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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

Death penalty law has undergone a long and painful evolution from its modern origins to its current comparatively settled state. Engrafting a per se exemption from capital punishment for mental retardation on to the Eighth Amendment would reopen many old wounds inflicted during the development of death penalty jurisprudence. The current system already protects those for whom a death sentence would be clearly unjust, and, to the extent any further protection is needed, legislation specifying the standards and procedures in advance is a far preferable method for the law to develop in this area. A judicially crafted categorical exemption for capital punishment for those who successfully claim that they are mentally retarded is contrary to the interests of victims and society that the CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On August 16, 1996, the defendant Daryl Atkins and William Jones spent most of the day drinking and smoking marijuana at the house Atkins shared with this father. See Atkins v. Commonwealth, 510 S. E. 2d 445, 449 (Va. 1999) (Atkins I). Later that evening, after Atkins borrowed a gun from a friend, he and Jones went to the convenience store to buy some more beer. Lacking money, Atkins started panhandling. See ibid. At around 11:30 p.m., Eric Nesbitt went to the store. When Nesbitt prepared to leave the parking lot in his truck, Atkins hijacked the truck at gunpoint. Jones drove, Atkins was a passenger, and Nesbitt was kept hostage. See ibid. They stole $60 from Nesbitt's wallet, and after discovering Nesbitt's bank card, they proceeded to the branch of a local bank where Atkins forced Nesbitt to withdraw $200 from the drive-through ATM. Ibid.

Jones then drove the truck to a local school where he and the defendant discussed what to do with Nesbitt. Ibid. Jones urged that they just tie Nesbitt up and leave him. Instead, at Atkins' suggestion they drove to a secluded area that he knew. Atkins ordered Nesbitt out of the truck and shot Nesbitt to death. Id., at 449-450. The autopsy showed that Nesbitt had eight different bullet wounds. Id., at 450.

The two were subsequently arrested. Jones testified against Atkins, and Atkins was convicted of capital murder and sentenced to death.Id., at 451, 453. The Virginia Supreme Court affirmed the conviction, see id., at 457, but reversed the sentence because of an improper sentencing verdict form. See id., at 456-457, n. 7. At retrial, Dr. Evan Nelson, a forensic psychologist, testified that the defendant's full scale IQ of 59 meant that he was mildly mentally retarded. Atkins v. Commonwealth, 534 S. E. 2d 312, 319 (2000) (Atkins II). This diagnosis was also based upon the defendant's inability to function independently as compared to the average person. See ibid. Dr. Nelson also "admitted that Atkins' capacity to appreciate the criminal nature of his conduct was impaired, but not destroyed; that Atkins understood that it was wrong to shoot Nesbitt; and that Atkins meets the general criteria for the diagnosis of an antisocial personality disorder." Ibid.

The jury also heard the testimony of the state's witness, Dr. Stanton Samenow, a forensic clinical psychologist. Ibid. He " 'sharply disagreed' " with Dr. Nelson's diagnosis that the defendant was mildly retarded. He instead concluded that Atkins had at least average intelligence. This conclusion was based upon "Atkins' vocabulary, knowledge of current events, and other factors from the Wechsler Memory Scale, Wechsler Adult Intelligence Scale, and Thematic Appreciation Test." Ibid. As one example, Atkins knew that John F. Kennedy was president in 1961. He also knew who was the current governor of Virginia, as well as the last two presidents. Ibid.

The defendant was again sentenced to death. See id., at 314. The Virginia Supreme Court affirmed. See ibid. The opinion analyzed Atkins' alleged retardation under its proportionality review, where it held that the death sentence was not rendered disproportionate due to the defendant's intelligence. See id., at 321. This Court granted certiorari on September 25, 2001.

SUMMARY OF ARGUMENT

At this late stage, this Court should not upset its capital punishment jurisprudence. From its fractured origins in Furman v. Georgia, Eighth Amendment death penalty law has gone through a long and painful development. It has now matured into a comparatively stable body of law. Accepting the defendant's arguments would reopen many of the wounds inflicted since Furman.

One of the foremost costs of Furman's legacy is complexity. Death penalty law's extraordinary complexity makes it difficult for courts and legislatures to anticipate changes in the law, and hinders the recruitment of attorneys to represent capital defendants. Developing such a complex body of law necessarily led to many reversals as states failed to anticipate changes in doctrine. Burdensome retrials, frustrated deserts, and additional murders are all a legacy of the law since Furman. The frequent reversal of sentences due to a failure to foresee unforeseeable changes in the law also injected an arbitrariness into the system that Furman was intended to minimize.

Federalism has paid a heavy price for establishing Furman's legacy. Massive federal regulation of the apex of state criminal law wounds federalism. Federalism is further harmed as states understandably overreact to the Eighth Amendment cases, such as declining to regulate the admissibility of mitigating evidence.

Fortunately, most of these costs have now been paid, as death penalty law is now stable. Legislatures and courts now know how to establish a capital punishment system that will withstand constitutional scrutiny. Even the tension between the narrowing and the individualized sentencing lines may be abating.

Creating a categorical exemption for mental retardation carries costs similar to those associated with the aftermath of Furman. Foremost is the damage to precedent. Substantial portions of Penry v. Lynaugh and Stanford v. Kentucky would have to be overruled in order to fashion the exemption. There is no new national consensus against applying capital punishment to the mentally retarded. Under current law a consensus can only be found when an overwhelming majority of legislatures condemn a particular punishment or procedure. Since a majority of states with capital punishment do not exempt the mentally retarded, there can be no new consensus without overrulingPenry I and Stanford.

Accepting the defendant's argument would also cause considerable disruption to death penalty systems. Under Penry I, any exemption for retardation would be fully retroactive on collateral review. Courts will therefore be inundated with retardation claims.

Finally, the categorical exemption would make death penalty law more complex and arbitrary. Instead of being treated like any other mitigating evidence, mental retardation claims will now require much more procedural complexity: a new standard of proof, an additional hearing, and new procedures to govern the hearing.

Arbitrariness will increase in two ways. First, the inevitable reversals in states that failed to anticipate this change repeats the arbitrariness that accompanied the developments since Furman. Additionally, setting the standard for determining something as imprecise as mental retardation necessarily involves drawing an arbitrary line between those who are and are not exempt on the basis of their intelligence.

A judicially created exemption from capital punishment gives little additional protection to those for whom the death penalty would be clearly unjust. The insanity defense, competency to stand trial, and the prohibition against executing the insane all protect the most retarded defendants from capital punishment. Further protection is provided through the defendant's right to present evidence of mental retardation as mitigating evidence and to have the jury instructed to consider it in mitigation. Only those defendants who could not otherwise avoid a death sentence would benefit from overturning Penry I and Stanford. Treating all mentally retarded defendants as one undifferentiated mass also contradicts the principle of individualized sentencing.

In the event that the defendant's claim is accepted, then the rules and procedures for determining mental retardation should be governed by due process rather than the Eighth Amendment. If the Eighth Amendment governs, then any rule favorable to the prosecution that varies from the norm will be attacked under the "evolving standards of decency" test. Since states can freely depart from the majority rule to favor the defense, Eighth Amendment scrutiny will lead state rules to a lowest common denominator in favor of the defendant. What must be avoided is invoking the Eighth Amendment to force a procedure on the states, which have not written any rules on the 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 threat is all too real. State statutes used as examples of the evolving standards of decency in one case were successfully attacked in later cases as violating some newer standard. Since there is considerable variation among current state procedures governing retardation exemptions, there will be many opportunities for Eighth Amendment litigation.

Due process allows the state experimentation that is the hallmark of our federalism. It is also how this Court treats procedures governing the prohibition against executing the insane. The best way to preserve federalism and keep courts from being inundated with even more Eighth Amendment claims is to adopt the deferential due process standard.

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Footnote 1.This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.