NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.6  Prohibition of Execution of the Mentally Retarded
               1.6.1  Retroactivity of Atkins

In Penry v. Lynaugh (Penry I), 492 U.S. 302 (1989), the Supreme Court held that the Eighth Amendment does not categorically prohibit imposition of the death penalty upon the mentally retarded. The Court found no societal consensus against the execution of the mentally retarded and held that where a mentally deficient defendant is found competent to stand trial, and thus sane–meaning able to appreciate the wrongfulness of his or her actions–the Constitution does not prohibit the imposition of a death sentence on that defendant. Mental retardation must be considered as a mitigating factor in determining a death sentence, however, to ensure the individual consideration of each offender and offense.

Subsequently in Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), the Supreme Court held that the jury instructions given at the defendant’s resentencing did not comply with the mandate in Penry I that the jury be able to “consider and give effect to [a defendant’s mitigating] evidence in imposing sentence” and that the jury instructions were internally inconsistent. The Court held that the supplemental instruction, which stated that the jury could say “no” to one of the special issues, if the jury believed that a life sentence was appropriate in light of mitigating circumstances, but also stated that the jury should answer “no” to the special issue only if it found reasonable doubt to give a “yes” answer, provided an “inadequate vehicle for the jury to make a reasonable moral response to Penry’s mitigating evidence. Id at 799-800.

On June 20, 2002, the Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that executions of mentally retarded individuals convicted of capital crimes are cruel and unusual punishment prohibited by the Eighth Amendment. Stating that it was fair to say that a national consensus has developed against executions of mentally retarded persons, the Court noted that in the intervening 13 years since Penry I, 18 state legislatures have passed laws limiting the death eligibility of certain defendants based on mental retardation alone. The Court stated that it was not so much the number of these states that was significant, but the consistency of the direction of change. The Court reasoned that given that anticrime legislation is far more popular than legislation protecting violent criminals, the large number of states prohibiting the execution of mentally retarded persons (and the complete absence of legislation reinstating such executions) provided “powerful evidence that today society views mentally retarded offenders as categorically less culpable than the average criminal.” As to what constitutes mental retardation, the Court pointed out that not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. The Court held that it would leave to the states the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.  

Federal law prohibits the imposition of the death penalty for a federal crime, see infra § 5.1, on those who are mentally retarded or disabled to the point of not understanding the death penalty to be imposed. Federal law also prohibits federal execution of pregnant women.

Arizona, California, Idaho, Nevada, and Washington have enacted legislation that expressly prohibits execution of the mentally retarded.

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment).  

Penry v. Johnson (Penry II), 532 U.S. 782 (2001) (holding that jury instructions given at resentencing failed to comply with mandate of Penry I that jury was to consider and give effect to [a defendant's mitigating] evidence in imposing sentence).

Penry v. Lynaugh (Penry I), 492 U.S. 302 (1989) (holding Eighth Amendment does not categorically prohibit execution of mentally retarded capital offenders; where mentally retarded defendant found competent to stand trial, and thus sane, execution not prohibited because no national consensus against execution of mentally retarded; where mitigating evidence of mental retardation is presented, jury must be given opportunity to consider it in determining sentence).

Burger v. Kemp, 483 U.S. 776 (1987) (holding not ineffective assistance of counsel to fail to fully investigate defendant’s background for mitigating circumstances where seventeen-year-old defendant has IQ of eighty-three and functioning ability of twelveyear-old).

United Mexican States v. Woods, 126 F.3d 1220 (9th Cir.1997) (stating in footnote two that claim that petitioner’s execution would violate customary international law since he was retarded was not binding on United States and did not require a qualitatively different analysis than the incompetence to be executed claim already undertaken), cert. denied, 523 U.S. 1075 (1998).

Odle v. Vasquez, 754 F. Supp. 749 (N.D. Cal. 1990) (finding imposition of death penalty on defendant with brain lobectomy not disproportionate under Eighth Amendment because capacity in light of mental retardation is question of fact, not law, and jury given sufficient information to conclude competency).

Bell v. Cockrell, 310 F.3d 330 (5th Cir. 2002) (following remand from the Supreme Court to reconsider in light of Atkins v. Virginia, holding that as to petitioner who consistently offered clinical evidence of mental retardation since his first trial in the 1970s, habeas petition should be dismissed without prejudice so that State of Texas could reconsider case in light of Atkins; stating that inferior federal courts have no useful role to play until and unless following Atkins, death sentence is reaffirmed or again imposed by state courts; noting that Supreme Court neither conclusively defined mental retardation nor provided guidance on how its ruling should be applied to prisoners already convicted of capital murder).

Bird v. Collins, 924 F.2d 67 (5th Cir.) (finding, on the facts, that district court should not have raised, sua sponte, unexhausted Penry claim not raised in habeas petition), cert. denied, 501 U.S. 1213 (1991).

Samuel R. Gross, Update: American Public Opinion on the Death Penalty--It’s Getting Personal, 83 Cornell L.Rev.1448, 1468 (1998) (public opinion on execution of mentally retarded individuals).

Rebecca Dick-Hurwitz, Comment, Penry v. Lynaugh: The Supreme Court Deals a Fatal Blow to Mentally Retarded Capital Defendants, 51 U. Pitt. L. Rev. 699 (1990) (summarizing Penry, death penalty in general, and rationale behind Penry, arguing it reflects Supreme Court’s misunderstanding of mental retardation, and thus Penry wrongly decided).

Denis W. Keyes and William J. Edwards, Mental Retardation and the Death Penalty: Current Status of Exemption Legislation, 21 Mental & Physical Disability L. Rep. 687 (1997) (summarizing the current status of legislation regarding capital punishment and mental retardation and juxtaposing with public opinion).

Juliet L. Ream, Note, Capital Punishment for Mentally Retarded Offenders: Is It Morally and Constitutionally Impermissible?, 19 Sw. U. L. Rev. 89 (1990) (reviewing Eighth Amendment death penalty jurisprudence, mental retardation, mental illness, and youth, and criticizing Penry opinion, arguing justifications for exempting insane and young should apply to mentally retarded offenders).

David L. Rumley, A License to Kill: The Categorical Exemption of the Mentally Retarded from the Death Penalty, 24 St. Mary’s L.J. 1299 (1993) (summarizing mental deficiency in general, characteristics of mentally retarded, and recently enacted state statutes setting IQ minimums for execution, and supporting Supreme Court’s refusal to categorically exempt such offenders from capital punishment).

Joshua N. Sondheimer, Note, A Continuing Source of Aggravation: The Improper Consideration of Mitigating Factors in Death Penalty Sentencing, 41 Hastings L.J. 409 (1990) (reviewing constitutional requirements of capital punishment statutes, and application of certain factors, such as mental deficiency, as “double-edged sword” of both aggravating and mitigating weight, and arguing that modern death penalty schemes allowing such misapplication of mitigation is unconstitutionally arbitrary).

William K. Wetzonis, Note, Capital Punishment for Mentally Retarded Defendants: A Boundary for the Eighth Amendment is Drawn, 34 How. L.J. 651 (1991) (summarizing Penry and problems of capital punishment for mentally retarded offenders, and arguing Court should extend Eighth Amendment protection to prevent mentally retarded execution).

The two exceptions to the rule in Teague v. Lane, 489 U.S. 288 (1989) are: (1) rules placing certain kinds of primary, private individual conduct beyond the power of the criminal law to proscribe, and (2) procedures implicit in the concept of ordered liberty without which the likelihood of an accurate conviction is seriously diminished. In Penry v. Lynaugh, 492 U.S. 302 (1989), the Court noted that the first exception should also apply to rules “prohibiting a certain category of punishment for a class of defendants because of their status or offense.” In that case, the Court indicated that if it had announced a new rule that mentally retarded defendants could not be sentenced to death, then such a rule would satisfy the first exception. In Bell v. Cockrell, 310 F.3d 330 (5th Cir. 2002), citing Penry, the Fifth Circuit held that Atkins constitutes an exception to the nonretroactivity rule of Teague.

Bell v. Cockrell, 310 F.3d 330 (5th Cir. 2002) (holding that Atkins v. Virginia constitutes exception to nonretroactivity rule of Teague v. Lane, and therefore retroactivity applied to capital habeas case in which petitioner had consistently offered clinical evidence of his mental retardation since first trial in 1970s).