State-by-State Strategy Propelled Atkins to Success, Ellis Says

March 3, 2005

EllisWhen the Supreme Court rejected the possibility in 1989 of outlawing the death penalty for the mentally retarded because states showed no consensus over whether it was "cruel and unusual punishment" under the Eighth Amendment, Jim Ellis and other legal strategists went back to the drawing board. If it was states Justice O'Connor wanted, states she would get. When Ellis argued Atkins v. Virginia in 2002, 18 states had outlawed capital punishment for the mentally retarded due to the diligence of a prolonged political campaign. The justices' approved Ellis's plea 6-3.

"It was the first time I ever argued any case in any court," said Ellis, a University of New Mexico law professor.

Ellis first worked with law students on the Supreme Court case City of Cleburne v. Cleburne Living Center, Inc., on which the Court ruled in 1984 that the city could not reject an application for a zoning variance to build a group home in Cleburne, Tex., without "rational basis."

Disability organizations at the time did not have a substantial track record before the Supreme Court, Ellis said. They had been successful at a campaign to get children with disabilities access to public schools. The spike age for admission to a group home was once 6 because schools would reject such students. "Parents with kids with disabilities decided there was something wrong with that," he said. Parents formed the Association for Citizens with Retarded Children, now known as ARC.

Ellis has worked on 15 Supreme Court cases with law students representing disability organizations, primarily to write amicus briefs. "Part of the sustained effort was to help the Court understand mental disabilities," he said.

Ellis became aware of the issue of capital punishment for the mentally retarded while teaching a summer course in Colorado. He read a newspaper article about a retarded man in Georgia who was granted a stay of execution after Mother Teresa, the Pope and the Allman Brothers protested his fate, which "persuaded [Georgia officials] that maybe this is kind of awkward." The state sent a psychologist to evaluate the man. He agreed that the man was mentally retarded but said Georgia could kill him because his IQ was above 50. "It was a sobering moment … for the people of Georgia," he said. During the next legislative term representatives banned the death penalty for the mentally retarded. Before that case, no one had a sense that the mentally retarded were on death row, he said. "That was not on the radar screen" for advocates.

Ellis later was conducting research in Texas and found a report on the Carolina prison system that included inmates' mug shots. "A whole bunch of them visibly have MR," he said.

In the late 1980s a Texas lawyer filed a cert petition to exclude an inmate who had the mental age of a child from death row. In what would become Penry v. Lynaugh, the cert did not use the term "mentally retarded." Ellis represented a coalition of mental disability organizations who typically did not work together in a joint effort to write an amicus brief for the case.

The Supreme Court justices looked at whether executing the mentally retarded violated contemporary standards. Three or four public opinion polls, taken in Texas, Georgia, and nationwide, said Americans opposed the practice, but supported the death penalty in general. The justices don't give much weight to polls, however, Ellis said. O'Connor provided the swing vote, noting that "we count states, and you only have one." (They actually had two; Maryland had recently passed a law similar to Georgia's.)

Ellis explained that judges care what states think because of the "unusual" in "cruel and unusual punishment." They don't want to substitute the judges' views for those in the political branches, he said, thinking instead "if the people don't want it, they will get their state legislatures to overturn it."

Ellis criticized this line of thinking, noting that the justices don't draw distinctions between small and large states, in terms of population or in the number of capital punishment cases. "It's the [durability of laws that are able to make it through the legislative] process rather than something magical about the sovereignty of the states" that convinces courts.

After the defeat Ellis and other advocates began to lobby state legislatures, finding success in Kentucky and New Mexico the following year. "The fact that we had southern states didn't hurt," he said, and indeed they targeted the South. Colorado took four years, while North Carolina and Florida took seven or eight years.

"What mattered was the effort by the local advocates of the ARC and the other disability organizations," he said.

The parents who had become advocates for better service in schools and better living arrangements had developed a presence in the legislature. "I was asking them to do something that wasn't going to help their kids at all," he said, noting that to his knowledge no one on death row had parents who were in ARC. To get involved in the death penalty issue was in a way "calling an airstrike" on their own cause, yet they took it on in "extraordinary" fashion.

In 2001, five states passed the legislation. Florida in particular was difficult to crack. "I really wanted Florida because that, with Texas, is sort of the gold standard." At the end of Florida's legislative session the bill had passed the Senate unanimously, but got mired down in the House, which has closer connections to the governor. The speaker bottled it up, and wouldn't allow the vote.

Democrat Frank Mann, an ally to the cause, was "Mr. Democrat" in Florida, Ellis said. A state senator, Mann had run for governor and was once chair of the state party. On the last day of the session, the bill looked dead, but Mann camped out in the outside office of the governor, eventually breaking in to speak to Gov. Jeb Bush. He urged Bush to support the bill, promising to change his registration to the Republican Party if he would.

"So Frank is now a Fort Meyers Republican," Ellis said. "That's the level of dedication that it takes in the states."

Thirteen states had passed some form of the statute by the time the Supreme Court granted cert in the case of a mentally retarded North Carolina inmate. The day before the argument, as the state reached the deadline for filing its brief, the attorney general offered advocates a deal to ban the practice and make the ban retroactive. The case ended there.

"Whether you accept that deal was not a slam-dunk issue," Ellis said. "It certainly was to the people of North Carolina." While you might save some North Carolina inmates, you sign the death warrant of those in other states. By the time of the agreement 17 states had passed the statute and it seemed possible the Court would reverse Penry.

There were cases progressing in Mississippi, Alabama and Virginia; Ellis hoped the Supreme Court would take the Virginia case, and they did.

The Supreme Court "ruled as clearly as they could for us," but left the definition of mentally retarded to the states, thinking it would be a major source of debate. Instead the procedures by which Atkins claims will be raised have not been easy to settle upon. Cases for those who are already on death row are fairly clear-cut, but how to address new cases has been hotly debated. Ellis said courts should focus on the determination of mental retardation "as a pretrial matter," before the jury has been qualified to hand down the death penalty. Some, including prosecutors, have argued for making the determination after the verdict, which Ellis said would be like telling the jury, "would you like to undo what you've just done?" He argued that the idea of putting the stress of a capital trial on the families involved and then possibly reversing it is stupid.

Most who will receive Atkins relief are going to obtain it by a negotiated settlement-a plea for a life sentence, he suggested.

Ellis said deciding what to do about people on death row who have had or currently have mental illness will be a much tougher issue. Mental retardation had a definition people agreed on, an IQ number that offered an objective measure to reassure legislators. "Mental illness doesn't have a number," he said, and can range in degree from psychotics to the "walking worried." Because mental illness is more complex, advocates' efforts will have to form new strategies.

Ellis stressed that in law school, students can be so riveted by the courts that they lose track of what advocacy can do in legislative bodies. He told students to keep an open mind and "do things that don't initially seem like quite why you incurred so much debt."

Ellis's talk was sponsored by the National Lawyers Guild; the Institute of Law, Psychiatry, & Public Policy; the Virginia Journal of Social Policy & the Law; ACLU at UVA Law; the Pro Bono Criminal Assistance Project; and the American Constitution Society.

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