foreign laws or international opinion. 3

4 [I]f it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant (325; italics in original). Relevant =df. has some bearing on. Irrelevant =df. has no bearing on. Irrelevance of the views of professional and religious organizations. In my view, none should be accorded any weight on the Eighth Amendment scale when the elected representatives of a State s populace have not deemed them persuasive enough to prompt legislative action (326). Read the marked passage on page 326. Irrelevance of opinion polls. [W]e lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us (322). An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques (326). In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters (327-8). Appendix. Rehnquist has a long appendix in which he summarizes poll and survey results reported by the American Association on Mental Retardation. 3. Justice Antonin Scalia (joined by Chief Justice Rehnquist and Justice Thomas) dissented. Lawlessness. The Court s decision find[s] no support in the text or history of the Eighth Amendment (337). Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members (338). Discuss constitutional interpretation. Textualism; originalism; living constitutionalism. Note that the Eighth Amendment (unlike other constitutional provisions) seems to invite discretion. Facts. Read the marked paragraph on page 338 and the marked paragraph on page 339. Why did the majority not mention these facts? Why did Scalia mention them? Who is right? Is there a canonical way to recite facts? Eighth-Amendment jurisprudence. There are two categories of cruel and unusual punishments : (a) those punishments that 4

5 were considered cruel and unusual at the time that the Bill of Rights was adopted (339); (b) those punishments that are inconsistent with modern standards of decency, as evinced by objective indicia, the most important of which is legislation enacted by the country s legislatures (340). Only idiots [a technical legal term] fell into the former category, and Atkins is not an idiot. This leaves the second category. Evolving standards of decency. The first and most important objective factor is state legislation. Why? Because, inter alia, judges are more detached from society than legislatures are. The Court... miraculously extracts a national consensus forbidding execution of the mentally retarded... from the fact that 18 States less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists) have very recently enacted legislation barring execution of the mentally retarded (342). Even worse, only 7 [states] 18% of death penalty jurisdictions have legislation that prohibits all executions of the retarded. [N]o national consensus exists (343). Few, if any, of the States have had sufficient experience with these laws to know whether they are sensible in the long term (344). Direction of change. Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound to be in the one direction the Court finds significant enough to overcome the lack of real consensus (344-5; italics in original). In any event, reliance upon trends, even those of much longer duration than a mere 14 years, is a perilous basis for constitutional adjudication (345). Scalia quotes O Connor, who was in the majority. Note the jab. He is using her words against her, making her look inconsistent. This is a common practice among the justices. Voting margins. Scalia says that if legislative vote margins matter, then the underlying population should also matter. [T]he fact that 49% of the legislators in a State with a population of 60 million voted against the bill should be more impressive than the fact that 90% of the legislators in a State with a population of 2 million voted for it (346; italics in original). Polls &c. [T]he Prize for the Court s Most Feeble Effort to fabricate national consensus must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and re- 5

6 ligious organizations, members of the so-called world community, and respondents to opinion polls (347). Cf. Rehnquist. Scalia mentions the world community, whose notions of justice are (thankfully) not always those of our people (348). Crusades; Inquisition; French Reign of Terror; guillotine (France); garrote (Spain); broad axe (England); Nazism; genocide. The Court s judgment. The arrogance of this assumption of power takes one s breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all (348). Scalia quotes himself several times; explain this. Retribution, deterrence, and incapacitation. Scalia says the Court ignores incapacitation. As for retribution, the mentally retarded are no less culpable than others. Read the marked passages on pages 350 and 351. As for deterrence, surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class (351). Special risk of wrongful execution. Scalia says this may raise a Due Process issue, but it has no bearing on the Eighth Amendment. Chipping away. There is something to be said for popular abolition of the death penalty [by state legislatures or, for federal capital crimes, by Congress]; there is nothing to be said for its incremental abolition by this Court (353). Retardation. [T]he symptoms of [mental retardation] can readily be feigned (353). 6