If this Court chooses to overturn portions of Penry v. Lynaugh, 492 U. S. 302 (1989) and Stanford v. Kentucky, 492 U. S. 361 (1989) and create a per se exemption from capital punishment for the mentally retarded, then it should still try to limit the damage to federalism. States should be allowed to write their own rules governing this issue without the prospect of a set of federally imposed, retroactively altered procedures lurking in the background. This is consistent with both the general deference accorded to the states' power to define their laws, and with this Court's treatment of the most similar circumstance brought before it. What must be avoided is invoking the Eighth Amendment to force the procedures of the states currently banning the execution of the retarded on those states which have not written any rules on that subject, or, even worse, to craft a judicially created set of procedures and use them to attack the very statutes that created the "consensus" for the underlying rule in the first place.
This has happened before. In Woodson v. North Carolina, 428 U. S. 280 (1976), the Court favorably contrasted Florida's death penalty scheme with the North Carolina one struck down in Woodson. See id., at 286-287 (plurality). Although it served as an exemplar inWoodson, the Florida scheme was not saved from attacks based on subsequent decisions that favored the defense. Lockett v. Ohio, 438 U. S. 586 (1978) extended Woodson's individualization requirement into a broad right for the capital defendant to present virtually any type of mitigating evidence to the sentencer. See id., at 604-605 (plurality). Lockett was then used to invalidate Florida's statutory limits on mitigating evidence. See Hitchcock v. Dugger, 481 U. S. 393, 399 (1987). The Eighth Amendment, as it is currently interpreted, is a slippery slope even for those states that provide the example of appropriate procedures.
Current statutory exemptions for the mentally retarded will provide plenty of fuel for litigation if the defendant's argument is accepted. For example, at least one state requires the defendant to prove mental retardation by clear and convincing evidence. See, e.g., Colo. Rev. Stat. §169-402(2). Any standard greater than a preponderance will be attacked. Similarly, states which limit claims to those defendants who have manifested mental retardation by a certain age, see, e.g., Ark. Code §5-4-618(a)(2); Md. Ann. Code, Art. 27, §412(f)(3), will be attacked for improperly limiting the defense. Jurisdictions also vary considerably in how mental retardation is defined. See, e.g., 18 U. S. C. §3596(c) ("lacks the mental capacity to understand the death penalty and why it was imposed on that person"); Ark. Code §5-4-618 ("[s]ignificantly subaverage intellectual functioning accompanied by significant deficits or impairments in adaptive functioning"); Ky. Rev. Stat. §532.130(2) (IQ below 70). Any attempt to narrow the definition will be attacked. The possibilities for litigation are nearly endless if the Eighth Amendment is allowed to govern.
Having the Eighth Amendment govern the procedures for determining mental retardation claims will stifle state innovation in this field. The "evolving standards of decency," Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality), line of cases can place considerable pressure on states to conform to the current majority rule. Since this Court first looks to the views of other state legislatures in determining whether a practice offends the Trop standard, see McCleskey v. Kemp, 481 U. S. 279, 300 (1987), states that vary from the majority rule risk reversal of their sentences. See supra, at 15.
One way to alleviate this problem is to require at least an overwhelming majority of the states to condemn a particular practice before finding an Eighth Amendment violation. See supra, at 13-14. This safety net will be gone if this Court accepts a categorical exemption for mental retardation, since a majority of the states with capital punishment do not recognize that exemption. See supra, at 16. Removing the super-majority restraint from the "contemporary standards of decency" analysis could quickly constitutionalize the procedures for determining retardation claims. Any state procedures that varied from those adopted by the largest number of states would invite Eighth Amendment attack. The cost of litigation and threat of reversed sentences will give the states considerable incentives to conform to the broadest version of the procedures.
The Eighth Amendment should not bludgeon the states into procedural conformity on any issue. "The essence of federalism is that the states must be free to develop a variety of solutions to problems and not be forced into a common uniform mold." Addington v. Texas, 441 U. S. 418, 431 (1979). Although Addington addressed due process and the civil commitment procedures, the Eighth Amendment is not different. "To [accept the defendant's argument] would . . . place within constitutional ambit micromanagement tasks that properly rest within the State's discretion to administer its criminal justice system." Harris v. Alabama, 513 U. S. 504, 512 (1995). Therefore, the fact that a majority of the states follow a particular procedure does not require the other states to follow suit under the emerging national consensus standard. "The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws. . . . ¶ As the Court several times has made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme." Spaziano v. Florida, 468 U. S. 447, 464 (1984).
This Court showed similar deference when dealing with the execution of the allegedly insane. In Ford v. Wainwright, 477 U. S. 399, 401 (1986), it stated that executing the insane violated the Eighth Amendment. Since no state ever followed that practice, the real issue in Ford was what procedure the Constitution requires when a state is confronted with a claim of insanity by a death row inmate. See id., at 431 (Rehnquist, J., dissenting). While a majority of the Court found fault with Florida's procedures, it also gave considerable deference to the states to implement their own standards for resolving insanity claims.
Thus, while the plurality sought some sort of adversarial hearing, see id., at 417, the states would have considerable freedom in how to implement this directive. "[W]e leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." Id., at 416-417. Justice Powell's concurrence is even more important. He noted that the real issue here was whether the Florida procedures "comport with the requirements of due process." Id., at 424. He differed from the plurality on the extent of the necessary procedures. Justice Powell held that the plurality's "kind of full-scale 'sanity trial' " was unnecessary, and that due process could be satisfied by considerably less elaborate procedures. See id., at 425. However, Justice Powell did not differ substantially from the majority in the deference accorded to the states' freedom to implement their own procedures. "Beyond [a few] basic requirements, the States should have substantial leeway to determine what process best balances the various interests at stake." Id., at 427. No more than "basic fairness" was required. See ibid. (3)
As the narrowest opinion, Justice Powell's opinion provides Ford's holding. See Marks v. United States, 430 U. S. 188, 193 (1977). If this Court accepts the defendant's arguments, then the Powell concurrence should govern. The procedures used to determine claims of mental retardation should only have to satisfy due process. If it chooses, a state may adopt procedures similar to those used in determining competency to stand trial, see Ford, 477 U. S., at 417, n. 4 (plurality), but no particular procedures are required. Since the defendant has already been found guilty and competent to stand trial, the state should be allowed to require the defendant to prove his mental retardation by clear and convincing evidence. Cf. id., at 426, and n. 6 (Powell, J., concurring). States should also have broad latitude to define retardation, including as a minimum the definitions in any of the statutes used to form the "consensus."
Fashioning an exemption from execution for mental retardation will place additional stress on state capital punishment systems. Capital defendants will have considerable incentive to abuse this hard-to-define but potentially very strong defense. Elaborate, constitutionally mandated procedures will threaten to overwhelm capital trials and appeals with more unwanted complexity. Even those states that currently exempt the mentally retarded will see their systems subjected to Eighth Amendment attack. Federalism in this most important aspect of criminal law will take yet another blow. The best way to minimize these and other problems is to give the states the considerable flexibility afforded by due process.
The decision of the Virginia Supreme Court should be affirmed.
January, 2002
Respectfully submitted,
Charles L. Hobson
Attorney for Amicus Curiae
Criminal Justice Legal Foundation
3. Justice O'Connor's concurrence and dissent held that while there was no Eighth Amendment exemption from execution for insanity, Florida law created a "protected liberty interest in avoiding execution while incompetent," which Florida did not adequately protect. Seeid., at 427. While this mode of analysis is not particularly relevant to the present case, the opinion also gave the states "broad latitude" to satisfy due process. See id., at 429.