In Atkins v. Virginia, the Supreme Court left it up to the states to establish their own standards and procedures for determining mental retardation in death penalty proceedings. In Georgia, the burden of proof is placed upon the DEFENDANT to establish mental retardation BEYOND A REASONABLE DOUBT--the highest burden in any state.

Last week, in Stripling v. Head, No. 03-1392, the United States Supreme Court let stand a 2003 Georgia Supreme Court ruling in which the state justices voted 4-3 to uphold a state law that requires capital defendants making retardation claims to prove that retardation "beyond a reasonable doubt"

This past weekend, the Houston Chronicle had a front page article complaining that the Texas Legislature has yet to pass a statute addressing how to handle these mental retardation claims. Since the Georgia method seems to pass constitutional muster, reckon we ought to just follow suit?

Inasmuch as Atkins essentially creates a defense, it stands to reason that the defendant should bear the burden of proving that defense. At the same time, I think I am safe in saying that those who make the decision to seek the death penalty do not do so on a whim. That decision shouldn't be subject to cancellation as part of a now all-too-routine strategy.

It seems to me that severe mental retardation is an aggravating circumstance rather than a mitigating one.

In my little fantasy world, the State would allege that the Defendant is biologically incapable of any positive contribution to society and, if this aggravation were proved beyond a reasonable doubt, the death sentence would be imposed.

Opponents of the death penalty would spend their time looking for a condemned man's redeeming qualities rather than trying to prove that he is hopelessly stupid.

In my opinion, the execution of the criminally insane is not punishment, it is extermination! i.e.: pest control.

A man that is incapable of learning to distinguish right from wrong is more dangerous and less "human" than a pet dog and, in our society, a dog that kills someone is exterminated.

- Alex

PS: (Full disclosure)
1. I am not a lawyer.
2. If I were then I'd be more likely to be in criminal defense than prosecution.
3. My politics are generally liberal.
4. John Paul Penry's victim was related to me by marriage.

m'kaaaay. . .

*blush*

I'm sorry for that rant. It was inappropriate.

What I meant to say is that I'm glad that Lee Hon is staying on top of this issue because he may be prosecuting Penry again some day.

-Alex

Alex -- Yeah, I believe a certain little man in Europe in the 30's and 40's along with his followers believed in that same idea of killing off people who don't "contribute" to society. They called it eugenics. I can understand, however, how anger over your relative's murder can make you say things that probably wouldn't be viewed as very politically correct. We prosecutors sometimes get the reputation for having rather harsh, facist-like thoughts. I'm at least glad you disclosed that you aren't a prosecutor.

I personally have no problem with not executing the truly mentally retarded. I do have a problem with just plain old stupid defendants faking retarded to avoid the consequences of their crimes.

...and the real irony here: Penry's neither retarded (as found by a jury, judge, and numerous mental health experts), insane, or incompetent--just a cold blooded killer and sexual predator who's managed to get a ton of mileage out of a bogus claim and a little good timing with the Supreme Court. His name should no longer be associated with the "Atkins issue."

I have a problem with death penalty abolitionists using the mentally retarded as an excuse to rail against the death penalty. I've read several articles recently about how Texas doesn't have a statute for defining those who are excluded by mental retardation.

Let's keep the history clear. Texas prosecutors produced an excellent bill (filed by Senator Ogden and Rep. Terry Keel) that described mental retardation and how it should be litigated (at the punishment stage of a capital murder trial).

Abolitionists, on the other hand, saw the issue as an opportunity to stop the system. First, they demanded a moritorium (code for abolition of the death penalty). Second, they stopped the bill in the Senate after it had passed the House. The votes existed for the bill to pass in the Senate, but enough Senators agreed not to allow it brought up for debate (remember that 2/3rd's rule?).

The minority members wanted a bill that would have introduced great delay and expense into the capital litigation by creating a separate jury to hear mental retardation claims before trial and then allow endless appeals of that decision.

As it turns out, Texas was rather moderate in its approach. Some states have placed a far higher burden (beyond a reasonable doubt, rather than the Texas standard of preponderance of the evidence). But, now abolitionists can get Texas trial court judges to have different plans and then point the finger at those differences to justify more delay.

We should refile the bill from last session and again attempt to push it through the House and Senate. But this time there should be more advance publicity that Texas prosecutors have a solution and abolitionists have a roadblock.

Well stated, John. If anything, the bill filed by Rep. Keel gave the defense bar way more than they are entitled to. Based upon the recent decisions of the Court of Criminal Appeals in Ex Parte Briseno and Hall v. State, as well as the inaction of the Supreme Court in Stripling, the following standards can be adduced:

1) There is no right to trial by jury on the mental retardatation issue;
2) The facts of the crime are relevant to a determination of mental retardation;
3) IQ, in and of itself, is not determinative of mental retardation;
4) Adaptive functioning, including the ability to plan crimes, commit crimes, and avoid apprehension, is highly relevant;
5) Testimony of lay witnesses on the M.R. issue is relevant;
6) The burden of proof is on the defendant to establish mental retardation by at least a preponderence of the evidence;
7) The definition of mental retardation in Texas will be the one used in the Health and Safety Code.

I remember in the committee hearings last time all of the anti-death penalty folks claiming that unless it's a pretrial hearing where the jury is prevented from hearing about the facts of the crime and the defendant's criminal history then it's not going to pass constitutional muster. That simply did not make common sense at the time and still doesn't.

As far as I'm concerned, the Court of Criminal Appeals seems to have set up the very workable parameters of how the issue might be litigated at present. I'm not sure we even need a bill. One thing is for sure, however, we should not compromise on this issue and settle for anything less than the Keel bill provided for last session; i.e., punishment phase resolution of the issue by a jury, burden of proof on the defense, and the jury able to hear and consider ALL relevant evidence.

The reason to continue pursuing a bill is because abolitionists will look for liberal trial judges who will agree to the pretrial hearing on mental retardation. If the State loses, there is no opportunity to appeal. If the State wins, no doubt the judge will still permit the defendant to relitigate that same issue in front of a jury. So much for efficiency.

Has anyone heard whether Atkins fate has been decided by the Virginia State court? I found a copy of the State supreme court remand for a jury determination of mental retardation, but haven't yet found news of a trial court verdict.

Gordon, I am going to make the assumption that if the next step in Atkins had occurred it would be reported on this web page: Atkins. But another article reported the proceeding to determine his fate was set for March 29, 2004, so maybe there is news out there. For some insight on the Wechsler life/death test see Legal Retardation.

[This message was edited by Martin Peterson on 06-09-04 at .]