Death Penalty for the Mentally Retarded

Atkins v. Virginia, No. 00-8452

The Supreme Court voted 6-3 that the execution of mentally retarded criminals is a form of "cruel and unusual punishment" prohibited by the Eighth Amendment.

The case involved an emotional issue, and emotions ran suitably high. While Justice Stevens wrote for the majority that the punishment violates the "evolving standards of decency that mark the progress of a maturing society," Justice Scalia's caustic dissent contended that "seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members," and Chief Justice Rehnquist vigorously denounced the majority's decision to place weight (albeit in a footnote) on "foreign laws, the views of professional and religious organizations, and opinion polls."

Previously, in Penry v. Lynaugh, 492 U.S. 302 (1989), the court had ruled that the Eighth Amendment's ban on cruel and unusual punishment did not categorically prohibit the execution of mentally retarded capital murderers. Still, Justice O'Connor wrote for a majority of that court, Amendment does more than just bar the practices that were condemned by the common law at the time the Bill of Rights was adopted. It also bars punishments that offend our society's "evolving standards of decency" as expressed in "objective evidence of legislative enactments and the conduct of sentencing juries."

In 1989, however, O'Connor could count only one state (Georgia) that expressly banned the execution of retarded persons, one state (Maryland) that had similar legislation pending, and a single federal statute (the Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848[l] [1988 ed.]), that contained a similar prohibition. Thus, said O'Connor, "While a national consensus against execution of the mentally retarded may someday emerge … there is insufficient evidence of such a consensus today." Meanwhile, the court noted, counsel for mentally retarded defendants could seek to present their clients' handicap as mitigating evidence at sentencing.

The amount of objective evidence sufficient for an individual justice to identify society's "evolving standards" thus turned into a key issue in this case. Among the evidence before the court in Atkins v. Virginia was that since 1989, another 16 of the 38 states with capital punishment (Arizona, Arkansas, Colorado, Connecticut, Florida, Indiana, Kansas, Kentucky, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota, Tennessee, and Washington) have joined Georgia and Maryland in enacting laws to exempt the mentally retarded, and 12 states now ban the death penalty altogether.

Read Justice Stevens' Majority Opinion in this case.

Read a Transcript of Oral Arguments (.pdf).

Read the Supreme Court's 1989 Decision in Penry v. Lynaugh holding that the Eighth Amendment does not bar the execution of all mentally retarded offenders.

Read the Virginia Supreme Court's 2000 Opinion upholding the imposition of a death sentence upon a mentally retarded defendant with an IQ of 59.

Read the ACLU Position on the Death Penalty (.pdf).

Read the American Association on Mental Retardation (AAMR) amicus brief (.pdf) in support of defendant Daryl Renard Atkins.

Read the Criminal Justice Legal Foundation's Amicus Brief (.pdf) in support of the Commonwealth of Virginia.

Read the prohibition on executing the retarded contained in the Anti-Drug Abuse Act of 1988, 21 U.S.C. §848(l).

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