Journals
Volume 33, No. 2, Spring 2003
Beyond Atkins: A Symposium on the Implications of Atkins v. Virginia
Held at the University of New Mexico School of Law
October 19, 2002
In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that the Eighth Amendment to the United States Constitution forbids the execution of those individuals with mental retardation. Professor James W. Ellis of the University of New Mexico School of Law successfully represented the petitioner Daryl Atkins in this landmark death penalty case. When the Supreme Court declares capital punishment unconstitutional for a whole class of individuals, as legal scholars, we sit up and listen.
The Beyond Atkins Symposium provided the New Mexico Law Review with a chance to be one of the first journals to contribute to the extensive scholarship that will flow from the Atkins decision. The articles in this issue explore the implications of Atkins for the mentally retarded, mentally ill, juveniles, and various other participants in the criminal justice system. The number of questions that Atkins answered pales in comparison to the number of questions it raises. This issue of the New Mexico Law Review by no means answers all of those questions, but we hope that it generates a dialogue on these difficult issues.
Disability Advocacy and the Death Penalty: The Road from Penry to Atkins
James W. Ellis
The Supreme Court’s decision in Atkins v. Virginia, holding that individuals with mental retardation are not eligible for the death penalty, has many implications, a number of which are explored in articles in this Symposium. This article will focus on Atkins as an example of the Court’s methodology in interpreting the Eighth Amendment, with its unique juxtaposition of legislative action and constitutional text. It will also explore the relationship of advocacy interests, in this case professional and voluntary organizations in the disability community, with both legislatures and the Court.
Adolescence, Mental Retardation, and the Death Penalty: The Siren Call of Atkins v. Virginia
Victor L. Streib
The decision in Atkins v. Virginia appears to be one final effort to separate the death penalty’s Siamese twins: juvenile offenders and mentally retarded offenders. Having whipsawed our courts and legislatures for the past twenty years, these capital siblings appear to be in cahoots against the fading forces trying to maintain these age-old practices. Offenders in either category can and do commit horrible crimes that are devastating to the victim’s family and to the broader community. However, the Eighth Amendment to the U.S. Constitution requires that the decision to impose the death penalty must be based upon the nature and circumstances of the offense and upon the character and background of the offender. Juvenile or mentally retarded offenders often more than meet the first requirement but fail to meet the second requirement. The question posed by this article is whether they always fail to have a character and background sufficient to make them eligible for execution. Atkins has said "yes" for mentally retarded offenders, and the same answer surely must follow for juvenile offenders.
Atkins, Adolescence, and the Maturity Heuristic: Rationales for a Categorical Exemption for Juveniles from Capital Punishment
Jeffrey Fagan
In Atkins v. Virginia, the U.S. Supreme Court voted six to three to bar further use of the death penalty for mentally retarded offenders. The Court offered three reasons for banning the execution of the retarded. First, citing a shift in public opinion over the thirteen years since Penry v. Lynaugh, the Court in Atkins ruled that the execution of the mentally retarded is "cruel and unusual punishment" prohibited by the Eighth Amendment. Second, the Court concluded that retaining the death penalty for the mentally retarded would not serve the interest in retribution or deterrence that is essential to capital jurisprudence. Atkins held that mentally retarded people lacked a range of developmental capacities necessary to establish the higher threshold of culpability for the execution of murderers that the Court had established in Furman, Gregg, Coker, Woodson, and Enmund. Third, the Atkins Court noted that the impairments of mental retardation lead to a "special risk of wrongful execution."
The Atkins decision, though welcomed by both popular and legal policy audiences, naturally raises the question: what about juveniles? After all, the very same limitations in developmental capacities that characterize mentally retarded defendants also characterize a significant proportion of adolescent offenders. The parallels between capital punishment for adolescents and for the mentally retarded have been echoes both in popular and legal discourse since the resumption of capital punishment following Furman. Prior to Atkins, many groups protested the use of capital punishment for both types of offenders, invoking arguments against capital punishment that applied equally to each. The popular coupling of concerns about adolescents with the concerns about the mentally retarded seemed to naturally invite an extension of the Atkins Court’s reasoning to juveniles by highlighting the diminished capacity for culpability common to offenders of both groups. In fact, on August 30, 2002, in a rare dissent from an order declining to stay an execution, Justices Stevens, Breyer, and Ginsburg urged the Court to reconsider the constitutionality of allowing juveniles to be sentenced to death. In reference to the Atkins decision, the Justices argued that reexamining the "juvenile" issue was warranted, thereby underscoring yet again the similarities between both cases.
Atkins v. Virginia: A Psychiatric Can of Worms
Douglas Mossman, M.D.
This article offers one psychiatrist’s perspective on the problems Atkins raises for courts that handle death penalty cases. In contrast to the overarching aim of the majority’s opinion in Atkins—making the administration of capital punishment more equitable—the Supreme Court’s latest prescription of psychiatric help may only add a new layer of complexity and confusion to the already capricious process through which the U.S. criminal justice system imposes death sentences. To explain why, I first provide a brief review of the Supreme Court’s 1989 Penry decision, focusing on the role that evidence of mental retardation played in death penalty cases before Atkins was decided. Section III then considers Daryl Renard Atkins’s criminal case, which nicely illustrates the type of information that Penry required jurors to consider in making death penalty determinations—and the contributions of mental health professionals to those jury determinations. Following this, the article looks at how the Supreme Court majority in Atkins characterized the appellant’s mental condition and the diagnostic process. Section IV discusses the actual process of diagnosing mental retardation, the ambiguities in that process, and the way that courts and legislatures may distort clinical diagnosis for use in legal proceedings. Section V describes the contradiction between professional organizations’ treatment of, and response to, Atkins and these organizations’ customary stance on the use of diagnoses for non-clinical purposes. Section VI describes the potential implications of the Atkins decision for capital defendants with psychiatric problems as incapacitating as, or more disabling than, mental retardation. Section VII concludes with a summary of how the Atkins majority’s statements may affect testimony by mental health experts, and the effect of such testimony in future death-sentencing determinations.
What Atkins Could Mean for People with Mental Illness
Christopher Slobogin
This essay expands on an argument I briefly made a few years ago, to the effect that states that prohibit execution of mentally retarded people or juveniles violate the equal protection clause if they continue to authorize imposition of the death penalty on people with mental illness. At the time the earlier article was written, only thirteen states banned execution of people with retardation, and a somewhat greater number prohibited execution of children under sixteen. Now, of course, thanks to Jim Ellis et al. and the Supreme Court’s decision in Atkins v. Virginia, no state is permitted to impose a death sentence on someone who suffers from mental retardation. While the constitutional status of imposing the death penalty on children remains somewhat murky, the holding in Atkins barring execution of people with retardation, by itself, should mean that execution of people with mental illness is also banned nationwide, if the equal protection argument is accepted.
"Life Is in Mirrors, Death Disappears": Giving Life to Atkins
Michael L. Perlin
Anyone who has spent any time in the criminal justice system—as a defense lawyer, as a district attorney, or as a judge—knows that our treatment of criminal defendants with mental disabilities has been, forever, a scandal. Such defendants receive substandard counsel, are treated poorly in prison, receive disparately longer sentences, and are regularly coerced into confessing to crimes (many of which they did not commit). And those of us who know about this system know that it is a scandal of little interest to most lawyers, most citizens, and most judges. We further know that the one question on which we obsessively focus—the scope and role of the insanity defense—is virtually irrelevant to this entire conversation.
This is not news and has not been so for decades. We are content to "bury our heads in the sand" and ignore the ramifications of the morally corrupt system that we have created. But every once in a while, a case is decided that makes us reconsider this question and forces us to see what we do on a regular basis in that system. Atkins v. Virginia is such a case.
My thesis is simple: In spite of the impressive victory earned in Atkins by advocates for persons with mental disabilities, that victory may be illusory unless we look carefully at a constellation of legal, social, and behavioral issues that have combined to poison this area of the law for decades. Atkins gives us a blueprint with which to work, but we must remain vigilant to make sure that it does not become merely a "paper victory." This article will raise seventeen issues that must be considered rigorously and carefully if Atkins is to make any sense and if it is to have any true meaning for the population that is its focal point.
Straight Is the Gate: Capital Clemency in the United States from Gregg to Atkins
Elizabeth Rapaport
This Article will examine executive clemency decisions in capital cases, from 1977, the year of the first execution after the Supreme Court sanctioned the resumption of executions in Gregg v. Georgia, until June of 2002, when Atkins v. Virginia was decided. The power of the executive to grant clemency to a capital defendant can be viewed as a gateway—one last chance to be spared capital punishment. The gateway to clemency has been exceedingly narrow in this quarter century era of capital punishment. Perhaps surprisingly, it has been very narrow indeed for the three classes of capital prisoners who are the focus of this Beyond Atkins Symposium, and who might be expected to be particularly suitable candidates for clemency, i.e., juveniles, the mentally retarded, and the mentally ill. Clemency decisions are of course fraught for those at the threshold of execution, but they are also fraught for governors and Presidents charged with deciding clemency. This Article will also explore the narrow path the decision makers walk as they confront the moral and political risks the clemency power entails.
