WHY THE SUPREME COURT MAY REVERSE ITSELF THIS TERM,

To Hold, In A New Case, That Executing The Mentally Retarded Is Unconstitutional

By ELAINE CASSEL

 Feb. 21, 2002

Yesterday, the Supreme Court heard oral arguments in the case of Atkins v. Commonwealth of Virginia. Daryl Renard Atkins was sentenced to death for killing a man in the course of a robbery. However, his attorneys contend that due to his mental retardation (Atkins has an IQ of 59), executing him would violate the Eighth Amendment�s prohibition on cruel and unusual punishment.

 At a minimum, the execution would certainly be unusual: the Virginia Supreme Court, which heard Atkins�s case at the state level, noted that it could find no reported case of anyone with an IQ as low as Atkins�s ever being executed.

 The Court has addressed the issue of the constitutionality of imposing a death sentence on a mentally retarded person once before. In 1989, the Court ruled in Penry v. Lynaugh � a 5-4 decision in which Justice Sandra Day O�Connor wrote the majority opinion � that executing mentally retarded persons who are convicted of capital crimes does not violate the Eighth Amendment. However, in Atkins, the Court may well revisit � and possibly could reverse � that ruling.

 The overruling decision, if it comes, will probably be 5-4 again, though it could conceivably be 6-3. The majority supporting Penry�s result was composed of Justices O�Connor, Rehnquist, White, Scalia, and Kennedy, with Justices Stevens, Marshall, Brennan, and Blackmun dissenting from the result.

 On the current Court, Justices Rehnquist, Scalia, Kennedy and Thomas will likely vote to reaffirm Penry, with Justice O�Connor possibly voting to overrule or modify the precedent, and Justices Ginsburg, Breyer, Souter, and Stevens almost certainly voting to overrule or modify.

 Why Penry Might Be Overruled

 One reason the Court might change its mind on this issue is that legislation is the principal source to which the Court looks in determining whether "evolving standards of decency" bar a practice as cruel and unusual. When Penry was heard, only two states proscribed death for the mentally retarded. Now, of the 38 states that allow the death penalty, 18 states (along with the federal government and the District of Columbia) have outlawed the practice.

 Moreover, executing the retarded has international implications as well. The United States stands alone among its civilized peers in executing its citizens. Executing the mentally retarded only further convinces our allies, and potential allies, of our barbarity.

 International opinions may matter both from the perspective of constitutional law (as Akhil Amar has argued in a column for this site) and from that of international relations. In 2001, for instance, international pressure played a role in convincing North Carolina to exempt the retarded from its death penalty law after the case of Ernest McCarver attracted wide publicity. (The amendment, which was made retroactive as well as prospective, mooted a pending Supreme Court case).

 McCarver, who had an IQ higher than Atkins�s (67 to 70), was sentenced to die for stabbing to death a fellow cafeteria worker. A group of nine American diplomats, including Thomas R. Pickering, who has held more ambassadorial postions than any other American diplomat, had filed a friend-of the court brief calling the execution of the mentally retarded a "cruel and uncivilized practice" that undermines the ability of the United States to cast aspersions on the human rights records of other countries.

 After McCarver�s case was mooted, Atkins�s case replaced it on the Court�s docket � providing a strong a sign that the Court might be ready to revisit Penry.

 The Crux of the Issue: A Childlike Defendant

 Regardless of whether one supports the death penalty, the executions of persons who, like Atkins, are mildly mentally retarded, should still be very troubling. (Executions of the moderately, severely, and profoundly retarded are, if anything, even more so).

 A person with this condition may be competent to stand trial, in that he can assist in his defense and understand the charges and the proceedings � at least at an extremely basic level. He will also likely be unable to assert an insanity defense � which applies when a defendant claims that, as a result of mental illness or mental defect, he did not understand that what he was doing was wrong and/or could not conform his behavior to the law.

 Nevertheless, while the mildly mentally retarded may retain at least some impulse control, it is very limited. With an IQ score ranging from 59 to 70, a mildly mental retarded person has the cognitive style and coping abilities of a 9-12 year old. When one thinks of the difference in impulse control of a nine-year-old as compared to an adult, one gets a sense of the dramatic difference. Atkins himself, with an IQ at the low end of the mild range, probably has about this level of control.

 Since we don�t execute children, why should we not stay the executioner�s hand for those who are childlike in cognitive and other capacities and who have been deficient since birth or early childhood?

 How Should We Define Mental Retardation?

 If the Supreme Court does overrule Penry, it will have to answer a difficult question: What degree of retardation means that a defendant cannot constitutionally be executed?

 The new North Carolina statute defines retardation as having an IQ of below 70 and significant difficulty in performing the basic functions of life, including communication, self-care, and work. Other states that have passed similar statutes have typically taken similar approaches. However, the legislature in Virginia, Atkins�s home state, last week rejected a bill that was similarly worded � finding that using an IQ score of 70 as a benchmark was too arbitrary.

 But the diagnostic criteria set out in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (known as the DSM-IV), the Bible of psychiatric diagnoses, are anything but arbitrary. Under its standards, a below-average score on an IQ test is not alone sufficient to support a diagnosis of mental retardation.

 According to the DSM-IV, the essential feature of mental retardation is subaverage general intellectual functioning (as measured psychometrically with an IQ score of 70 or less), but it must be accompanied by significant limitations in adaptive functioning in at least two of several domains, including communication, work, academic skills, health, and independent living. (Adaptive functioning refers to "how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting," as influenced by factors like education, motivation, personality characteristics, social and vocational opportunities, and the mental disorders and general medical conditions that may coexist with mental retardation.)

 This standard would be appropriate for the Court to adopt, inasmuch as it is the accepted diagnostic criteria in North America and Europe and one with which psychiatrists and psychologists are familiar. (It also constituted the set of criteria applied by Atkins�s psychological expert.)

 The Need for Supreme Court Guidance on Expert Testimony If Penry Is Overruled

 If Penry is indeed overruled, expert testimony will be necessary to determine, at the penalty phase of the trial, whether the defendant is death-eligible. A psychologist or psychiatrist experienced in diagnosing mental retardation will find the task fairly straightforward. The criteria are clear and the assessment instruments used are widely recognized and accepted as being valid and reliable. But as Atkins�s trial indicated, the diagnosis�and subsequent trial testimony�may be confounded by "experts" whose expertise and professionalism are in doubt.

 At Atkins�s trial, Dr. Evan Nelson � a highly regarded expert who testifies as often for the prosecution as the defense � testified on Atkins�s behalf. He administered the most widely used and respected instruments, including the Wechsler Adult Intelligence Scale (WAIS-III); conducted extensive interviews with background witnesses and Atkins himself; and researched Atkins�s past academic progress, work, and social history. He unequivocally found that Atkins met the diagnostic criteria for lower end of the scale of mild mental retardation�in terms of his IQ score and adaptive functioning.

 In support of his opinion, Dr. Nelson pointed to Atkins�s school records, which showed that he scored below the 20th percentile in almost every standardized test he took. Atkins failed the 2nd and 10th grades. In high school, Atkins was placed in lower-level classes for slow learners, and classes with intensive instruction for remedial deficits. His grade point average in high school was 1.26 out of a possible 4.0. Atkins did not graduate from high school. Moreover, Atkins�s cognitive ability appeared to decline throughout his adolescence. In the 8th grade his achievement scores were in the 15th percentile. But by the 10th grade he had dropped to the 8th percentile.

 Nevertheless, the prosecution�s expert, Stanton Samenow, a Virginia forensic psychologist, had quite a different opinion. He contended that Atkins had at least average intelligence.

 How could his conclusion be so starkly different from that of Dr. Nelson? The answer is that Samenow did not utilize accepted methodology to make his diagnosis. Virginia Supreme Court Justice Hassell attacked Samenow�s testimony in a stinging dissent. Hassell found Samenow�s opinion "incredulous as a matter of law." He declared himself "perplexed" that "Dr. Samenow, who did not administer a complete IQ Test to the defendant and admittedly asked the defendant questions based upon bits and pieces of outdated tests�would opine that this defendant possesses at least average intelligence."

 Justice Hassell also wrote, "Dr. Samenow could not validly opine about the defendant�s adaptive behavior because he had not interviewed anyone who had observed the defendant prior to his incarceration." Moreover, the Justice noted that Samenow was wrong to see Atkins�s ability to use some sophisticated vocabulary words, and to relate certain historical facts as proof he is not retarded, when many children as young as eight years old can do the same.

 Yet the trial judge allowed Samenow to testify anyway. Why?

 The Need For State Laws Making State Judges Expert Testimony Gatekeepers

 In part, the answer comes from a disparity between state and federal evidence rules. In 1993, the Supreme Court held in Daubert vs. Merrell Dow Pharmaceuticals that federal judges must perform a gatekeeping function with respect to the nature and type of expert testimony allowed at trial. Because of Daubert, a federal judge would probably have disqualified Samenow.

 However, death penalty cases, with rare exceptions, take place in state court � and many states that have the death penalty, including Texas and Virginia, do not yet have Daubert-like evidence rules. Accordingly, judges in these states tend to take a more permissive view of what expert testimony may be presented in court.

 Even if Penry is overruled, its reversal will not mean much for the fates of mentally retarded defendants unless the states whose courts try them put some limits upon the expert testimony that can be offer. Prosecutors will always be able to find some "expert" to say the defendant�s intelligence is high enough that he can be executed, and juries will be tempted to believe these "experts." After all, the defendant whose intelligence they are assessing will already have been convicted, probably of a terrible crime, and the urge to punish is a strong one.

 Easily impassioned juries considering the death penalty should hear only credible testimony that comes from experts with relevant credentials, and that has a strong basis in thorough and professional interviews and testing. If state judges will not act as gatekeepers, even overruling Penry may still provide scant protection for mentally retarded death penalty defendants.

 A Way Out Of The Conundrum

 Of course, there is a way around our having to grapple with the difficult questions that will arise should the Court rule in Atkins�s favor. We need not go through endless, hair-splitting analysis of what does and does not qualify as retardation. Nor need we perform the heartbreaking task of choosing what mental characteristics make one defendant more "suited" to being put to death, and another more deserving of serving out his natural span of days in a prison cell. The line must be drawn, but it will be thin, and there will always be genuinely impaired defendants on the other side of it

 Instead, the Court could simply repeal the death penalty. Last summer, Justice O�Connor suggested that she was sometimes troubled by death penalty cases that come before the Court. Lately, in interviews relating to her childhood memoir, Lazy B, she has made similar comments. It might be too much to ask to hope that the 70-year-old grandmother would rethink the death penalty altogether � but it is not beyond possibility; Justice Blackmun became staunchly anti-death penalty at a later age.

 In any event, we can certainly hope that Justice O�Connor �likely to be the swing vote in Atkins, as she is in many of the Court�s cases � has mellowed in her later years to the point where she, like so many of us, has become repulsed by the thought of executing those with mental deficiencies. Legal experts and Supreme Court watchers believe that Atkins�s life�as well as the lives of other mentally retarded adults sitting on death row�is in Justice O�Connor�s hands. Let us hope that she exhibits the same thoughtfulness and compassion in the courtroom and in chambers, as she has in recent statements about the death penalty.

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 Elaine Cassel practices in Virginia and teaches law and psychology online and in traditional settings. She writes and delivers continuing legal education courses in Internet law, privacy, genetics, and health law and is the author of Criminal Behavior (Allyn & Bacon, 2001). She is Vice Chair of the Behavioral Sciences Committee of the ABA Science and Technology Law Section and Co-Vice Chair of the Section�s Genetic Research and Testing Committee.