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Any change from the current treatment of mental retardation will complicate death penalty procedure. Retardation is now treated like any other form of specialized mitigating evidence. The defense presents its claim to the jury through expert witnesses, and the prosecution attempts to rebut through cross-examination and its own experts. See, e.g., J. A. 617-619.
Under the defendant's new regime, courts and legislatures would now have to craft a definition of mental retardation separate from the legal definition of insanity. "Mental age" is unacceptable since IQ scores usually stop rising after 16. See Penry I, 492 U. S., at 339. Since the average mental age is 16 years, eight months, any standard that defines the average criminal defendant as a juvenile is unacceptable. See In re Ramon M., 22 Cal. 3d 419, 429, 584 P. 2d 524, 531 (1978). Simple IQ is no better. As the defendant's expert acknowledged, a diagnosis of retardation cannot be based solely upon IQ score, but also involves the individual's inability to function independently. See J. A. 618; accord American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000, text revision) ("DSM IV-TR"). The inability to function criterion involves "significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, homeliving, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety." DSM IV-TR at 41. These skill assessments may be given much greater weight than raw IQ scores in certain cases. See id., at 42. Thus, individuals with IQ scores above the retarded level may be diagnosed as retarded while those with scores below the retarded level can be classified as not retarded on the basis of their adaptive behavior. See ibid. Any standard must incorporate this subjective determination into a legal standard. Cf. id., at xxxvii (recognition as a diagnostic category does not imply that the condition meets legal criteria).
This new standard will be accompanied by a new finding. At the very least, the sentencer must be given the option of rendering a separate verdict of mentally retarded. Since the issue of retardation will now be divorced from the defendant's overall culpability, a separate hearing will probably be necessary in order to minimize juror confusion. Accompanying the new standards and hearings will be many additional state procedures. While these procedures should not be federalized beyond basic due process, see part II, infra, the additional rules and procedures will further complicate an already complex body of law.
Finally, judicially creating an exemption for mental retardation claims injects arbitrariness into the death penalty. The disruption associated with the change creates its own arbitrariness. As in the aftermath of Furman, Lockett, or Eddings v. Oklahoma, 455 U. S. 104 (1982), the death penalty will not be rendered just on the basis of desert, but will also be influenced by how well state legislatures and courts anticipate the newest pronouncements from this Court. This is itself arbitrary and was a significant cost of the development of the law from Furman. See supra, at 9. Accepting the defendant's claim will reopen some of these wounds.
Determining who is mentally retarded also adds randomness to capital punishment. False positives are a common problem in mental retardation testing. Cultural bias is one likely culprit. See Garcia & Steele, Mentally Retarded Offenders in the Criminal Justice System and Mental Retardation Services in Florida: Philosophical Placement and Treatment Issues, 41 Ark. L. Rev. 809, 815 (1988). This is a particular problem for poor people and ethnic minorities. See ibid. Thus, while "several studies show mentally retarded offenders are disproportionately members of minority/ethnic groups . . . . [m]ost authors acknowledge the meaningfulness of this data must be tempered by consideration of cultural biases in the tests often used to assess intelligence and by the effects of the offender's environment and cultural milieu." Id., at 817-818; see also DSM IV-TR, supra, at 46 ("Care should be taken to ensure that intellectual testing procedures reflect adequate attention to the individual's ethnic cultural or linguistic background.").
There can be no greater affront to the principles of Furman than having the death penalty determination influenced by race or class. Although the bias in intelligence testing favors those traditionally thought to be disadvantaged in capital punishment, two wrongs do not make a right. The race-based arbitrariness that motivated Furman, see Graham v. Collins, 506 U. S. 461, 479 (1993) (Thomas, J., concurring) should not be reintroduced by this Court, even in an allegedly more benign form. While it may be impossible to eliminate all arbitrariness in any human endeavor, this Court should avoid injecting unnecessary caprice, particularly with regard to class or race, into capital sentencing.
Establishing a new judicially created categorical exemption from capital punishment for those who successfully claim that they are mentally retarded is unnecessary. The current system protects those for whom a death sentence would be clearly unjust. The most retarded are unlikely to be competent to stand trial. See Dusky v. United States, 362 U. S. 402 (1960) (per curiam). The insanity defense provides further protection. Ford v. Wainwright, 477 U. S. 399 (1986) also protects the most retarded from the death penalty. See Penry I, 492 U. S., at 333. The rule proposed in the present case is not needed to protect the most severely mentally retarded.
The defendant's proposal is for the marginal cases--the mildly or moderately retarded and, inevitably, the malingering. These are people who are capable of understanding the wrongfulness of their conduct. See Penry I, 492 U. S., at 338 (O'Connor, J., concurring). Thus, as even the defendant's expert admitted, the defendant knew that it was wrong to shoot Nesbitt. See J. A. 618.
Since a categorical retardation exemption would only benefit those in the gray zone, it is unsurprising that the cases raising this claim typically involve defendants whose claim to retardation is hotly disputed. See, e.g., J. A. 618-619; see Supplement to Joint Appendix in McCarver v. North Carolina, No. 00-8727, p. 160sa (cert. dismissed as improvidently granted); Brief for Respondent in Penry v. Johnson, No. 00-6677, pp. 6-7. These defendants already have the benefit of presenting their alleged retardation as mitigating evidence to the sentencer, and having the sentencer instructed to consider it. See Penryv. Johnson, 532 U. S. 782, 150 L. Ed. 2d 9, 25, 121 S. Ct. 1910, 1920-1921 (2001) (Penry II). As with the more severely retarded, the most deserving retarded defendants will avoid the death sentence at the penalty phase when the sentencer relies on the mental retardation to mitigate the sentence. The defendant's claim that sentencing juries may not be able to appreciate the mitigating effect of mental retardation, see Brief for Petitioner 34-35, is why this evidence is presented through expert testimony. Amicus knows of no other evidence that is placed beyond every jury's grasp because it is too complex even with expert testimony.
The defendant's proposal will only benefit those who claim to be retarded but cannot otherwise avoid capital punishment for their crimes. These will be defendants whose intelligence is borderline or whose crimes display exceptional cruelty outweighing that mitigation. In order to exempt these cases, this Court would have to undo the capital punishment system it has developed, and inflict again the disrespect for precedent, the disruption, the complexity, and the arbitrariness that came with Furman.
By treating the retarded as an undifferentiated mass, the categorical exemption would cause additional harm to the capital punishment system and the mentally retarded. The mentally retarded are not homogenous. "Mentally retarded persons are individuals whose abilities and experiences can vary greatly." Penry I, 492 U. S., at 338 (opinion of O'Connor, J.) (emphasis added). "In light of the diverse capacities and life experiences of mentally retarded persons, it cannot be said on the record before us today that all mentally retarded people, by definition can never act with the level of culpability associated with the death penalty." Id., at 338-339. Therefore, "[n]o specific personality and behavioral features are uniquely associated with Mental Retardation." DSM IV-TR, supra, at 44.
Treating defendants as individuals is the foundation of the mitigating line of cases. The problem with a mandatory penalty statute is that "[i]t treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Woodson v. North Carolina, 428 U. S. 280, 304 (1976) (plurality). Thus all repeat murderers must be treated as individuals, and cannot be subject to a mandatory death sentence. See Sumner v. Shuman, 483 U. S. 66, 85 (1987). A blind exemption from death is no better. If repeat murderers are to be treated as individuals, then so should the mentally retarded. The defendant's proposed exemption is an affront to the concept of individualized sentencing.
"So long as sentencers can consider and give effect to mitigating evidence of mental retardation in imposing sentence, an individualized determination whether 'death is the appropriate punishment' can be made in each particular case." Penry I, 492 U. S., at 340 (O'Connor, J.). The intervening years have not altered this situation. See supra, at 16. The current treatment of mental retardation has not been eroded by subsequent developments, nor has it been difficult to use. Indeed, the categorical exemption will make the law more complex and harder to follow. See part I B 3. In short, there is no good reason to depart from precedent. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854-855 (1992). In a system where "the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable," id., at 854, the beneficial precedents of Penry I and Stanford should be retained. Given the great costs and small benefit of abandoning these cases, the treatment of mental retardation in capital cases should remain settled.
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 seexemption 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 in Woodson, 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, seeMcCleskey 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). AlthoughAddington 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
Attorneys for Amicus Curiae
Criminal Justice Legal Foundation
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Footnote 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. See id., 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.