Atkins and Mental Capacity
If you’re in criminal defense, you know this case, but humor me as I do a brief review of how executing a mentally retarded person officially became cruel and unusual punishment. The case looks at those who are competent to stand trial, but lack the mental capacity to fully understand and abstract the consequences of their actions.
It is a well settled legal concept that where sanctions are “excessive,” they are prohibited by the Eight Amendment. U.S. Const. Amend VIII; see Atkins v. Virginia, 122 S. Ct. 2242, 2246 (S. Ct. 2002); Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544 (1910). Excessive is determined by the principal of the sanction being proportionate to the crime. See Atkins, 122 S. Ct. at 2246; Weems, 217 U.S. at 367. Prior to Atkins, the concept of proportionality of punishment was already being applied in Eight Amendment issues. See Harmelin v. Michigan, 501 U.S. 957, 997-998 (finding that ninety days imprisonment was not proportional to the “crime” of being addicted to narcotics). Additionally, the concept of what is proportionate, is an evolving concept; it changes as American’s ideas of morality change. Trop v. Dulles, 365 U.S. 86, 100-101, 78 S. Ct. 590 (1958). One standard for morality is passage of legislation accepting or denying certain moral concepts. Enmund v. Florida, 458 U.S. 782, 793, 102 S. Ct. 368 (1982).
The Court also looked to actors of proportionality, the first of which is whether the culpability of a person necessitated the punishment (in this case, the death penalty). Atkins, 122 S. Ct. 2251. Another factor is whether the punishment fits with the societal concept of deterrence: does the punishment adequately, but not excessively, deter repetition of that specific conduct. Id. at 2252. Based on these two factors, as well as the fact that mentally retarded persons are often unable to provide assistance to their attorneys in creating a defense, creates a higher risk that a retarded person will be wrongfully executed. Id. at 2252.
Therefore, where a person is mentally retarded, that person cannot be executed, it would violate the Eight Amendment. SCOTUS created this rule in Atkins, which upheld many states’ determinations at the time. But the Court made no mention of how a court could determine whether a person was mentally retarded, leaving that puzzle up to the states.
Recently, the Pennsylvania Supreme Court decided that juries would make the decision on mental abilities, after the guilt phase of the trial. I will be examining that case, Commonwealth v. Sanchez, as well as comparing and contrasting the method to Wyoming case law in the case which was one of the first to define the issue there, State v. Brown.
Pennsylvania:
In 2010, each court in Pennsylvania was left to determine whether a judge or a jury should determine mental retardation and competence. Generally a judge would hold a pretrial hearing on mental capacity and retardation. See Com. v. Vandivner, 962 A.2d 1170 (2009); Com. v. Miller, 888 A.2d 264 (2005). However, so long as the person was adjudicated competent to stand trial, the court still gave the jury the responsibility of looking to mental retardation as a mitigating factor in the penalty phase of the trial. Vandivner, 962 A.2d at 1177; see Com. v. Terry, 521 A.2d 398, 412 (1987). Thus, although the judge could predetermine mental retardation, the jury could still overrule, if you will, the judge’s determination of mental development and capacity.
In Com. v. Sanchez, --- A. 3d ---; 2011 WL 6412518, Appellant challenged the failure of the court to hold a pretrial hearing on his Atkins assertion, and instead the court gave the issue to the jury after adjudication of guilt. Sanchez, 2011 WL at page 2. The Pennsylvania Supreme Court went through a constitutional analysis, and determined that there was no preference for a bench decision; indeed, it appeared that both the federal and state constitutions preferred a jury trial. Id. The Court determined that it was perfectly acceptable to allow juries to make decisions on mental capacity, so long as the defendant is competent. Id.
This decision was controversial. In past years the legislature in Pennsylvania has drafted a bill which would require that judges make the retardation and capacity decisions, but the bills have always failed in the House. Some advocates express concern that juries may be biased and become confused by the issue of retardation when presented with it after already determining the defendant’s guilt.
I can see and sympathize with their concerns, at times, a jury member may feel conflicted about seeing a person they declared guilty, not get the death penalty because of a low I.Q. (intelligence quotient). However, I also think that if we trust juries to make decisions as to expert information, witness credibility, and affirmative defenses such as insanity, then we already have entrusted them with the ability to determine mental capability or lack thereof. Putting the idea that way, if we feel that juries cannot adjudicate mental retardation, then why are they capable of adjudicating other difficult factual problems?
Let’s look a little bit at Wyoming case law, which has had juries determining all issues of mental capacity except for competence to stand trial, for over sixty years.
Wyoming:
One of the early cases to address a person’s I.Q. in relation to their level of culpability in a death penalty case is State v. Brown, 151 P.2d 950 (1944). In this case the Supreme Court of Wyoming determined that the jury was the appropriate fact finder when the issue was one of whether to give a person a life sentence, or a death sentence. The court stated:
“While, as stated, the discretion of the jury to impose the penalty of death or life imprisonment is untrammeled, they cannot, in the very nature of things, bring in an intelligent verdict, unless they know the circumstances under which the crime was committed, and all the surrounding facts, including … his intelligence… and other relevant facts which might properly aid the jury in exercising their discretion.”Brown, 151 P.2d at 955-56. The Court ended by upholding the jury’s determination of the death penalty, despite the defendant’s “low intelligence."
This case was long prior to Atkins, and the Wyoming Supreme Court did not have to consider whether the intelligence of the defendant was so low that he could be considered retarded, but the point of discussing this case is to show how using the jury to determine mental capacity is standard and obvious practice in some States.
Wyoming has not recently addressed mental retardation specifically, although it has continued to utilize the jury for other mental capacity defenses including insanity and emotional distress. See Smith v. State, 190 P.3d 522 (2008); Eaton v. State, 192 P.3d 36. I personally worked on an appeal in the Smith case, and I do believe that the juror who was challenged in that case was not appropriate to sit on an insanity defense case. Mr. Smith represents a group of persons who have mental deficiencies and who may not be getting completely fair results. In the end, is twelve lay-persons deliberating any less safe than one judge making a decision from the bench?
Conclusion:
In conclusion, juries are commonly left to determine complex issues which may, in fact, be out of their competency range, but if we give them the fact finding power, it is hypocritical to remove it based on an issue being “too complex” or something the jurors could be prejudiced against. If we begin down that road, we may as well remove from jurors the power to determine expert witness evidentiary issues, credibility of witnesses when there is something that could prejudice the jury, and even the determination of facts which are not within their basis of knowledge.
Some of our judges are less educated, some are not sympathetic to mental conditions, and some are often accused of being biased, and so to give them the fact finding power over the jury, also seems counter-intuitive. I’m not saying the jury system is perfect, and as an appellate attorney I do distrust jury verdicts based on hindsight issues, but I will also say that sometimes the judge’s determination is no better.
In reality, getting a certain verdict generally depends on two things: the facts and the attorney’s skill. If the facts are too far against you, having the best attorney skills for weeding out bad jury members and for presenting information perfectly will not help you in the end. And if the attorney is not good at recognize issues with the empanelled jury, or if the attorney fails to present the facts in a logical and comprehensible manner, even an innocent person could end up in jail. So focus on your presentation and your skills, because that’s what you control.
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