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Posted Oct. 4, 2002
Virginia Senator, Lawyer Debate Atkins Implementation

The Supreme Court's decision in Atkins vs. Virginia left little doubt about whether or not Virginia can execute the mentally retarded—they can't—but in leaving details vague about how to make changes in the court system to accommodate the ruling and how to define mental retardation, Virginia lawmakers face a daunting task in deciding how to comply with the decision. Two figures familiar with the issues, Commonwealth's Attorney of Lynchburg William Petty and Virginia State Sen. John Edwards (D-Roanoke), debated the decision and how to implement it during an event sponsored by the Federalist Society at the Law School Oct. 2.

In Atkins, the Court determined in a 6-3 decision that executing the mentally retarded was "cruel and unusual" punishment, prohibited by the Eighth Amendment. The majority opinion pointed to the increasing numbers of states that have decided to outlaw the practice and implied a need for consistency as grounds for overturning the Virginia Supreme Court ruling.

"The mentally retarded are different—they are not like normal people. They are like children, permanently so," Edwards said in defense of the decision, noting that the Bill of Rights protects the few from a majority that could be wrong. "When it comes to the retarded and the death penalty, concepts of deterrence don't apply."

Edwards recently proposed a bill that passed in the Virginia Senate and is now being considered by the House that would establish judges as the decision-makers in whether a defendant is mentally retarded. His bill adopts the American Psychological Association definition pf mental retardation: the defendant's IQ must be below 70 (similar to a child between 9-12), the defendant must have severe limitations with adaptive functioning (problems with communicating and impulse control, which can raise questions about the reliability of confessions), and these symptoms must have been shown in the defendant's medical records before the age of 18.

"You can see how difficult it would be to fake mental retardation" under such a system, Edwards said.

Under Edwards's bill, defense attorneys would have multiple chances to make their case. First a pre-trial hearing with a judge would let the judge decide if the defendant was mentally retarded. If the judge rules for the defendant, capital punishment would be off the table. If he doesn't, the defense can bring up any issues they want during the trial, as they can now. After the trial, the defendant would have 120 days to file against a death penalty ruling if he still wants to claim mental retardation.

Petty said Atkins was not so much about the mentally retarded, but a "continuance of the debate we're having across the country about the death penalty." He said at the time the case was filed less than half of the states had laws prohibiting execution of the mentally retarded, not the consensus the Court said existed. He agreed with Justice Antonin Scalia's opinion that there's something to be said for abolishing the death penalty, but there's nothing to be said for incremental prohibitions of it.

"The Supreme Court of Virginia has no clue as to what they're supposed to do with this," Petty said. "We're in a real quandary now." He said if he had a defendant facing the death penalty he would immediately file a motion that his client was mentally retarded, because the case would likely sit until lawmakers decide what to do.

Defense attorneys currently have the opportunity to file for incompetency and can bring up issues of sanity or retardation during the trial. Petty said if there's a chance of wrongfully convicting someone because of a false confession from a mentally retarded defendant, putting them away for life is almost as bad as imposing the death penalty.

"We don't put 10-year-olds in prison for life, why the mentally retarded?" Petty asked. "I don't think that standard should be one's IQ."

He held up a manual on mental health that defense attorneys often use, DSM-IV - Diagnostic and Statistical Manual of Mental Disorders, noting that mental health professionals must vote on what is included in the book, revealing that concrete definitions are difficult to come by. There are several definitions of mental retardation in the manual—mild, moderate, severe—"how far do we need to go?" Petty asked of trying to define who can be executed and who cannot. He said most mentally retarded people are capable of understanding that murder is wrong.

Petty also disputed Edwards' choice to let the judge decide whether a defendant is mentally retarded by relying on a potential "battle of experts" during a hearing. In Virginia, issues of fact in a case are left to a jury, Petty said, and mental retardation is an issue of fact. Of the states who banned capital punishment for mentally retarded criminals, 13 leave the decision to a judge, 4 to a jury, and one to both. Petty said a jury is better suited because they hear all the evidence during a trial, not just expert testimony; in a similar vein, juries decide whether a defendant is insane in applicable cases. In June the Supreme Court decided in Ring vs. Arizona that only juries could impose the death penalty, which Petty said further supported his assertion that juries should determine mental retardation.

"We look to evolving standards of decency," Edwards said in response to Petty. Edwards recounted a story he had heard where an inmate ate his last meal and on his way to be executed asked the guard to put his meal in the refrigerator so he could eat it later. Edwards said it is "indefensible to conclude that the mentally retarded are not somewhat less culpable."

Death penalty cases in which the defendant may be mentally retarded can tax an already strained capital punishment system, and in particular the defense attorney, Edwards continued.

"The defense attorney has a real dilemma," he said. "Shall I put him on the stand and have the jury conclude that the defendant is dangerous and should be executed because he'll do it again?...What jury is going to make these fine distinctions?"

"There's going to be a debate about it and clearly the General Assembly will have to come up with answers to fill in the blanks," Petty said. "In reality, will it mean a lot? No." Petty said the number of death penalty cases in Virginia each year is small, and the number in which defendants might argue they are retarded is even smaller. "Until we decide the [death penalty] issue, these are the battles we're going to fight."

The pertinent question was whether and how we want to draw a bright line about who gets executed and who doesn't, Petty said. Currently who does and who doesn't get the death penalty is not applied evenly even across state lines, undermining the Court's consensus argument. Petty, who said he has never sent a defendant to death row in 20 capital punishment cases, once saw a defendant who committed murder for the second time not get the death penalty. "It is truly a crapshoot," he said.

Edwards, who said he supports the death penalty in general, agreed that the death penalty's inconsistent application throughout the country is problematic.

"I do think that unless we can get a handle on the death penalty and its arbitrariness, and its freakishness [in how it's applied], it will fall," he said.
• Reported by M. Wood

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