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LGD 2004 (1) - Jon Yorke


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The Abolition of the Death Penalty for Persons with Mental Disabilities: Is the United States Learning?

Jon Yorke
PhD Candidate,
School of Law,
University of Warwick, UK


The United States Supreme Court abolished the practice of executing perons with mental isabilities in Atkins v Virginia. This decision is a prima facie guarantee of the rights of the mentally retarded, but in practice it appears that their rights are not yet adequately protected. In Atkins, the US Supreme Court did not hand down any guidelines for the states to adopt legislation governing capital trials with defendants claiming mental retardation. As a result, the individual states are currently refining their capital trial systems and trying to guide the judge and jury in fact-finding determinations, indicating what constitutes 'effective assistance of counsel' and establishing what the burden of proof is and whom is required to prove it. A capital conundrum has ensued, and the different players within the system are currently cooperating to find out exactly how constitutionally to apply Atkins v Virginia.

Keywords: Death Penalty, Diagnosis, International Law, Mental Retardation, Psychiatrist, Psychologist, United States Supreme Court

Author's Note

The author would like to offer thanks to Dr Ambreena Manji, not only for her comments on an earlier draft of this article, but also for her general academic guidance in general. Also, thanks to John Harrington for his comments as the journal guest editor, on earlier drafts.

This is a refereed article published on 10 June 2004.

Citation: Yorke, J, 'The Abolition of the Death Penalty for Persons with Mental Disabilities: Is the United States Learning ?'', Law, Social Justice & Global Development Journal (LGD) 2004 (1), <>. New citation as at 15/07/04: <>.

1. Introduction

In 1986, the United States Supreme Court in Ford v Wainwright[1] held that it was unconstitutional to execute the 'insane'. Within the Court's dictum, no guidelines were set out or proposed for the individual states to adopt legislative mechanisms to protect the rights of the insane, and the judicial complexities have been difficult to solve. Today there still appears to be problems with effectively implementing correct standards to protect the insane from the death penalty (Dupler, 2002), and it is proving difficult for the state courts to effectively adopt the mental health issues within the wider criminological function of the death penalty.

Unfortunately, this unsatisfactory jurisprudence has continued in Atkins v Virginia,[2] which abolished the death penalty for murderers who suffer from 'mental retardation'.[3] Again the US Supreme Court has been silent in another mental health issue within the death penalty trial. The incontrovertible factors left undecided by the US Supreme Court may mean that some with mental retardation will slip through the due process safeguards.

In determining the defendant's eligibility to a) be charged within a capital trial, and b) if found guilty to receive the death penalty, constitutional law required that an adversarial process be facilitated where all relevant issues may be presented to the fact-finders.[4] After Atkins v Virginia if a defendant is mentally retarded, the death penalty is constitutionally barred. However, determining mental retardation is not a simple task.[5] The individual states are currently on a voyage to discover how to apply the US Supreme Court's decision and ensure that their death penalty cases are constitutionally pursued. Establishing whether a defendant is eligible for the death penalty, now involves a harmonious co-operation between the capital trial lawyers (both prosecution and defence) and the psychiatrists and psychologists examining and diagnosing the defendant.

2. Background to Executing Those Mentally Retarded

Since the death penalty was reinstated in 1976,[6] the reported number of executions of those with mental retardation was 35 (Human Rights Watch, 2001).[7] In reality this is the tip of the iceberg, and the real number is incalculable. The US Supreme Court legitimised the execution of the mentally retarded in the decision of Penry v Lynaugh.[8] The Court stated that it was not an Eighth Amendment violation of 'cruel and unusual punishment' to execute a mentally retarded prisoner. When Penry was decided, only two states had statutes abolishing the execution of the mentally retarded. The Court looked only to the prevailing domestic standard of decency[9] and disregarded the customary international opinion, in deciding that a national consensus had not evolved and was thus inadequate to establish a constitutional prohibition.[10]

The public sentiment expressed in these and other polls and resolutions may ultimately find expression in legislation, which is an objective indicator of contemporary values upon which we can rely. But at present, there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offences for us to conclude that it is categorically prohibited by the Eighth Amendment.[11] 

However, in the 13 years following Penry, the number of individual states enacting legislation restricting and abolishing the executions of the mentally retarded had proliferated to eighteen. The US Supreme Court granted certiorari to consider again the constitutional issue in 2001.[12] It involved the question of executing a mentally retarded defendant from North Carolina. Before the case could be considered, the state enacted legislation preventing the execution of mentally retarded defendants.[13] The statute also applied retrospective relief for inmates currently on death row. The Attorney General of North Carolina then requested that the US Supreme Court dismiss the writ for certiorari. The writ was considered moot, but certiorari was granted in another case with the same issue. The Court was ready to reconsider its Penry decision in Atkins v Virginia.[14]

3. Outline of Atkins v Virginia

Daryl Renard Atkins was convicted of abduction, armed robbery and capital murder and sentenced to death. In 1996, Daryl and his friend William Jones abducted and robbed Eric Nesbitt. They robbed him of his personal possessions and also forced him to an automated teller machine to draw money. This event was captured on video camera. They then took him to an isolated place and shot him dead.[15] At trial, both defendants gave identical testimony, except both claimed that the other shot Eric Nesbitt. Jones' testimony was much more coherent and thus the jury was persuaded of his credibility, and Atkins was found guilty. At the sentencing phase (of the bifurcated trial process) the state introduced victim impact evidence (Yorke, 2000), and in mitigation, the defence presented medical testimony establishing that Atkins was mentally retarded. In spite of this mitigation evidence he received the death sentence.

Justice Stevens wrote the Court's opinion. The case raised three distinct issues, which were in the forefront of legal and political debate within the United States, and indeed in the eyes of the international community observing the US policy towards the death penalty (Edwards 2000). The decision examined, 1) legislative activity with regard to prohibiting the execution of mentally retarded inmates, 2) the penological function of the death penalty, and its effect on mentally retarded offenders, and 3) the 'evolving standards of decency'[16] within the international community. The judicial analysis of these areas led the Court to conclude, ' ... that such punishment is excessive and that the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender'.[17]  

In delivering the decision for the Court, Justice Stevens detailed the evidence from State legislatures – the enacting of statutes prohibiting those mentally retarded from execution. He noted that at the time of the Court's decision in Penry, the majority opinion concluded that two state statutes did not form a national consensus.[18] However, the legislative activity increasing the number to eighteen states with such statutes by the time the Court considered Atkins, did form a consensus.[19] In his opinion for the Court, Justice Stevens noted the speed with which the change in individual state laws had occurred. He stated:

It is not so much the number of these States that is significant, but the consistency of the direction of change...The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favour of the prohibition.[20] 

Individual states were forming a national consensus against the execution policy. The Eighth Amendment prohibition against administering 'cruel and unusual punishment' was antipathetic to and incompatible with, the execution of the mentally retarded.

The next issue considered by Justice Stevens was the penological effect of the death penalty on the mentally retarded. In Gregg v Georgia[21] the court stated that the purpose of the death penalty was for 'retribution and deterrence of capital crimes by prospective offenders'.[22] In Atkins, Justice Stevens noted:

Unless the imposition of the death penalty on a mentally retarded person 'measurably contributes to one or both of these goals (recognised in Gregg), it 'is nothing more than the purposeless and needless imposition of pain and suffering,' and hence an unconstitutional punishment'.[23]

Retribution[24] (ius talionis) – life for a life – is one of the main arguments adopted by death penalty supporters. However, there are methodological shortcomings in establishing a public opinion poll on retribution, because it is often determined by the emotional impact of the crime on individual people. As emotions vary, so too does the support for retribution being a legitimate reason for execution (Bedau, 1997).

In Enmund, the court noted that 'capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation'.[25] States without the death penalty have consistently lower murder rates than states that execute people (Death Penalty Information Center, 2002). It is difficult to see how the death penalty acts as a deterrent to murder. Furthermore, if the mechanism for deterrence is to make prospective murderers stop and think before they commit the crime, this cannot properly function for those who are mentally retarded. Those with mental retardation have cognitive and behavioral deficiencies, which reduces their ability to learn from penological punishments designed to deter crime. They have a reduced understanding of the consequences of their actions. How therefore would the existence of the death penalty prevent them killing? On the evidence, it does not. As a result, executing the mentally retarded will not further this penological reason for the death penalty.

Thirdly, Justice Stevens considered the evolving standards of decency in the international community, and in a footnote cited the importance and relevance of an amicus curiae brief from the European Union.[26] The European Union brief was submitted in McCarver v North Carolina[27] , a case which was previously held to be moot and certiorari was denied. In referring to the amici, Justice Stevens observed that, '... within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved'.[28] It should be stated that Justice Stevens only referred to the EU brief in a footnote. However, as noted by Professor Speedy Rice in a forum address at the University of Warwick, (Rice and Keefe, 2004)[29] the jurisprudential implications of this footnote are far-reaching. Even though it was just a footnote, its presence had a profound effect for the introduction of international law considerations by the US Supreme Court. Professor Rice noted that the 'seemingly insignificant footnote produce a venomous backlash by the dissenters', and this is a crucially important point, as it displays the judicial analysis of the Court in allowing international law into United States jurisprudence. In effect, Justice Stevens, facilitated the juridical application of international law through a footnote.

Chief Justice Rehnquist, with Justices Scalia and Thomas joining him, and Justice Scalia writing separately, issued a strongly worded dissenting opinion denouncing Justice Stevens' reliance on international jurisprudence. The Chief Justice stated:

I fail to see however, how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination ... we have since rejected the idea that the sentencing practices of other countries could 'serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.[30]   

This is a peculiar statement, as the Chief Justice seems to have omitted previous US Supreme Court jurisprudence on the material influence of international opinion. In Trop v Dulles the Court viewed international standards when concluding that the Eighth Amendment clause should be interpreted using the 'evolving standards of decency that mark the progress of a maturing society'.[31] In Coker v Georgia the Court considered the 'climate of international opinion.'[32] In Enmund v Florida the Court noted 'the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe.'[33] In Ford v Wainwright the Court noted 'the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today.'[34] In Thompson v Oklahoma the Court looked to the international standards of executing juveniles.[35] Also, in a law journal article, Justice Blackmun stated:

The drafters of the [Eighth Amendment] were concerned, at root, with the 'dignity of man,' and understood that 'evolving standards of decency' should be measured, in part, against international norms. (1994)

It is difficult to see why such overwhelming international opinion should not be applied in this case. However, Justice Scalia in Thompson v Oklahoma[36] stated:

We must never forget that it is a Constitution for the United States of America that we are expounding ... [W]here there is not first a consensus among our people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.[37]

Justice Scalia applies a strict constructionist view to the Constitution, but following the dicta above, it appears there is room for a Constitutional interpretation to take within it, the views of the international community. Clearly other decisions relied on norms drawn from the international community in restricting the United States capital punishment system. However, within the current political and legal climate, which is moving towards further restricting the death penalty, a wider door has been opened and norms drawn from the international community can step in. Atkins has pushed the door further open, and this paper argues that international law and foreign-domestic law can be used to help ensure the observance of defendant's rights. Indeed, the more that counsel argues the legitimacy of international law, the more frequently Courts will adjudicate on applicability, and thus a corpus of international opinion will help ensure the protection of those mentally retarded from the death penalty. Below is a consideration of international norms and jurisprudence, regarding the abolition of the execution of the mentally retarded.

4. International Consensus against Executing those Mentally Retarded 

Although international opinion has almost unanimously stood against executing mentally retarded inmates for thirty years, only since Atkins has the United States practice reflected the rhetoric of international customary law (Edwards, 2000; Schabas, 2002). The United Nations and other human rights organisations have developed a strong body of legal mechanisms against the execution of mentally retarded defendants. In 1971, the United Nations adopted a Declaration protecting the rights of the mentally retarded.[38] The Declaration stated the requirement for countries to ensure that defendants' rights were observed, and that, 'if prosecuted for any offense, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility.'[39] Further resolutions of the United Nations have recognised the distinctions between retarded, handicapped and disabled persons. However, they all share a common goal in recognising and helping to enforce the rights of disabled people.[40]

In 1989, the United Nations Economic and Social Council (ECOSOC) passed by consensus a resolution that recommended 'eliminating the death penalty for persons suffering from mental retardation or extremely limited mental competence.'[41] To reinforce the importance of this resolution the UN Commission on Human Rights confirmed this position by consistently urging those states that retain the death penalty not to impose the death penalty on persons suffering from 'any form of mental disorder.'42] Also, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions had argued against the United States policy of executing the mentally retarded. In 1998, the Special Rapporteur, Bacre Waly Ndaiye stated, 'because of the nature of mental retardation, mentally retarded persons are much more vulnerable to manipulation during arrest, interrogation, and confession. Moreover, mental retardation appears not to be compatible with the principle of full criminal responsibility.'[43]

In 2000, the Special Rapporteur called for governments who continue to use the death penalty, 'to take immediate steps to bring their domestic legislation and legal practice into line with international standards prohibiting the imposition of death sentences in regard to minors and mentally ill or handicapped persons.'[44] Furthermore, just before the Atkins decision, the newly appointed Special Rapporteur, Asma Jahangir, stated that she had sent four unsuccessful appeals to the United States. She stated that the four inmates were executed, 'despite indications that they were suffering from mental illness or disability.'[45] One year after Asma Jahangir's appeals, the United States brought their capital process into line with international opinion.

5. The Burden of Proof

At present, the mentally retarded within the United States are not adequately protected, as even at the beginning of the capital judicial process there are complicated legal questions as to the burden of proving mental retardation. Following the Atkins decision the individual states are attempting to overcome the difficulties posed with determining mental retardation.[46] Initial issues to be considered by the states legislatures are: a) what is the standard of the burden of proof; b) when should arguments be raised regarding the defendant's mental condition (pre-trial to determine whether a capital trial is appropriate, or at the mitigation phase, as a mitigating factor against the death sentence – or both); and c) who decides whether the standard has been achieved?

Before these factors would be considered, the defendant has a prima facie responsibility to prove that, at a minimum, there is 'sufficient doubt' to the his/her mental condition.[47] This would enable a pre-trial hearing to determine whether a capital trial is appropriate. The recent US Supreme Court decision in Ring v Arizona provides a useful guideline. The Court held:

As in Jackson, the bifurcated approach makes sense because its two prongs address two separate (although factually related) questions. The first, to be addressed by the judge, is the legal issue of whether the defendant is a person who is eligible for the death penalty. If the court does not find the defendant death-eligible because of mental retardation, it would be unconstitutional to proceed with a capital trial. The second inquiry, by the jury, is whether the prosecution has demonstrated that the defendant is factually an individual upon whom the death penalty may be imposed. Condemning a defendant to death who has properly raised the issue of mental retardation then becomes a 'contingent on the finding of a fact' that is a necessary precondition to a capital sentence.[48] 

The Court's decision in Ring appears to solve the issue of burden of proof. Under Ring if a capital trial has ensued, then the prosecution will have to prove 'beyond a reasonable doubt'[49] that the defendant is not mentally retarded. This higher threshold aims to adequately protect the due process rights of the defendant. James Ellis has considered these procedural difficulties, and he has advised individual states to consider the following, a) on the issue of burden of proof for the defendant - 'whose laws currently impose such a heightened burden on the defendant should amend their statutes to avoid unnecessary litigation over this constitutional infirmity (Ellis, 2002), and b) on the issue of the prosecution's burden to prove beyond as reasonable doubt within the capital trial, if the states ignore this heightened standard – they 'do so at their peril of having their new statute declared unconstitutional, and risk the necessity of re-trying capital defendants convicted and sentenced under that statute (Ellis, 2002).

Establishing the requisite burden of proof involves a sensitive co-operation between the lawyers and the psychiatrists/psychologists. Hence the role of the psychiatrist and psychologist has never been more important within the capital judicial process, because in order to prove mental retardation the defendant will need to rely on expert examination and diagnosis. The use of expert testimony is of fundamental importance because if the defendant is mentally retarded, the mental condition will infringe upon the defendants foreknowledge and understanding of the consequence of his actions, and 'punishment must be tailored to his personal responsibility and moral guilt'.[50] 

The co-operation of legal and psychiatric/psychological analysis is juxtapositioned to determine mens rea and the starting point is the understanding of the definition of mental retardation as set out by the AAMR (American Association on Mental Retardation, 1992), the APA (American Psychiatric Association, 2000) and the World Health Organisation (WHO, 1992). Justice Stevens cited both the AAMR and APA definitions the footnotes to his Atkins opinion[51] , and both definitions are materially the same.

The AAMR definition is:

Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before the age 18[52] (AAMR, 1992).

The APA definition is extremely similar:

The essential feature of mental retardation is significantly subaverage general intellectual functioning that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety. The onset must occur before age 18 years. Mental retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system (APA, 2000, DSM IV, p 42-43).

In considering the AAMR definition, three common components for the diagnosis of mental retardation are noted by James Ellis, a) substantial intellectual impairment, b) impact of that impairment on everyday life of the individual, and c) appearance of the disability at birth or during the person's childhood. If a defendant does not meet the requirements, then he/she is not mentally retarded (Ellis, 2002).

The AAMR definition was revised in 1983, 1992 and 2002, but each revision related to part b) of the definition, the portion concerned with adaptive deficits. There is diagnostic consistency to parts a) and c), and hence the class of persons included within the category is not affected; see below as this is relevant for defendant Fourteenth Amendment challenges of 'equal protection of the law.' Also there are different classifications of mental retardation, and it appears that Atkins does not apply to all classifications. Deryl Renard Atkins was diagnosed as 'mild mentally retarded.' The World Health Organisation has identified six classes of mental retardation, a) mild, b) moderate, c) severe, d) profound, e) other, and f) unspecified (WHO, 1992). The individual states are now discovering the legal and diagnostic limits of mental retardation. Currently there is wide room for maneuver, and it is likely that in the near future, the US Supreme Court will have to rule on the constitutionality of different states' standards. The nuances in state diagnostic standards need to be clearly identified.

6. Role of the Expert

The role of the psychiatrist and psychologist is to aid in the process of legal determination. A thorough analysis is required as sub-standard examinations may produce deleterious results for the defendant, as noted by Olvera, et al, (2000) who were members of the defence team for two defendants, Ronnie Miller[53] and Thomas Rogers.[54] The psychiatrists within the defence team believed that both suffered from mental retardation, however, state psychiatrists found Miller to be mentally retarded, and that Rogers was not. It appeared that the state psychologists formed their opinion upon conjecture, and according to Olvera et al:

The outcomes of both cases turned on the issue of assessment of adaptive behavior. In the Miller case, many hours were spent obtaining data from family members to complete a standardied adaptive behavior scale and using structured interviews of family members and friends to gather ecological information about Miller's adaptive abilities. Special efforts were made to obtain delineate Miller's actual abilities. In the Rogers case, a standardised test of adaptive behavior was not administered, even by the clinical psychologist who testified for the defendant, and the areas of adaptive behavior assessed tended to be global in nature. That is, the three experts who agreed that Rogers did not have mental retardation relied heavily on the facts that the defendant worked as an electrician's helper and that he was able to drive a car. They concluded that Rogers did not exhibit substantial impairment of adaptive behavior (Olvera, et al, 2000).

Clearly, psychiatric analysis carries extreme weight within the decision-making process as to whether a defendant is mentally retarded and thus ineligible for the death penalty. The role of the psychiatrist is fundamentally important, as the court must, 'have before it all possible relevant information about the individual defendant whose fate it must decide.'[55] During pre-trial deliberations, the lawyers for the defence may introduce psychiatric reports and testimony arguing that the defendant is mentally retarded, and thus not eligible for a capital trial. However, in the event that a capital trial has been found to be appropriate, such expert evidence may be introduced at the sentencing phase, if the defendant has been found guilty. Psychiatric testimony will be put forward in mitigating the defendant's culpability for the crime, and some states also require psychiatric assessment as to possible recidivism (Showalter and Bonnie, 1984).

As noted by Olvera, et al, (2000) correct diagnosis is made more complex when psychiatrists appear for both prosecution and the defence with different interpretations of the defendant's mental state. One important consideration for defence lawyers and psychiatrists, is to ensure that the state does not unlawfully diminish their diagnosis. The combined team of the defence lawyer and the psychiatrist are the aegis for their client, and they need to ensure that the expert testimony, and report, is properly considered.

The attorney's consideration of the defendant's mental condition may be a crucially important part of the defence strategy, and if inadequate consideration is give to the mental condition of the defendant it may fall below professional standards of representation. In Wiggins v Smith the US Supreme Court held that the attorney's decision not to investigate further the defendant's life history, but simply rely upon the pre-sentence investigation and department of social services records fell below prevailing professional standards.[56] In delivering the Court's decision, Justice O'Connor relied upon the legal principles governing claims of 'ineffective assistance of counsel,'[57] which is a violation of the Sixth Amendment of the United States Constitution. In order to prove that an attorney is ineffective a two pronged test must be satisfied: the petitioner must show, a) that counsel's performance was deficient, and b) that the deficiency prejudiced that defence.[58] In Wiggins there was a serious question as to the defendant's mental retardation, and counsel failed to present relevant arguments in mitigation during the sentencing phase. US Supreme Court jurisprudence on 'effective assistance of counsel' claims reveals a stringent approach by the Court (see Bright, 1994), but following Wiggins this Sixth Amendment jurisprudence may be applied in favour of those diagnosed as 'mentally retarded.' In 2002, the US Supreme Court gave a last minute stay of execution of a defendant who was 'mildly mentally retarded' when such evidence of mental condition was 'not raised previously at trial, or in extensive proceedings for direct and collateral review.'[59] 

7. Does Ake Guarantee Competent Expert Testimony ?

In 1985, in Ake v Oklahoma,[60] the US Supreme Court held that the US Constitution requires a trial court to appoint a psychiatric expert to assist an indigent defendant when mental illness may be a 'significant factor' in determining a person's guilt.[61] However, it appears that an indigent defendant has no remedy if the psychiatrist does not prove to be an expert in the area required. The US Supreme Court declined to hear the claim that a defendant has the right to 'competent' psychiatric evaluation and testimony in Stewart v Angelone.[62] Thus it would appear that due to the unpredictability of psychiatric diagnoses in death penalty cases, the Ake right to psychiatric assistance needs to include the right to a 'partisan' psychiatrist to aid in the defence (Goodman, 1986).

Under Ake the courts should provide for an adequate adversarial process, but not all trial courts have followed this. Within the Circuit Courts of Appeals there is an inconsistency as some Circuit Courts have applied the Ake principle against the defendant,[63] whereas other Circuit Courts seek to interpret Ake to balance the adversarial process.[64] This is another area that the US Supreme Court may have to revisit. Statistical studies of diagnostic standards reveal clear discrepancies:

The chances of a second psychiatrist agreeing with the diagnosis of the first psychiatrist are barely better that 50-50 ... and the reliability of psychiatric judgments of specific diagnostic categories is even lower- somewhere in the neighbourhood of 40 percent. In other words, if a first psychiatrist testifies that a prospective patient suffers from involutional melancholia or some other specific, monorganic diagnosis, it is more likely than not that a second psychiatrist would disagree (Ennis and Litwack, 1974).

Furthermore, the adversarial process needs to facilitate adequate opportunities for both defence and prosecution cross-examination of expert testimony (See Manarin, 2002), in order to expiate any infringements of due process. Indeed, as Roger Hood has recognized, though the final decision hinges on many trial factors, psychiatric testimony is of the utmost importance. He observes that the case would be determined 'on the sympathy of the jury, the heinousness of the crime, and the competence, authority and persuasiveness of the psychiatrists before the court' (Hood, 2002).

8. Diagnose - Not Penalise

Health care professionals undertake a profoundly important role, and the ethical considerations of their actions are paramount (Diamond 1993). The courts trust the experts to correctly diagnose the mental condition of a defendant. The court relies upon the knowledge and skills of the expert, and thus the moral implications are the highest, because life and death decisions are predominantly being made upon expert opinion (Keynes, Edwards and Perske, 2002). Any errors made in diagnosis are not innocuous, and emotion must not override professional opinion. From a psychiatrist's point of view, Melamed et al conclude:

In the psychiatrist, as in the general public, serious criminal behaviour such as murder arouses deep emotional feelings in the examiner because of his own values, thoughts and opinions (2003).

In 2000 Faber, et al, conducted the first detailed survey on physician's attitudes towards the death penalty (Faber et al, 2000). This survey predominantly focused on the physicians who have been or may be asked to participate in the actual execution of inmates. The survey revealed that 46% of physicians (who responded to the survey) thought that the death penalty was a deterrent to murder, and this may explain the willingness of some physicians to insert the catheter into the arm of an inmate strapped on the gurney, or read EKG monitors when the inmate is dying in the gas chamber or examine for heart rates after electricity was passed through the inmate in 'Ol' Sparky.'[65]

Of course this was not a survey of psychologists and psychiatrists diagnosing defendants before or during trial, but the information is relevant to the health care profession's opinions of the penological function of the death penalty. The psychological and psychiatric experts should understand that such sentiments are incorrect. It is difficult to prove that the death penalty is a deterrent for murder. Roger Hood has noted:

A state-by-state analysis ... revealed that there is no pattern that would suggest that those states which have executed offenders have experienced any greater decline in their homicide rates that have states which have no death penalty at all. For example, between 1980 and 1985 the homicide rate fell by 21 percent in Florida and 25 percent in Georgia, both of them jurisdictions with relatively high rates of execution at the time; but over the same period the homicide rate in New York, a state without the death penalty (during 1980 to 1985), also fell by 26 per cent (Hood, 2002).

Hence when diagnosing defendants the psychologists and psychiatrists must not be influenced by their personal attitude towards the death penalty. Indeed, the importance of this is signaled by the fact that the prosecution has, on occasion, sought to find psychiatrists likely to make diagnoses favourable to their cases.[66] Correct information on the criminological function of the death penalty, widely disseminated among mental health professionals, will go a long way towards counteracting inaccurate rhetoric on the death penalty, which seems to have taken hold in no small degree among some mental health professionals. (Crowley, et al, 1995)

9. Initial flaws in post Atkins Statutes

Within the conundrum of difficulties surrounding the diagnosis of mental retardation, it would appear appropriate to analyse future state statutory definitions on the diagnostic procedures, to investigate whether any inconsistencies violate the Fourteenth Amendment guarantee of, 'equal protection under law.' However, it should be noted that pre-Atkins the US Supreme Court held, in a non-death penalty case, in City of Cleburne, Texas v Cleburne Living Center,[67] that mental retardation issues may not receive a heightened scrutiny under the Fourteenth Amendment. Furthermore, post-Atkins there may be grounds to argue if state statutes do not produce consistency in sentencing, then an unfairness may ensue which may result in a violation under the Fourteenth Amendment.[68] Indeed, the Amendment guarantees that all people should be treated equal under law, but in these early stages discrepancies have surfaced within state statutes on mental retardation. Two areas are notable, a) maximum age of manifestation of mental retardation, and b) IQ levels.

The APA and the AAMR both recognise that mental retardation must manifest by the age of 18 years old, but in contravention of these standard definitions the Pennsylvania Code established that mental retardation must manifest by the age of 22 years old.[69] Thus if a defendant in Pennsylvania was charged with murder and mental retardation manifestation at nineteen, he/she would not receive the death penalty. If he/she was charged in a different state the death penalty could be imposed. It would appear that there inconsistencies in the state legislative provisions. Furthermore, some state statutes do not set out specific IQ levels to determine mental retardation diagnosis.[70] Roger Hood's lament testifies to the problem when IQ levels are not set within state statutory provisions, 'It is ironic that, shortly after the Atkins decision was handed down, a Texas jury found John Paul Henry, at his third trial, not to be mentally retarded and sentenced him once again to death, despite the fact that he had never tested above an IQ level of 70,' (Hood, 2002).

10. Conclusion

Prima facie the United States decision in Atkins v Virginia appears to be an aegis for those mentally retarded against the death penalty. In practice it is only a small step in the right direction. There are still some acute legal questions as to state judicial formulation of laws to ensure that those mentally retarded do not receive the death penalty. This paper has aimed to show that this mental health defence will only be constitutionally applied if there is successful cooperation between psychiatrist/psychologist and defence counsel. Lawyers should understand how the mental health issues apply in the case to ensure 'effective assistance of counsel,' and health professionals need to ensure that thorough, and correct, examination and diagnosis is achieved. Only then will the states be achieving constitutionally acceptable death penalty practices. At the moment the states are on a voyage towards the unknown and this was purposely allowed by the United States Supreme Court. The states are the 'Petri dish' for future judicial determinations, and the federal judiciary is allowing the states to try to grapple with the complex issues. Will Roger Hood's lament be the first of many, or will the United States learn how to effectively protect the rights of those who suffer from mental retardation?

[1] 477 US 399 (1986)
[2] 112 S Ct 2242 (2002)
[3] The United States use the term 'mental retardation,' and Britain uses the term 'learning disabilities' to identify the specific mental illness. In this article the term 'mental retardation' is used throughout.
[4] Furman v Georgia, 408 US 238 (1972); Gregg v Georgia, 428 US 153 (1976); Lockett v Ohio, 438 US 586 (1978)
[5] infra Section 5: Burden of Proof.
[6] Gregg v Georgia, supra, n 5.
[7] For diagnostic standards of mental retardation see infra Section 5: Burden of Proof, also, (AAMR, 1992) and (APA, 2000).
[8] 492 US 302 (1989).
[9] See Trop v Dulles, 356 US 86 (1958) (plurality opinion).
[10] See infra, discussion below on the Court's interpretation of the relevance of international law in the Court's Eighth Amendment jurisprudence. Recently the US perspective on non-applicability appears to be loosing ground: see Ginsburg, 2003.
[11] supra note 8 at 335. However, four of the nine judges felt that there was a national consensus. Justices Brennan and Marshall, at 341, and Justices Stevens and Blackmun, at 349.
[12] McCarver v North Carolina, No. 00-8727 (2001).
[13] N.C. Gen. Stat. Ann. 15A-2005, 15A 2006 (West 2002).
[14] supra, n 3.
[15] The facts were recorded by Justice Stevens, supra at p 2242.
[16] supra n 9.
[17] supra, n 3 at 2251.
[18] 492 US, at 334.
[19] See Atkins v Virginia 122 S.Ct. 2242, fn 12-18 for individual state statutes. In 1988 Georgia enacted a statute; Maryland in 1989; Kentucky and Tennessee in 1990; New Mexico in 1991; Arkansas, Colorado, Washington, Indiana and Kansas in 1993 and 1994; New York in1995; Nebraska in 1998; South Dakota, Arizona, Connecticut, Florida, Missouri and North Carolina had all enacted statutes by 2001. In Texas, Virginia and Nevada, statutes are currently being considered by the state governments.
[20] supra n 3, at 2249.
[21] 428 US 153 (1976).
[22] ibid, at 183.
[23] supra, n 3 at 2251, Stevens J, citing, Enmund v Florida 458 US 782, 478 (1982).
[24] See Gregg v Georgia, supra.
[25] 458 US, at 799
[27] supra, n 11.
[28] supra, note 3 at 2242 n 21 (2001) (dissenting opinion).
[30] Ibid, 2252-59 (2001).
[31] 356 US 86 (1958) (plurality opinion).
[32] 433 US 584, 596 (1977).
[33] 458 US 782, 796 n.22 (1982).
[34] 477 US 399, 409 (1986).
[35] 487 US 815, 830 (1988).
[36] 487 US 815 (1988).
[37] ibid, at 868-869.
[38] Declaration on the Rights of Mentally Retarded Persons, UN Doc. A/8429 (1971).
[39] ibid, at 6.
[40] Declaration on the Rights of Disabled Persons, A/RES/33447 (XXX) (1975); Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, A/RES/46/119 (1991); Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, A/RES/48/96 (1993).
[41] Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, E.S.C. Res. 1989/64, UN ESCOR, para 1, UN Doc. E/RES 1989/64 (1989).
[42] The Question of the Death Penalty, Hum Rts Comm Res 1999/61; The Question of the Death Penalty, Hum Rts Comm Res 2000/65; The Question of the Death Penalty, Hum Rts Comm Res 2001/68.
[43] Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur, UN GAOR, Hum Rts Comm, 54th Sess., para 145 (1998).
[44] Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, UN GAOR, Hum. Rts. Comm, 56 Sess, para 97 (2000).
[45] Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, UN GAOR, Hum Rts Comm, 57th Sess, para 82 (2001)
[46] See infra Professor James Ellis has initially identified certain areas to be considered by the state legislatures.

[47] Pate v Robinson, 383 US 375, 387 (1966).
[48] Supra, n 3, at 2439.
[49] Ibid 2439.

[50] Enmund v Florida, 458 US 782, 793 (1982)
[51] supra, n 3 at fn 3.
[52] See also <> for analysis of related mental health issues and diagnostic standards.
[53] Indiana v Miller, Marion County Superior Court, Criminal Division, Case NO. 49G059508CF110486 (1998).
[54] Indiana v Rogers, Lake County Superior Court, Case Number, 45G049502CF00056 (1997)
[55] Jurek v Texas, 428 US 262, 276 (1976).
[56] 123 S.Ct. 2527 (2003).
[57] Strickland v Washington, 466 US 668 (1984).
[58] 466 US 668, 687 (1984).
[59] per Justice Scalia in his dissent in Moore v Texas, 535 US 1110 (2002), cert granted and stay of execution.
[60] 470 US 68 (1985).
[61] ibid at 83.
[62] 149 F.3d 1170 (4th Cir 1997, cert denied, 524 US 978 (1998), (see Burns, 1994).  
[63] Martin v Wainwright, 770 F.2d 926 (11th Cir. 1985) the court noted at p 935, 'nothing in Ake even suggests that a defendant is constitutionally entitled to a favorable psychiatric opinion.'  
[64] United States v Sloan, 776 F.2d 926 (10 Cir. 1985) the court noted at p 926, that a defendant is entitled to a psychiatrist 'to present the defendant's side of the case.'
[65] For the ethical debates on the participation of health care professional;s within the capital punishment system (see Ferris & Welsh, 2004).
[66] United States v Byers, 740 F.2d 1104 (DC Cir. 1984). Presumably, under Pawlyk v Wood, 248 F 3d 815 (9th Cir. 2001) cert denied, 122 S.Ct. 822 (2002) because the prosecution's compelled disclosure of a defence requested psychiatric evaluation to rebut an insanity defence did not violate Ake, the defence would be able to compel disclosure of the prosecution's diagnostic report which was not favourable to the state's case?
[67] 473 US 432 (1985).
[68] Post-Furman jurisprudence has considered 'death is different.' Hence, it is possible that post-Atkins jurisprudence may adopt a heightened scrutiny, and this was clearly seen in Wiggins.
[69] The Pennsylvania Code: 55 Pa Code ss. 6210.63.3. Diagnosis of Mental Retardation.
[70] For example, see Missouri Legislation Bill SB 267 (2001).



Ake v Oklahoma,
470 US 68 (1985)

Atkins v Virginia,122 S.Ct. 2242 (2002)

Bigby v Cockrell,
340 F.3d 259 (5th Cir. 2003)

Coker v Georgia,
433 U.S 584 (1977)

Cooper v Oklahoma
, 517 US 348 (1996)

Davis v Scott,
51 F.3d 457 (5th Cir. 1995)

Enmund v Florida,
458 US 782 (1982)

Ford v Wainwright,
477 US 399 (1986)

Furman v Georgia,
408 US 238 (1972)

Godfrey v Georgia,
446 US 420 (1980)

Gregg v Georgia,
428 US 153 (1976)

Jurek v Texas,
428 US 262 (1976)

Locket v Ohio,
438 US 586 (1978)

Martin v Wainwright,
770 F.2d 926 (11th Cir. 1985)

McCarver v North Carolina,
No. 00-8727 (2001) 

Medina v California,
505 US 437 (1992)

Moore v Texas,
535 US 1110 (2002)

Pate v Robinson,
383 US 375 (1966)

Pawlyk v Wood,
248 F.3d 815 (9th Cir. 2001)

Penry v Lynaugh,
492 US 302 (1989)

Ring v Arizona, 112 S.Ct. 2428 (2002)

Stewart v Angelone,
524 US 978 (1998)

Strickland v Washington,
466 US 668 (1984)

Thompson v Oklahoma,
487 US 815 (1988)

Trop v Dulles,
356 US 86 (1958)

United States v Byers,
740 F.2d 1104 (D.C. Cir. 1984)

United States v Sloan,
776 F.2d 926 (10th Cir. 1985)

Wiggins v Smith,
123 S.Ct. 2527 (2003)

Books and Journals

American Association of Mental Retardation (1992) Mental Retardation: Definition, Classification, and Systems of Supports 5, ed. 9th Edition. Ruth Luckasson.

American Psychiatric Association (2000) Diagnostic and Statistical Manual of Mental Disorders 41, 4th edition.

Bedau, H A (1997) The Death Penalty in America: Current Controversies (Oxford: Oxford University Press).

Bedau, H A (1978) 'Retribution and the Theory of Punishment', Journal of Philosophy 75, pp 601- 620.

Blackmun, H A (1994) 'The Supreme Court and the Law of Nations', Yale Law Journal 104,
p 39.

Bright, S B (1994) 'Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer', Yale Law Journal 103, p 1835.

Burns, G B (1994) 'The Right to Effective Assistance of a Psychiatrist under Ake v Oklahoma', Criminal Law Bulletin 30.

Casscelles, W and Curran, W (1982) 'The Death Penalty and Lethal Injection: Recent Developments', New England Journal of Medicine 307, pp 1532-1533.

Crowley, J P et al (1995) 'Capital Punishment and the Physician: The Views of 6 Rhode Island Physicians', R I Med 78, pp215-221;

Death Penalty Information Centre (2002) The Death Penalty in 2002: Year End Report. Available at <>

Diamond, SS (1993) 'Instructing on Death: Psychologists, Juries and Judges', American Psychologist. 48(4), p 423.

Dupler, B L (2002) 'The Uncommon Law: Insanity, Executions, and the Oklahoma Criminal Procedure', Oklahoman Law Review 55, p 1.

Edwards, W J (2000) 'Execution of People with Mental Retardation: A Violation of National and Customary International Law', Mental Retardation April 2000, pp 173-176.

Ellis, J (2002) 'Mental Retardation and the Death Penalty: A Guide to State Legislative Issues', Death Penalty Information Center website at <>.

Ennis and Litwack (1974) 'Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom', California Law Review 62, p 693.

European Union (2000) Amicus Curiae brief submitted by the European Union in McCaver v North Carolina, cert. denied. <>

Ferris, R and Welsh J (2004) 'Doctors and the Death Penalty: Ethics and a Cruel Punishment', in Hodgkinson, Peter and Schabas, William (eds) Capital Punishment: Strategies for Abolition (Cambridge: Cambridge University Press).

Ginsburg, R B (2003) 'Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication', Idaho Law Review 40, pp 1, 3.

Goodman, M P (1986) 'The Right to a Partisan Psychiatric Expert: Might Indigency Preclude Insanity?', New York University Law Review 61, p 703.

Harris, D A (1990) 'Ake Revisited: Expert Psychiatric Witnesses Remain Beyond Reach for the Indigent, N.C.L. Rev 68, p 763.

Hart, H L A (1968) Punishment and Responsibility (Oxford: Oxford University Press).

Hasday, L (2002). 'The Hippocratic Oath as Literary Text: A Dialogue Between Law and Medicine', 2 Yale Journal of Health Policy, Law and Ethics 2, pp 299-315.

Hood, R (2002) The Death Penalty: A Worldwide Perspective, 3rd edition (Oxford: Oxford University Press).

Human Rights Watch (2001). 'Beyond Reason: The Death Penalty and Offenders with Mental Retardation', Human Rights Watch 13(1).

Keynes, D and Edwards, W (1997) 'Mental Retardation and the Death Penalty: Current Status of Exemption Legislation', American Bar Association and Physical Disability Law Reporter 21 (5), pp 687-696 .

Keynes, D, Edwards, W and Perske, P (2002) 'People with Mental Retardation are Dying, Legally at Least 44 have been Executed', Journal of Mental Retardation 40 (3), pp 243-244.

Manarin, B (2002) 'Criminal Responsibility and Mental Health Experts: The ABCs of Cross-Examination', Medical Science Law 42(2), pp 136-145.

Melamed, Y et al (2003) 'The Concept of Severe Mental Disorder and the Amended Law of Reduced Punishment for Murder', Medical Law 22, p 259.

Megivern, J (2004) 'Religion and the Death Penalty in the United States: Past and Present', in Hodgkinson, Peter and Schabas, William (eds) Capital Punishment: Strategies for Abolition (Cambridge: Cambridge University), pp 116 - 142.

Olvera, D.R., et al Mental Retardation and Sentences for Murder: Comparison of Two Recent Court Cases, Mental Retardation, Vol. 38, No. 3, 228-233, June 2000.

Pataki, G (1998) 'The Death Penalty as a Deterrent', in Bender, David et al (eds) Does Capital Punishment Deter Crime? An Opposing Viewpoints Series (San Diego: Greenhaven Press).

Rice, S, and Keefe, D (2004) 'Death Penalty Issues within the United States', Paper presented at the Warwick Law School Forum, 'Is the Death Penalty About to Execute Itself?' University of Warwick, UK, 28th February 2004. For the forum details see: <>  

Schabas, W A (2002) The Abolition of the Death Penalty in International Law, 3rd edition. (Cambridge: Cambridge University Press).

Showalter, C R and Bonnie, R J (1984) 'Psychiatrists and Capital Sentencing: Risks and Responsibilities in a Unique Legal Setting', Bulletin of the American Academy of Psychiatry and Law 12 (1984).

Sorell, T (1987) Moral Theory and Capital Punishment (Oxford: Basil Blackwell and Open University) (1987).

von Drehle, D (1995) Among the Lowest of the Dead: The Culture of Death Row (New York: Times Books).

World Health Organisation (1992) The ICD-10 Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines (Geneva: WHO)

Yorke, J (2002) 'Victim Impact Evidence and Victim's Rights During Capital Trials in the United States', ALJ Journal, pp 25-35.
The Constitution of the United States of America

Amendment V [1791]
...nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law...
Amendment VI [1791] have Assistance of Counsel for his defence.0
Amendment VIII [1971]
...nor cruel and unusual punishments inflicted.
Amendment XIV [1868], Section 1.
...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

United Nations Documents

Declaration on the Rights of Disabled Persons, A/RES/33447 (XXX) (1975).

Declaration on the Rights of Mentally Retarded Persons, GA Resloution 2856 (XXVI), UN Doc. A/8429 (1971).

Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur, UN GAOR, Hum Rts Comm, 54th Sess, paras 145, 58 (1998).

Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, UN GAOR, Hum Rts Comm, 56 Sess, para 97 (2000).

Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, UN GAOR, Hum Rts Comm, 57th Sess, para 82 (2001).

Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, ESC Res 1989/64, UN ESCOR, para 1, UN Doc E/RES 1989/64 (1989).

Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, A/RES/46/119 (1991).

Report by the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, E/CN/4/1997/60 (1996).

Report of the Secretary-General, Capital Punishment and Implementation of the Safeguards Guaranteeing Protection of Those Facing the Death Penalty, UN Doc E/CN15/2001/10 (2001).

Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, A/RES/48/96 (1993).

The Question of the Death Penalty, Hum Rts Comm Res 1999/61.

The Question of the Death Penalty, Hum Rts Comm Res 2000/65.

The Question of the Death Penalty, Hum Rts Comm Res 2001/68.