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March 15, 2004

Retarded?- Who decides

This post at Talk Left discusses a current case in Virginia. At issue is whether the State of Virginia can impose the death penalty on Daryl Atkins. Atkins has an IQ of 59. Prosecutors maintain that he is not mentally retarded.

The Times article about the case points out that in most states the decision on whether a defendant is retarded is made by a judge before the trial begins. Others, including Viginia, fold the retardation determination into the trial and rely on the jury for the determination.

It is an interesting distinction. I have been reading the article, Explaining Death Row's Population and Racial Composition, in the Journal of Empirical Legal Studies, March 2004. (If I can find an online link I will add it)

The authors of the article (John Blume, Theodore Eisenberg, Martin T. Wells) point to a correlation between death penalty rates (from 1977 to 1999) and the identity of the ultimate sentencer. In states where the ultimate sentencer is either an individual judge, or a judge with the advice of a jury, the death sentence rate is significantly higher than in states where either a three judge panel or a jury is the ultimate sentencer. Virginia, in their study, has one of the lower death sentencing rates.

That suggests that judges might be operating under greater pressure to apply the death penalty. It also suggests that the death penalty is a more problematic sentence when imposed by a group. As I understand this particular case, the decision of the jury will determine whether his existing sentence of death will be lowered to life imprisonment.

The implication it seems, is that somehow the jury might be manipulated through a description of the crimes, into an unjust decision regarding Atkins' mental retardation. Although the determination of retardation is obviously a different decision than the imposition of the death penalty, this data suggests that a jury, as a group, may be less subject to pressures demanding a death sentence. It will be interesting to see what decision is made by the jury. I am also curious if there is any data that compares the willingness of judges and juries to make the determination of retardation in capital cases. It may be that the ruling by the Supreme Court is too recent for such a study to have been done. But if anyone reading this knows otherwise, please let me know.

Posted by dog1 on March 15, 2004 at 09:23 AM in Legal | Permalink


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» A question of intelligence from Number 2 Pencil
I've posted before about what a bad idea it is to tie IQ scores to death penalties. Not only is it absurd to rely on one test score in making a life-or-death decision, but it's hard to imagine that there... [Read More]

Tracked on Feb 7, 2005 1:42:52 PM

» A question of intelligence from Number 2 Pencil
I've posted before about what a bad idea it is to tie IQ scores to death penalties. Not only is it absurd to rely on one test score in making a life-or-death decision, but it's hard to imagine that there... [Read More]

Tracked on Feb 7, 2005 1:44:20 PM


On February 11, of this year, the Texas Court of Criminal Appeals, the highest criminal appellate court in Texas ruled that: (1) mental retardation would be defined according to American Association on Mental Retardation (AAMR) and Health and Safety Code criteria; (2) defendants who received a capital sentence before the Supreme Court’s ban on executing the retarded are not entitled to jury determination of mental retardation; (3) defendants have the burden of proving mental retardation by a preponderance of the evidence; and (4) defendants must establish significant limitations in adaptive functioning.

The AAMR defines Mental retardation as a disability that originates before age 18 and is characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. The AAMR provides Five Assumptions Essential to the Application of the Definition: (1) Limitations in present functioning must be considered within the context of community environments typical of the individual's age peers and culture; (2) Valid assessment considers cultural and linguistic diversity as well as differences in communication, sensory, motor, and behavioral factors; (3) Within an individual, limitations often coexist with strengths; (4) An important purpose of describing limitations is to develop a profile of needed supports; (5) With appropriate personalized supports over a sustained period, the life functioning of the person with mental retardation generally will improve.

I note these five assumptions because several of them – specifically 2, 3, and 5 seem to run counter to the manner in which the Texas Court of Criminal Appeals finds that significant limitations in adaptive functioning should be determined. The Texas Court of Criminal Appeals looks to the following factors: (1) Did those who knew the person best during the developmental stage--his family, friends, teachers, employers, authorities--think he was mentally retarded at that time, and, if so, act in accordance with that determination?; (2) Has the person formulated plans and carried them through or is his conduct impulsive?; (3) Does his conduct show leadership or does it show that he is led around by others?; (4) Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?; (4) Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?; (5) Can the person hide facts or lie effectively in his own or others' interests?; (6) Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

It appears that the Court of Criminal Appeals decides who is retarded in Texas.

Posted by: Anne | Mar 15, 2004 12:48:25 PM

Thanks for that information. It seems that the ability to formulate plans and carry them out is of particular importance in the Virginia case. It leads me to wonder about the usefulness of the distinctions between defendants who are retarded and those who are not. By which I mean, if you have an IQ below 50, but a plausible argument can be made that the capital offense was, at least somewhat, planned, how useful is that knowledge in determining eligibility for the death penalty?

Posted by: dog1 | Mar 15, 2004 1:05:17 PM