ATKINS v. VIRGINIA


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Opinion

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Justice Stevens delivered the opinion of the Court.

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v . Lynaugh , 492 U. S. 302 (1989) , the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.

I

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Jones and Atkins both testified in the guilt phase of Atkins’ trial. 1 Each confirmed most of the details in the other’s account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones’ testimony, which was both more coherent and credible than Atkins’, was obviously credited by the jury and was sufficient to establish Atkins’ guilt. 2 At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report.

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.” 3 His conclusion was based on interviews with people who knew Atkins, 4 a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59. 5

The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 (1999). At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder. 6 App. 476. The jury again sentenced Atkins to death.

The Supreme Court of Virginia affirmed the imposition of the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend “that he is mentally retarded and thus cannot be sentenced to death.” Id. , at 386, 534 S. E. 2d, at 318. The majority of the state court rejected this contention, relying on our holding in Penry . 260 Va., at 387, 534 S. E. 2d, at 319. The Court was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.” Id., at 390, 534 S. E. 2d, at 321.

Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow’s opinion that Atkins possesses average intelligence as “incredulous as a matter of law,” and concluded that “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” Id., at 394, 395–396, 534 S. E. 2d, at 323–324. In their opinion, “it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way.” Id., at 397, 534 S. E. 2d, at 325.

Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case. 533 U. S. 976 (2001) .

II

The Eighth Amendment succinctly prohibits “excessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Weems v. United States, 217 U. S. 349 (1910) , we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.” Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U. S. 957, 997–998 (1991) ( Kennedy, J., concurring in part and concurring in judgment); see also id., at 1009–1011 (White, J., dissenting). 7 Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U. S. 660, 666–667 (1962) , because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id., at 667.

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958) : “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. … The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id., at 100–101.

Proportionality review under those evolving standards should be informed by “ ‘objective factors to the maximum possible extent,’ ” see Harmelin , 501 U. S., at 1000 (quoting Rummel v. Estelle , 445 U. S 263, 274–275 (1980)). We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry, 492 U. S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593–596 (1977) , or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789–793 (1982) . In Coker , we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to support the conclusion that the “current judgment,” though “not wholly unanimous,” weighed very heavily on the side of rejecting capital punishment as a “suitable penalty for raping an adult woman.” Coker, 433 U. S., at 596. The “current legislative judgment” relevant to our decision in Enmund was less clear than in Coker but “nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue.” Enmund , 458 U. S., at 793.

We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” 433 U. S., at 597. For example, in Enmund , we concluded by expressing our own judgment about the issue:

“For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.” 458 U. S., at 801 (emphasis added).

Thus, in cases involving a consensus, our own judgment is “brought to bear,” Coker , 433 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

III

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia 8 apparently led to the enactment of the first state statute prohibiting such executions. 9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.” 10 In 1989, Maryland enacted a similar prohibition. 11 It was in that year that we decided Penry , and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” 492 U. S., at 334.

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry , state legislatures across the country began to address the issue. In 1990 Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. 12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. 13 Nebraska followed suit in 1998. 14 There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States—South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina—joined the procession. 15 The Texas Legislature unanimously adopted a similar bill, 16 and bills have passed at least one house in other States, including Virginia and Nevada. 17

It is not so much the number of these States that is significant, but the consistency of the direction of change. 18 Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition. 19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry . 20 The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it. 21

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. 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. As was our approach in Ford v. Wainwright , with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” 477 U. S. 399, 405, 416–417 (1986) . 22

IV

This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.

As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. 23 There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. 24 Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976) , identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U. S., at 798.

With respect to retribution—the interest in seeing that the offender gets his “just deserts”—the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980) , we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Id., at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence—the interest in preventing capital crimes by prospective offenders—“it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,’ ” Enmund, 458 U. S., at 799. Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Gregg, 428 U. S., at 186. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio , 438 U. S. 586, 605 (1978) , is enhanced, not only by the possibility of false confessions, 25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 492 U. S., at 323–325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford, 477 U. S., at 405.

The judgment of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Initially, both Jones and Atkins were indicted for capital murder. The prosecution ultimately permitted Jones to plead guilty to first-degree murder in exchange for his testimony against Atkins. As a result of the plea, Jones became ineligible to receive the death penalty.

2 Highly damaging to the credibility of Atkins’ testimony was its substantial inconsistency with the statement he gave to the police upon his arrest. Jones, in contrast, had declined to make an initial statement to the authorities.

3 The American Association of Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992). The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70. Id., at 42–43.

4 The doctor interviewed Atkins, members of his family, and deputies at the jail where he had been incarcerated for the preceding 18 months. Dr. Nelson also reviewed the statements that Atkins had given to the police and the investigative reports concerning this case.

5 Dr. Nelson administered the Wechsler Adult Intelligence Scales test (WAIS–III), the standard instrument in the United States for assessing intellectual functioning. AAMR, Mental Retardation, supra. The WAIS–III is scored by adding together the number of points earned on different subtests, and using a mathematical formula to convert this raw score into a scaled score. The test measures an intelligence range from 45 to 155. The mean score of the test is 100, which means that a person receiving a score of 100 is considered to have an average level of cognitive functioning. A. Kaufman & E. Lichtenberger, Essentials of WAIS–III Assessment 60 (1999). It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition. 2 B. Sadock & V. Sadock, Comprehensive Textbook of Psychiatry 2952 (7th ed. 2000). At the sentencing phase, Dr. Nelson testified: “[Atkins’] full scale IQ is 59. Compared to the population at large, that means less than one percentile… . Mental retardation is a relatively rare thing. It’s about one percent of the population.” App. 274. According to Dr. Nelson, Atkins’ IQ score “would automatically qualify for Social Security disability income.” Id., at 280. Dr. Nelson also indicated that of the over 40 capital defendants that he had evaluated, Atkins was only the second individual who met the criteria for mental retardation. Id., at 310. He testified that, in his opinion, Atkins’ limited intellect had been a consistent feature throughout his life, and that his IQ score of 59 is not an “aberration, malingered result, or invalid test score.” Id., at 308.

6 Dr. Samenow’s testimony was based upon two interviews with Atkins, a review of his school records, and interviews with correctional staff. He did not administer an intelligence test, but did ask Atkins questions taken from the 1972 version of the Wechsler Memory Scale. Id., at 524–525, 529. Dr. Samenow attributed Atkins’ “academic performance [that was] by and large terrible” to the fact that he “is a person who chose to pay attention sometimes, not to pay attention others, and did poorly because he did not want to do what he was required to do.” Id., at 480–481.

7 Thus, we have read the text of the amendment to prohibit all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.

8 Jerome Bowden, who was identified as having mental retardation when he was 14-years-old, was scheduled for imminent execution in Georgia in June of 1986. The Georgia Board of Pardons and Paroles granted a stay following public protests over his execution. A psychologist selected by the State evaluated Bowden and determined that he had an IQ of 65, which is consistent with mental retardation. Nevertheless, the board lifted the stay and Bowden was executed the following day. The board concluded that Bowden understood the nature of his crime and his punishment and therefore that execution, despite his mental deficiencies, was permissible. See Montgomery, Bowden’s Execution Stirs Protest, Atlanta Journal, Oct. 13, 1986, p. A1.

9 Ga. Code Ann. §17–7–131(j) (Supp. 1988).

10 The Anti-Drug Abuse Act of 1988, Pub. L. 100–690, §7001(l), 102Stat. 4390, 21 U. S. C. §848(l). Congress expanded the federal death penalty law in 1994. It again included a provision that prohibited any individual with mental retardation from being sentenced to death or executed. Federal Death Penalty Act of 1994, 18 U. S. C. §3596(c).

11 Md. Ann. Code, Art. 27, §412(f)(1) (1989).

12 Ky. Rev. Stat. Ann. §§532.130, 532.135, 532.140; Tenn. Code Ann. §39–13–203; N. M. Stat. Ann. §31–20A–2.1; Ark. Code Ann. §5–4–618; Colo. Rev. Stat. Ann. §16–9–401; Wash. Rev. Code §10.95.030; Ind. Code §§35–36–9–2 through 35–36–9–6; Kan. Stat. Ann. §21–4623.

13 N. Y. Crim. Proc. Law §400.27. However, New York law provides that a sentence of death “may not be set aside … upon the ground that the defendant is mentally retarded” if “the killing occurred while the defendant was confined or under custody in a state correctional facility or local correctional institution.” N. Y. Crim. Proc. Law §400.27.12(d) (McKinney 2001–2002 Interim Pocket Part).

14 Neb. Rev. Stat. §28–105.01.

15 S. D. Codified Laws §23A–27A–26.1; Ariz. Rev. Stat. Ann. 13–703.02; Conn. Gen. Stat. §53a–46a; Fla. Stat. Ann. §921.137; Mo. Rev. Stat. §565.030; 2001–346 N. C. Sess. Laws p. 45.

16 House Bill No. 236 passed the Texas House on April 24, 2001, and the Senate version, S. 686, passed the Texas Senate on May 16, 2001. Governor Perry vetoed the legislation on June 17, 2001. In his veto statement, the Texas Governor did not express dissatisfaction with the principle of categorically excluding the mentally retarded from the death penalty. In fact, he stated: “We do not execute mentally retarded murderers today.” See Veto Proclamation for H. B. No. 236. Instead, his motivation to veto the bill was based upon what he perceived as a procedural flaw: “My opposition to this legislation focuses on a serious legal flaw in the bill. House Bill No. 236 would create a system whereby the jury and judge are asked to make the same determination based on two different sets of facts… . Also of grave concern is the fact that the provision that sets up this legally flawed process never received a public hearing during the legislative process.” Ibid.

17 Virginia Senate Bill No. 497 (2002); House Bill No. 957 (2002); see also Nevada Assembly Bill 353 (2001). Furthermore, a commission on capital punishment in Illinois has recently recommended that Illinois adopt a statute prohibiting the execution of mentally retarded offenders. Report of the Governor’s Commission on Capital Punishment 156 (April 2002).

18 A comparison to Stanford v. Kentucky, 492 U. S. 361 (1989) , in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty. Mont. Code Ann. §45–5–102 (1999); Ind. Code §35–50–2–3 (1998).

19 App. D to Brief for AAMR et al. as Amici Curiae.

20 Those States are Alabama, Texas, Louisiana, South Carolina, and Virginia. D. Keyes, W. Edwards, & R. Perske, People with Mental Retardation are Dying Legally, 35 Mental Retardation (Feb. 1997)(updated by Death Penalty Information Center; available at http://www.advocacyone.org/deathpenalty.html) (June 18, 2002).

21 Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. See Brief for American Psychological Association et al. as Amici Curiae; Brief for AAMR et al. as Amici Curiae. In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” See Brief for United States Catholic Conference et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 2. Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 4. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1; App. B to Brief for AAMR as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727 (appending approximately 20 state and national polls on the issue). Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue. See Thompson v. Oklahoma, 487U. S. 815, 830, 831, n. 31 (1988) (considering the views of “respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community”).

22 The statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in n. 3, supra.

23 J. McGee & F. Menolascino, The Evaluation of Defendants with Mental Retardation in the Criminal Justice System, in The Criminal Justice System and Mental Retardation 55, 58–60 (R. Conley, R. Luckasson, & G. Bouthilet eds. 1992); Appelbaum & Appelbaum, Criminal-Justice Related Competencies in Defendants with Mental Retardation, 14 J. of Psychiatry & L. 483, 487–489 (Winter 1994).

24 See, e.g., Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 429 (1985); Levy-Shiff, Kedem, & Sevillia, Ego Identity in Mentally Retarded Adolescents, 94 Am. J. Mental Retardation 541, 547 (1990); Whitman, Self Regulation and Mental Retardation, 94 Am. J. Mental Retardation 347, 360 (1990); Everington & Fulero, Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental Retardation 37 Mental Retardation 212, 212–213, 535 (1999) (hereinafter Everington & Fulero).

25 See Everington & Fulero 212–213. Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit. See Baker, Death-Row Inmate Gets Clemency; Agreement Ends Days of Suspense, Washington Post, Jan. 15, 1994, p. A1; Holt & McRoberts, Porter Fully Savors First Taste of Freedom; Judge Releases Man Once Set for Execution, Chicago Tribune, Feb. 6, 1999, p. N1.


TOP

Opinion

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Justice Stevens delivered the opinion of the Court.

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v . Lynaugh , 492 U. S. 302 (1989) , the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.

I

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Jones and Atkins both testified in the guilt phase of Atkins’ trial. 1 Each confirmed most of the details in the other’s account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones’ testimony, which was both more coherent and credible than Atkins’, was obviously credited by the jury and was sufficient to establish Atkins’ guilt. 2 At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report.

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.” 3 His conclusion was based on interviews with people who knew Atkins, 4 a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59. 5

The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 (1999). At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder. 6 App. 476. The jury again sentenced Atkins to death.

The Supreme Court of Virginia affirmed the imposition of the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend “that he is mentally retarded and thus cannot be sentenced to death.” Id. , at 386, 534 S. E. 2d, at 318. The majority of the state court rejected this contention, relying on our holding in Penry . 260 Va., at 387, 534 S. E. 2d, at 319. The Court was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.” Id., at 390, 534 S. E. 2d, at 321.

Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow’s opinion that Atkins possesses average intelligence as “incredulous as a matter of law,” and concluded that “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” Id., at 394, 395–396, 534 S. E. 2d, at 323–324. In their opinion, “it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way.” Id., at 397, 534 S. E. 2d, at 325.

Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case. 533 U. S. 976 (2001) .

II

The Eighth Amendment succinctly prohibits “excessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Weems v. United States, 217 U. S. 349 (1910) , we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.” Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U. S. 957, 997–998 (1991) ( Kennedy, J., concurring in part and concurring in judgment); see also id., at 1009–1011 (White, J., dissenting). 7 Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U. S. 660, 666–667 (1962) , because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id., at 667.

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958) : “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. … The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id., at 100–101.

Proportionality review under those evolving standards should be informed by “ ‘objective factors to the maximum possible extent,’ ” see Harmelin , 501 U. S., at 1000 (quoting Rummel v. Estelle , 445 U. S 263, 274–275 (1980)). We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry, 492 U. S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593–596 (1977) , or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789–793 (1982) . In Coker , we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to support the conclusion that the “current judgment,” though “not wholly unanimous,” weighed very heavily on the side of rejecting capital punishment as a “suitable penalty for raping an adult woman.” Coker, 433 U. S., at 596. The “current legislative judgment” relevant to our decision in Enmund was less clear than in Coker but “nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue.” Enmund , 458 U. S., at 793.

We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” 433 U. S., at 597. For example, in Enmund , we concluded by expressing our own judgment about the issue:

“For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.” 458 U. S., at 801 (emphasis added).

Thus, in cases involving a consensus, our own judgment is “brought to bear,” Coker , 433 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

III

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia 8 apparently led to the enactment of the first state statute prohibiting such executions. 9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.” 10 In 1989, Maryland enacted a similar prohibition. 11 It was in that year that we decided Penry , and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” 492 U. S., at 334.

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry , state legislatures across the country began to address the issue. In 1990 Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. 12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. 13 Nebraska followed suit in 1998. 14 There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States—South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina—joined the procession. 15 The Texas Legislature unanimously adopted a similar bill, 16 and bills have passed at least one house in other States, including Virginia and Nevada. 17

It is not so much the number of these States that is significant, but the consistency of the direction of change. 18 Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition. 19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry . 20 The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it. 21

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. 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. As was our approach in Ford v. Wainwright , with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” 477 U. S. 399, 405, 416–417 (1986) . 22

IV

This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.

As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. 23 There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. 24 Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976) , identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U. S., at 798.

With respect to retribution—the interest in seeing that the offender gets his “just deserts”—the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980) , we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Id., at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence—the interest in preventing capital crimes by prospective offenders—“it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,’ ” Enmund, 458 U. S., at 799. Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Gregg, 428 U. S., at 186. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio , 438 U. S. 586, 605 (1978) , is enhanced, not only by the possibility of false confessions, 25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 492 U. S., at 323–325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford, 477 U. S., at 405.

The judgment of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Initially, both Jones and Atkins were indicted for capital murder. The prosecution ultimately permitted Jones to plead guilty to first-degree murder in exchange for his testimony against Atkins. As a result of the plea, Jones became ineligible to receive the death penalty.

2 Highly damaging to the credibility of Atkins’ testimony was its substantial inconsistency with the statement he gave to the police upon his arrest. Jones, in contrast, had declined to make an initial statement to the authorities.

3 The American Association of Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992). The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70. Id., at 42–43.

4 The doctor interviewed Atkins, members of his family, and deputies at the jail where he had been incarcerated for the preceding 18 months. Dr. Nelson also reviewed the statements that Atkins had given to the police and the investigative reports concerning this case.

5 Dr. Nelson administered the Wechsler Adult Intelligence Scales test (WAIS–III), the standard instrument in the United States for assessing intellectual functioning. AAMR, Mental Retardation, supra. The WAIS–III is scored by adding together the number of points earned on different subtests, and using a mathematical formula to convert this raw score into a scaled score. The test measures an intelligence range from 45 to 155. The mean score of the test is 100, which means that a person receiving a score of 100 is considered to have an average level of cognitive functioning. A. Kaufman & E. Lichtenberger, Essentials of WAIS–III Assessment 60 (1999). It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition. 2 B. Sadock & V. Sadock, Comprehensive Textbook of Psychiatry 2952 (7th ed. 2000). At the sentencing phase, Dr. Nelson testified: “[Atkins’] full scale IQ is 59. Compared to the population at large, that means less than one percentile… . Mental retardation is a relatively rare thing. It’s about one percent of the population.” App. 274. According to Dr. Nelson, Atkins’ IQ score “would automatically qualify for Social Security disability income.” Id., at 280. Dr. Nelson also indicated that of the over 40 capital defendants that he had evaluated, Atkins was only the second individual who met the criteria for mental retardation. Id., at 310. He testified that, in his opinion, Atkins’ limited intellect had been a consistent feature throughout his life, and that his IQ score of 59 is not an “aberration, malingered result, or invalid test score.” Id., at 308.

6 Dr. Samenow’s testimony was based upon two interviews with Atkins, a review of his school records, and interviews with correctional staff. He did not administer an intelligence test, but did ask Atkins questions taken from the 1972 version of the Wechsler Memory Scale. Id., at 524–525, 529. Dr. Samenow attributed Atkins’ “academic performance [that was] by and large terrible” to the fact that he “is a person who chose to pay attention sometimes, not to pay attention others, and did poorly because he did not want to do what he was required to do.” Id., at 480–481.

7 Thus, we have read the text of the amendment to prohibit all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.

8 Jerome Bowden, who was identified as having mental retardation when he was 14-years-old, was scheduled for imminent execution in Georgia in June of 1986. The Georgia Board of Pardons and Paroles granted a stay following public protests over his execution. A psychologist selected by the State evaluated Bowden and determined that he had an IQ of 65, which is consistent with mental retardation. Nevertheless, the board lifted the stay and Bowden was executed the following day. The board concluded that Bowden understood the nature of his crime and his punishment and therefore that execution, despite his mental deficiencies, was permissible. See Montgomery, Bowden’s Execution Stirs Protest, Atlanta Journal, Oct. 13, 1986, p. A1.

9 Ga. Code Ann. §17–7–131(j) (Supp. 1988).

10 The Anti-Drug Abuse Act of 1988, Pub. L. 100–690, §7001(l), 102Stat. 4390, 21 U. S. C. §848(l). Congress expanded the federal death penalty law in 1994. It again included a provision that prohibited any individual with mental retardation from being sentenced to death or executed. Federal Death Penalty Act of 1994, 18 U. S. C. §3596(c).

11 Md. Ann. Code, Art. 27, §412(f)(1) (1989).

12 Ky. Rev. Stat. Ann. §§532.130, 532.135, 532.140; Tenn. Code Ann. §39–13–203; N. M. Stat. Ann. §31–20A–2.1; Ark. Code Ann. §5–4–618; Colo. Rev. Stat. Ann. §16–9–401; Wash. Rev. Code §10.95.030; Ind. Code §§35–36–9–2 through 35–36–9–6; Kan. Stat. Ann. §21–4623.

13 N. Y. Crim. Proc. Law §400.27. However, New York law provides that a sentence of death “may not be set aside … upon the ground that the defendant is mentally retarded” if “the killing occurred while the defendant was confined or under custody in a state correctional facility or local correctional institution.” N. Y. Crim. Proc. Law §400.27.12(d) (McKinney 2001–2002 Interim Pocket Part).

14 Neb. Rev. Stat. §28–105.01.

15 S. D. Codified Laws §23A–27A–26.1; Ariz. Rev. Stat. Ann. 13–703.02; Conn. Gen. Stat. §53a–46a; Fla. Stat. Ann. §921.137; Mo. Rev. Stat. §565.030; 2001–346 N. C. Sess. Laws p. 45.

16 House Bill No. 236 passed the Texas House on April 24, 2001, and the Senate version, S. 686, passed the Texas Senate on May 16, 2001. Governor Perry vetoed the legislation on June 17, 2001. In his veto statement, the Texas Governor did not express dissatisfaction with the principle of categorically excluding the mentally retarded from the death penalty. In fact, he stated: “We do not execute mentally retarded murderers today.” See Veto Proclamation for H. B. No. 236. Instead, his motivation to veto the bill was based upon what he perceived as a procedural flaw: “My opposition to this legislation focuses on a serious legal flaw in the bill. House Bill No. 236 would create a system whereby the jury and judge are asked to make the same determination based on two different sets of facts… . Also of grave concern is the fact that the provision that sets up this legally flawed process never received a public hearing during the legislative process.” Ibid.

17 Virginia Senate Bill No. 497 (2002); House Bill No. 957 (2002); see also Nevada Assembly Bill 353 (2001). Furthermore, a commission on capital punishment in Illinois has recently recommended that Illinois adopt a statute prohibiting the execution of mentally retarded offenders. Report of the Governor’s Commission on Capital Punishment 156 (April 2002).

18 A comparison to Stanford v. Kentucky, 492 U. S. 361 (1989) , in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty. Mont. Code Ann. §45–5–102 (1999); Ind. Code §35–50–2–3 (1998).

19 App. D to Brief for AAMR et al. as Amici Curiae.

20 Those States are Alabama, Texas, Louisiana, South Carolina, and Virginia. D. Keyes, W. Edwards, & R. Perske, People with Mental Retardation are Dying Legally, 35 Mental Retardation (Feb. 1997)(updated by Death Penalty Information Center; available at http://www.advocacyone.org/deathpenalty.html) (June 18, 2002).

21 Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. See Brief for American Psychological Association et al. as Amici Curiae; Brief for AAMR et al. as Amici Curiae. In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” See Brief for United States Catholic Conference et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 2. Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 4. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1; App. B to Brief for AAMR as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727 (appending approximately 20 state and national polls on the issue). Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue. See Thompson v. Oklahoma, 487U. S. 815, 830, 831, n. 31 (1988) (considering the views of “respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community”).

22 The statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in n. 3, supra.

23 J. McGee & F. Menolascino, The Evaluation of Defendants with Mental Retardation in the Criminal Justice System, in The Criminal Justice System and Mental Retardation 55, 58–60 (R. Conley, R. Luckasson, & G. Bouthilet eds. 1992); Appelbaum & Appelbaum, Criminal-Justice Related Competencies in Defendants with Mental Retardation, 14 J. of Psychiatry & L. 483, 487–489 (Winter 1994).

24 See, e.g., Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 429 (1985); Levy-Shiff, Kedem, & Sevillia, Ego Identity in Mentally Retarded Adolescents, 94 Am. J. Mental Retardation 541, 547 (1990); Whitman, Self Regulation and Mental Retardation, 94 Am. J. Mental Retardation 347, 360 (1990); Everington & Fulero, Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental Retardation 37 Mental Retardation 212, 212–213, 535 (1999) (hereinafter Everington & Fulero).

25 See Everington & Fulero 212–213. Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit. See Baker, Death-Row Inmate Gets Clemency; Agreement Ends Days of Suspense, Washington Post, Jan. 15, 1994, p. A1; Holt & McRoberts, Porter Fully Savors First Taste of Freedom; Judge Releases Man Once Set for Execution, Chicago Tribune, Feb. 6, 1999, p. N1.


TOP

Opinion

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Justice Stevens delivered the opinion of the Court.

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v . Lynaugh , 492 U. S. 302 (1989) , the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.

I

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Jones and Atkins both testified in the guilt phase of Atkins’ trial. 1 Each confirmed most of the details in the other’s account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones’ testimony, which was both more coherent and credible than Atkins’, was obviously credited by the jury and was sufficient to establish Atkins’ guilt. 2 At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report.

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.” 3 His conclusion was based on interviews with people who knew Atkins, 4 a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59. 5

The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 (1999). At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder. 6 App. 476. The jury again sentenced Atkins to death.

The Supreme Court of Virginia affirmed the imposition of the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend “that he is mentally retarded and thus cannot be sentenced to death.” Id. , at 386, 534 S. E. 2d, at 318. The majority of the state court rejected this contention, relying on our holding in Penry . 260 Va., at 387, 534 S. E. 2d, at 319. The Court was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.” Id., at 390, 534 S. E. 2d, at 321.

Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow’s opinion that Atkins possesses average intelligence as “incredulous as a matter of law,” and concluded that “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” Id., at 394, 395–396, 534 S. E. 2d, at 323–324. In their opinion, “it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way.” Id., at 397, 534 S. E. 2d, at 325.

Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case. 533 U. S. 976 (2001) .

II

The Eighth Amendment succinctly prohibits “excessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Weems v. United States, 217 U. S. 349 (1910) , we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.” Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U. S. 957, 997–998 (1991) ( Kennedy, J., concurring in part and concurring in judgment); see also id., at 1009–1011 (White, J., dissenting). 7 Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U. S. 660, 666–667 (1962) , because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id., at 667.

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958) : “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. … The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id., at 100–101.

Proportionality review under those evolving standards should be informed by “ ‘objective factors to the maximum possible extent,’ ” see Harmelin , 501 U. S., at 1000 (quoting Rummel v. Estelle , 445 U. S 263, 274–275 (1980)). We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry, 492 U. S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593–596 (1977) , or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789–793 (1982) . In Coker , we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to support the conclusion that the “current judgment,” though “not wholly unanimous,” weighed very heavily on the side of rejecting capital punishment as a “suitable penalty for raping an adult woman.” Coker, 433 U. S., at 596. The “current legislative judgment” relevant to our decision in Enmund was less clear than in Coker but “nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue.” Enmund , 458 U. S., at 793.

We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” 433 U. S., at 597. For example, in Enmund , we concluded by expressing our own judgment about the issue:

“For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.” 458 U. S., at 801 (emphasis added).

Thus, in cases involving a consensus, our own judgment is “brought to bear,” Coker , 433 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

III

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia 8 apparently led to the enactment of the first state statute prohibiting such executions. 9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.” 10 In 1989, Maryland enacted a similar prohibition. 11 It was in that year that we decided Penry , and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” 492 U. S., at 334.

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry , state legislatures across the country began to address the issue. In 1990 Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. 12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. 13 Nebraska followed suit in 1998. 14 There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States—South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina—joined the procession. 15 The Texas Legislature unanimously adopted a similar bill, 16 and bills have passed at least one house in other States, including Virginia and Nevada. 17

It is not so much the number of these States that is significant, but the consistency of the direction of change. 18 Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition. 19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry . 20 The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it. 21

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. 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. As was our approach in Ford v. Wainwright , with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” 477 U. S. 399, 405, 416–417 (1986) . 22

IV

This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.

As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. 23 There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. 24 Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976) , identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U. S., at 798.

With respect to retribution—the interest in seeing that the offender gets his “just deserts”—the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980) , we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Id., at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence—the interest in preventing capital crimes by prospective offenders—“it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,’ ” Enmund, 458 U. S., at 799. Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Gregg, 428 U. S., at 186. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio , 438 U. S. 586, 605 (1978) , is enhanced, not only by the possibility of false confessions, 25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 492 U. S., at 323–325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford, 477 U. S., at 405.

The judgment of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Initially, both Jones and Atkins were indicted for capital murder. The prosecution ultimately permitted Jones to plead guilty to first-degree murder in exchange for his testimony against Atkins. As a result of the plea, Jones became ineligible to receive the death penalty.

2 Highly damaging to the credibility of Atkins’ testimony was its substantial inconsistency with the statement he gave to the police upon his arrest. Jones, in contrast, had declined to make an initial statement to the authorities.

3 The American Association of Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992). The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70. Id., at 42–43.

4 The doctor interviewed Atkins, members of his family, and deputies at the jail where he had been incarcerated for the preceding 18 months. Dr. Nelson also reviewed the statements that Atkins had given to the police and the investigative reports concerning this case.

5 Dr. Nelson administered the Wechsler Adult Intelligence Scales test (WAIS–III), the standard instrument in the United States for assessing intellectual functioning. AAMR, Mental Retardation, supra. The WAIS–III is scored by adding together the number of points earned on different subtests, and using a mathematical formula to convert this raw score into a scaled score. The test measures an intelligence range from 45 to 155. The mean score of the test is 100, which means that a person receiving a score of 100 is considered to have an average level of cognitive functioning. A. Kaufman & E. Lichtenberger, Essentials of WAIS–III Assessment 60 (1999). It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition. 2 B. Sadock & V. Sadock, Comprehensive Textbook of Psychiatry 2952 (7th ed. 2000). At the sentencing phase, Dr. Nelson testified: “[Atkins’] full scale IQ is 59. Compared to the population at large, that means less than one percentile… . Mental retardation is a relatively rare thing. It’s about one percent of the population.” App. 274. According to Dr. Nelson, Atkins’ IQ score “would automatically qualify for Social Security disability income.” Id., at 280. Dr. Nelson also indicated that of the over 40 capital defendants that he had evaluated, Atkins was only the second individual who met the criteria for mental retardation. Id., at 310. He testified that, in his opinion, Atkins’ limited intellect had been a consistent feature throughout his life, and that his IQ score of 59 is not an “aberration, malingered result, or invalid test score.” Id., at 308.

6 Dr. Samenow’s testimony was based upon two interviews with Atkins, a review of his school records, and interviews with correctional staff. He did not administer an intelligence test, but did ask Atkins questions taken from the 1972 version of the Wechsler Memory Scale. Id., at 524–525, 529. Dr. Samenow attributed Atkins’ “academic performance [that was] by and large terrible” to the fact that he “is a person who chose to pay attention sometimes, not to pay attention others, and did poorly because he did not want to do what he was required to do.” Id., at 480–481.

7 Thus, we have read the text of the amendment to prohibit all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.

8 Jerome Bowden, who was identified as having mental retardation when he was 14-years-old, was scheduled for imminent execution in Georgia in June of 1986. The Georgia Board of Pardons and Paroles granted a stay following public protests over his execution. A psychologist selected by the State evaluated Bowden and determined that he had an IQ of 65, which is consistent with mental retardation. Nevertheless, the board lifted the stay and Bowden was executed the following day. The board concluded that Bowden understood the nature of his crime and his punishment and therefore that execution, despite his mental deficiencies, was permissible. See Montgomery, Bowden’s Execution Stirs Protest, Atlanta Journal, Oct. 13, 1986, p. A1.

9 Ga. Code Ann. §17–7–131(j) (Supp. 1988).

10 The Anti-Drug Abuse Act of 1988, Pub. L. 100–690, §7001(l), 102Stat. 4390, 21 U. S. C. §848(l). Congress expanded the federal death penalty law in 1994. It again included a provision that prohibited any individual with mental retardation from being sentenced to death or executed. Federal Death Penalty Act of 1994, 18 U. S. C. §3596(c).

11 Md. Ann. Code, Art. 27, §412(f)(1) (1989).

12 Ky. Rev. Stat. Ann. §§532.130, 532.135, 532.140; Tenn. Code Ann. §39–13–203; N. M. Stat. Ann. §31–20A–2.1; Ark. Code Ann. §5–4–618; Colo. Rev. Stat. Ann. §16–9–401; Wash. Rev. Code §10.95.030; Ind. Code §§35–36–9–2 through 35–36–9–6; Kan. Stat. Ann. §21–4623.

13 N. Y. Crim. Proc. Law §400.27. However, New York law provides that a sentence of death “may not be set aside … upon the ground that the defendant is mentally retarded” if “the killing occurred while the defendant was confined or under custody in a state correctional facility or local correctional institution.” N. Y. Crim. Proc. Law §400.27.12(d) (McKinney 2001–2002 Interim Pocket Part).

14 Neb. Rev. Stat. §28–105.01.

15 S. D. Codified Laws §23A–27A–26.1; Ariz. Rev. Stat. Ann. 13–703.02; Conn. Gen. Stat. §53a–46a; Fla. Stat. Ann. §921.137; Mo. Rev. Stat. §565.030; 2001–346 N. C. Sess. Laws p. 45.

16 House Bill No. 236 passed the Texas House on April 24, 2001, and the Senate version, S. 686, passed the Texas Senate on May 16, 2001. Governor Perry vetoed the legislation on June 17, 2001. In his veto statement, the Texas Governor did not express dissatisfaction with the principle of categorically excluding the mentally retarded from the death penalty. In fact, he stated: “We do not execute mentally retarded murderers today.” See Veto Proclamation for H. B. No. 236. Instead, his motivation to veto the bill was based upon what he perceived as a procedural flaw: “My opposition to this legislation focuses on a serious legal flaw in the bill. House Bill No. 236 would create a system whereby the jury and judge are asked to make the same determination based on two different sets of facts… . Also of grave concern is the fact that the provision that sets up this legally flawed process never received a public hearing during the legislative process.” Ibid.

17 Virginia Senate Bill No. 497 (2002); House Bill No. 957 (2002); see also Nevada Assembly Bill 353 (2001). Furthermore, a commission on capital punishment in Illinois has recently recommended that Illinois adopt a statute prohibiting the execution of mentally retarded offenders. Report of the Governor’s Commission on Capital Punishment 156 (April 2002).

18 A comparison to Stanford v. Kentucky, 492 U. S. 361 (1989) , in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty. Mont. Code Ann. §45–5–102 (1999); Ind. Code §35–50–2–3 (1998).

19 App. D to Brief for AAMR et al. as Amici Curiae.

20 Those States are Alabama, Texas, Louisiana, South Carolina, and Virginia. D. Keyes, W. Edwards, & R. Perske, People with Mental Retardation are Dying Legally, 35 Mental Retardation (Feb. 1997)(updated by Death Penalty Information Center; available at http://www.advocacyone.org/deathpenalty.html) (June 18, 2002).

21 Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. See Brief for American Psychological Association et al. as Amici Curiae; Brief for AAMR et al. as Amici Curiae. In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” See Brief for United States Catholic Conference et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 2. Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 4. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1; App. B to Brief for AAMR as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727 (appending approximately 20 state and national polls on the issue). Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue. See Thompson v. Oklahoma, 487U. S. 815, 830, 831, n. 31 (1988) (considering the views of “respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community”).

22 The statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in n. 3, supra.

23 J. McGee & F. Menolascino, The Evaluation of Defendants with Mental Retardation in the Criminal Justice System, in The Criminal Justice System and Mental Retardation 55, 58–60 (R. Conley, R. Luckasson, & G. Bouthilet eds. 1992); Appelbaum & Appelbaum, Criminal-Justice Related Competencies in Defendants with Mental Retardation, 14 J. of Psychiatry & L. 483, 487–489 (Winter 1994).

24 See, e.g., Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 429 (1985); Levy-Shiff, Kedem, & Sevillia, Ego Identity in Mentally Retarded Adolescents, 94 Am. J. Mental Retardation 541, 547 (1990); Whitman, Self Regulation and Mental Retardation, 94 Am. J. Mental Retardation 347, 360 (1990); Everington & Fulero, Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental Retardation 37 Mental Retardation 212, 212–213, 535 (1999) (hereinafter Everington & Fulero).

25 See Everington & Fulero 212–213. Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit. See Baker, Death-Row Inmate Gets Clemency; Agreement Ends Days of Suspense, Washington Post, Jan. 15, 1994, p. A1; Holt & McRoberts, Porter Fully Savors First Taste of Freedom; Judge Releases Man Once Set for Execution, Chicago Tribune, Feb. 6, 1999, p. N1.


TOP

Opinion

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Justice Stevens delivered the opinion of the Court.

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v . Lynaugh , 492 U. S. 302 (1989) , the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.

I

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Jones and Atkins both testified in the guilt phase of Atkins’ trial. 1 Each confirmed most of the details in the other’s account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones’ testimony, which was both more coherent and credible than Atkins’, was obviously credited by the jury and was sufficient to establish Atkins’ guilt. 2 At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report.

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.” 3 His conclusion was based on interviews with people who knew Atkins, 4 a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59. 5

The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 (1999). At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder. 6 App. 476. The jury again sentenced Atkins to death.

The Supreme Court of Virginia affirmed the imposition of the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend “that he is mentally retarded and thus cannot be sentenced to death.” Id. , at 386, 534 S. E. 2d, at 318. The majority of the state court rejected this contention, relying on our holding in Penry . 260 Va., at 387, 534 S. E. 2d, at 319. The Court was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.” Id., at 390, 534 S. E. 2d, at 321.

Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow’s opinion that Atkins possesses average intelligence as “incredulous as a matter of law,” and concluded that “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” Id., at 394, 395–396, 534 S. E. 2d, at 323–324. In their opinion, “it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way.” Id., at 397, 534 S. E. 2d, at 325.

Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case. 533 U. S. 976 (2001) .

II

The Eighth Amendment succinctly prohibits “excessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Weems v. United States, 217 U. S. 349 (1910) , we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.” Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U. S. 957, 997–998 (1991) ( Kennedy, J., concurring in part and concurring in judgment); see also id., at 1009–1011 (White, J., dissenting). 7 Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U. S. 660, 666–667 (1962) , because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id., at 667.

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958) : “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. … The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id., at 100–101.

Proportionality review under those evolving standards should be informed by “ ‘objective factors to the maximum possible extent,’ ” see Harmelin , 501 U. S., at 1000 (quoting Rummel v. Estelle , 445 U. S 263, 274–275 (1980)). We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry, 492 U. S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593–596 (1977) , or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789–793 (1982) . In Coker , we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to support the conclusion that the “current judgment,” though “not wholly unanimous,” weighed very heavily on the side of rejecting capital punishment as a “suitable penalty for raping an adult woman.” Coker, 433 U. S., at 596. The “current legislative judgment” relevant to our decision in Enmund was less clear than in Coker but “nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue.” Enmund , 458 U. S., at 793.

We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” 433 U. S., at 597. For example, in Enmund , we concluded by expressing our own judgment about the issue:

“For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.” 458 U. S., at 801 (emphasis added).

Thus, in cases involving a consensus, our own judgment is “brought to bear,” Coker , 433 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

III

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia 8 apparently led to the enactment of the first state statute prohibiting such executions. 9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.” 10 In 1989, Maryland enacted a similar prohibition. 11 It was in that year that we decided Penry , and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” 492 U. S., at 334.

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry , state legislatures across the country began to address the issue. In 1990 Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. 12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. 13 Nebraska followed suit in 1998. 14 There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States—South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina—joined the procession. 15 The Texas Legislature unanimously adopted a similar bill, 16 and bills have passed at least one house in other States, including Virginia and Nevada. 17

It is not so much the number of these States that is significant, but the consistency of the direction of change. 18 Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition. 19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry . 20 The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it. 21

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. 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. As was our approach in Ford v. Wainwright , with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” 477 U. S. 399, 405, 416–417 (1986) . 22

IV

This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.

As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. 23 There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. 24 Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976) , identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U. S., at 798.

With respect to retribution—the interest in seeing that the offender gets his “just deserts”—the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980) , we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Id., at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence—the interest in preventing capital crimes by prospective offenders—“it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,’ ” Enmund, 458 U. S., at 799. Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Gregg, 428 U. S., at 186. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio , 438 U. S. 586, 605 (1978) , is enhanced, not only by the possibility of false confessions, 25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 492 U. S., at 323–325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford, 477 U. S., at 405.

The judgment of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Initially, both Jones and Atkins were indicted for capital murder. The prosecution ultimately permitted Jones to plead guilty to first-degree murder in exchange for his testimony against Atkins. As a result of the plea, Jones became ineligible to receive the death penalty.

2 Highly damaging to the credibility of Atkins’ testimony was its substantial inconsistency with the statement he gave to the police upon his arrest. Jones, in contrast, had declined to make an initial statement to the authorities.

3 The American Association of Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992). The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70. Id., at 42–43.

4 The doctor interviewed Atkins, members of his family, and deputies at the jail where he had been incarcerated for the preceding 18 months. Dr. Nelson also reviewed the statements that Atkins had given to the police and the investigative reports concerning this case.

5 Dr. Nelson administered the Wechsler Adult Intelligence Scales test (WAIS–III), the standard instrument in the United States for assessing intellectual functioning. AAMR, Mental Retardation, supra. The WAIS–III is scored by adding together the number of points earned on different subtests, and using a mathematical formula to convert this raw score into a scaled score. The test measures an intelligence range from 45 to 155. The mean score of the test is 100, which means that a person receiving a score of 100 is considered to have an average level of cognitive functioning. A. Kaufman & E. Lichtenberger, Essentials of WAIS–III Assessment 60 (1999). It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition. 2 B. Sadock & V. Sadock, Comprehensive Textbook of Psychiatry 2952 (7th ed. 2000). At the sentencing phase, Dr. Nelson testified: “[Atkins’] full scale IQ is 59. Compared to the population at large, that means less than one percentile… . Mental retardation is a relatively rare thing. It’s about one percent of the population.” App. 274. According to Dr. Nelson, Atkins’ IQ score “would automatically qualify for Social Security disability income.” Id., at 280. Dr. Nelson also indicated that of the over 40 capital defendants that he had evaluated, Atkins was only the second individual who met the criteria for mental retardation. Id., at 310. He testified that, in his opinion, Atkins’ limited intellect had been a consistent feature throughout his life, and that his IQ score of 59 is not an “aberration, malingered result, or invalid test score.” Id., at 308.

6 Dr. Samenow’s testimony was based upon two interviews with Atkins, a review of his school records, and interviews with correctional staff. He did not administer an intelligence test, but did ask Atkins questions taken from the 1972 version of the Wechsler Memory Scale. Id., at 524–525, 529. Dr. Samenow attributed Atkins’ “academic performance [that was] by and large terrible” to the fact that he “is a person who chose to pay attention sometimes, not to pay attention others, and did poorly because he did not want to do what he was required to do.” Id., at 480–481.

7 Thus, we have read the text of the amendment to prohibit all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.

8 Jerome Bowden, who was identified as having mental retardation when he was 14-years-old, was scheduled for imminent execution in Georgia in June of 1986. The Georgia Board of Pardons and Paroles granted a stay following public protests over his execution. A psychologist selected by the State evaluated Bowden and determined that he had an IQ of 65, which is consistent with mental retardation. Nevertheless, the board lifted the stay and Bowden was executed the following day. The board concluded that Bowden understood the nature of his crime and his punishment and therefore that execution, despite his mental deficiencies, was permissible. See Montgomery, Bowden’s Execution Stirs Protest, Atlanta Journal, Oct. 13, 1986, p. A1.

9 Ga. Code Ann. §17–7–131(j) (Supp. 1988).

10 The Anti-Drug Abuse Act of 1988, Pub. L. 100–690, §7001(l), 102Stat. 4390, 21 U. S. C. §848(l). Congress expanded the federal death penalty law in 1994. It again included a provision that prohibited any individual with mental retardation from being sentenced to death or executed. Federal Death Penalty Act of 1994, 18 U. S. C. §3596(c).

11 Md. Ann. Code, Art. 27, §412(f)(1) (1989).

12 Ky. Rev. Stat. Ann. §§532.130, 532.135, 532.140; Tenn. Code Ann. §39–13–203; N. M. Stat. Ann. §31–20A–2.1; Ark. Code Ann. §5–4–618; Colo. Rev. Stat. Ann. §16–9–401; Wash. Rev. Code §10.95.030; Ind. Code §§35–36–9–2 through 35–36–9–6; Kan. Stat. Ann. §21–4623.

13 N. Y. Crim. Proc. Law §400.27. However, New York law provides that a sentence of death “may not be set aside … upon the ground that the defendant is mentally retarded” if “the killing occurred while the defendant was confined or under custody in a state correctional facility or local correctional institution.” N. Y. Crim. Proc. Law §400.27.12(d) (McKinney 2001–2002 Interim Pocket Part).

14 Neb. Rev. Stat. §28–105.01.

15 S. D. Codified Laws §23A–27A–26.1; Ariz. Rev. Stat. Ann. 13–703.02; Conn. Gen. Stat. §53a–46a; Fla. Stat. Ann. §921.137; Mo. Rev. Stat. §565.030; 2001–346 N. C. Sess. Laws p. 45.

16 House Bill No. 236 passed the Texas House on April 24, 2001, and the Senate version, S. 686, passed the Texas Senate on May 16, 2001. Governor Perry vetoed the legislation on June 17, 2001. In his veto statement, the Texas Governor did not express dissatisfaction with the principle of categorically excluding the mentally retarded from the death penalty. In fact, he stated: “We do not execute mentally retarded murderers today.” See Veto Proclamation for H. B. No. 236. Instead, his motivation to veto the bill was based upon what he perceived as a procedural flaw: “My opposition to this legislation focuses on a serious legal flaw in the bill. House Bill No. 236 would create a system whereby the jury and judge are asked to make the same determination based on two different sets of facts… . Also of grave concern is the fact that the provision that sets up this legally flawed process never received a public hearing during the legislative process.” Ibid.

17 Virginia Senate Bill No. 497 (2002); House Bill No. 957 (2002); see also Nevada Assembly Bill 353 (2001). Furthermore, a commission on capital punishment in Illinois has recently recommended that Illinois adopt a statute prohibiting the execution of mentally retarded offenders. Report of the Governor’s Commission on Capital Punishment 156 (April 2002).

18 A comparison to Stanford v. Kentucky, 492 U. S. 361 (1989) , in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty. Mont. Code Ann. §45–5–102 (1999); Ind. Code §35–50–2–3 (1998).

19 App. D to Brief for AAMR et al. as Amici Curiae.

20 Those States are Alabama, Texas, Louisiana, South Carolina, and Virginia. D. Keyes, W. Edwards, & R. Perske, People with Mental Retardation are Dying Legally, 35 Mental Retardation (Feb. 1997)(updated by Death Penalty Information Center; available at http://www.advocacyone.org/deathpenalty.html) (June 18, 2002).

21 Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. See Brief for American Psychological Association et al. as Amici Curiae; Brief for AAMR et al. as Amici Curiae. In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” See Brief for United States Catholic Conference et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 2. Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 4. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1; App. B to Brief for AAMR as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727 (appending approximately 20 state and national polls on the issue). Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue. See Thompson v. Oklahoma, 487U. S. 815, 830, 831, n. 31 (1988) (considering the views of “respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community”).

22 The statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in n. 3, supra.

23 J. McGee & F. Menolascino, The Evaluation of Defendants with Mental Retardation in the Criminal Justice System, in The Criminal Justice System and Mental Retardation 55, 58–60 (R. Conley, R. Luckasson, & G. Bouthilet eds. 1992); Appelbaum & Appelbaum, Criminal-Justice Related Competencies in Defendants with Mental Retardation, 14 J. of Psychiatry & L. 483, 487–489 (Winter 1994).

24 See, e.g., Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 429 (1985); Levy-Shiff, Kedem, & Sevillia, Ego Identity in Mentally Retarded Adolescents, 94 Am. J. Mental Retardation 541, 547 (1990); Whitman, Self Regulation and Mental Retardation, 94 Am. J. Mental Retardation 347, 360 (1990); Everington & Fulero, Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental Retardation 37 Mental Retardation 212, 212–213, 535 (1999) (hereinafter Everington & Fulero).

25 See Everington & Fulero 212–213. Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit. See Baker, Death-Row Inmate Gets Clemency; Agreement Ends Days of Suspense, Washington Post, Jan. 15, 1994, p. A1; Holt & McRoberts, Porter Fully Savors First Taste of Freedom; Judge Releases Man Once Set for Execution, Chicago Tribune, Feb. 6, 1999, p. N1.


TOP

Opinion

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Justice Stevens delivered the opinion of the Court.

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v . Lynaugh , 492 U. S. 302 (1989) , the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.

I

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Jones and Atkins both testified in the guilt phase of Atkins’ trial. 1 Each confirmed most of the details in the other’s account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones’ testimony, which was both more coherent and credible than Atkins’, was obviously credited by the jury and was sufficient to establish Atkins’ guilt. 2 At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report.

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.” 3 His conclusion was based on interviews with people who knew Atkins, 4 a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59. 5

The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 (1999). At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder. 6 App. 476. The jury again sentenced Atkins to death.

The Supreme Court of Virginia affirmed the imposition of the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend “that he is mentally retarded and thus cannot be sentenced to death.” Id. , at 386, 534 S. E. 2d, at 318. The majority of the state court rejected this contention, relying on our holding in Penry . 260 Va., at 387, 534 S. E. 2d, at 319. The Court was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.” Id., at 390, 534 S. E. 2d, at 321.

Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow’s opinion that Atkins possesses average intelligence as “incredulous as a matter of law,” and concluded that “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” Id., at 394, 395–396, 534 S. E. 2d, at 323–324. In their opinion, “it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way.” Id., at 397, 534 S. E. 2d, at 325.

Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case. 533 U. S. 976 (2001) .

II

The Eighth Amendment succinctly prohibits “excessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Weems v. United States, 217 U. S. 349 (1910) , we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.” Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U. S. 957, 997–998 (1991) ( Kennedy, J., concurring in part and concurring in judgment); see also id., at 1009–1011 (White, J., dissenting). 7 Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U. S. 660, 666–667 (1962) , because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id., at 667.

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958) : “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. … The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id., at 100–101.

Proportionality review under those evolving standards should be informed by “ ‘objective factors to the maximum possible extent,’ ” see Harmelin , 501 U. S., at 1000 (quoting Rummel v. Estelle , 445 U. S 263, 274–275 (1980)). We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry, 492 U. S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593–596 (1977) , or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789–793 (1982) . In Coker , we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to support the conclusion that the “current judgment,” though “not wholly unanimous,” weighed very heavily on the side of rejecting capital punishment as a “suitable penalty for raping an adult woman.” Coker, 433 U. S., at 596. The “current legislative judgment” relevant to our decision in Enmund was less clear than in Coker but “nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue.” Enmund , 458 U. S., at 793.

We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” 433 U. S., at 597. For example, in Enmund , we concluded by expressing our own judgment about the issue:

“For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.” 458 U. S., at 801 (emphasis added).

Thus, in cases involving a consensus, our own judgment is “brought to bear,” Coker , 433 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

III

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia 8 apparently led to the enactment of the first state statute prohibiting such executions. 9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.” 10 In 1989, Maryland enacted a similar prohibition. 11 It was in that year that we decided Penry , and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” 492 U. S., at 334.

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry , state legislatures across the country began to address the issue. In 1990 Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. 12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. 13 Nebraska followed suit in 1998. 14 There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States—South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina—joined the procession. 15 The Texas Legislature unanimously adopted a similar bill, 16 and bills have passed at least one house in other States, including Virginia and Nevada. 17

It is not so much the number of these States that is significant, but the consistency of the direction of change. 18 Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition. 19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry . 20 The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it. 21

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. 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. As was our approach in Ford v. Wainwright , with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” 477 U. S. 399, 405, 416–417 (1986) . 22

IV

This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.

As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. 23 There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. 24 Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976) , identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U. S., at 798.

With respect to retribution—the interest in seeing that the offender gets his “just deserts”—the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980) , we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Id., at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence—the interest in preventing capital crimes by prospective offenders—“it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,’ ” Enmund, 458 U. S., at 799. Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Gregg, 428 U. S., at 186. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio , 438 U. S. 586, 605 (1978) , is enhanced, not only by the possibility of false confessions, 25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 492 U. S., at 323–325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford, 477 U. S., at 405.

The judgment of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Initially, both Jones and Atkins were indicted for capital murder. The prosecution ultimately permitted Jones to plead guilty to first-degree murder in exchange for his testimony against Atkins. As a result of the plea, Jones became ineligible to receive the death penalty.

2 Highly damaging to the credibility of Atkins’ testimony was its substantial inconsistency with the statement he gave to the police upon his arrest. Jones, in contrast, had declined to make an initial statement to the authorities.

3 The American Association of Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992). The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70. Id., at 42–43.

4 The doctor interviewed Atkins, members of his family, and deputies at the jail where he had been incarcerated for the preceding 18 months. Dr. Nelson also reviewed the statements that Atkins had given to the police and the investigative reports concerning this case.

5 Dr. Nelson administered the Wechsler Adult Intelligence Scales test (WAIS–III), the standard instrument in the United States for assessing intellectual functioning. AAMR, Mental Retardation, supra. The WAIS–III is scored by adding together the number of points earned on different subtests, and using a mathematical formula to convert this raw score into a scaled score. The test measures an intelligence range from 45 to 155. The mean score of the test is 100, which means that a person receiving a score of 100 is considered to have an average level of cognitive functioning. A. Kaufman & E. Lichtenberger, Essentials of WAIS–III Assessment 60 (1999). It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition. 2 B. Sadock & V. Sadock, Comprehensive Textbook of Psychiatry 2952 (7th ed. 2000). At the sentencing phase, Dr. Nelson testified: “[Atkins’] full scale IQ is 59. Compared to the population at large, that means less than one percentile… . Mental retardation is a relatively rare thing. It’s about one percent of the population.” App. 274. According to Dr. Nelson, Atkins’ IQ score “would automatically qualify for Social Security disability income.” Id., at 280. Dr. Nelson also indicated that of the over 40 capital defendants that he had evaluated, Atkins was only the second individual who met the criteria for mental retardation. Id., at 310. He testified that, in his opinion, Atkins’ limited intellect had been a consistent feature throughout his life, and that his IQ score of 59 is not an “aberration, malingered result, or invalid test score.” Id., at 308.

6 Dr. Samenow’s testimony was based upon two interviews with Atkins, a review of his school records, and interviews with correctional staff. He did not administer an intelligence test, but did ask Atkins questions taken from the 1972 version of the Wechsler Memory Scale. Id., at 524–525, 529. Dr. Samenow attributed Atkins’ “academic performance [that was] by and large terrible” to the fact that he “is a person who chose to pay attention sometimes, not to pay attention others, and did poorly because he did not want to do what he was required to do.” Id., at 480–481.

7 Thus, we have read the text of the amendment to prohibit all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.

8 Jerome Bowden, who was identified as having mental retardation when he was 14-years-old, was scheduled for imminent execution in Georgia in June of 1986. The Georgia Board of Pardons and Paroles granted a stay following public protests over his execution. A psychologist selected by the State evaluated Bowden and determined that he had an IQ of 65, which is consistent with mental retardation. Nevertheless, the board lifted the stay and Bowden was executed the following day. The board concluded that Bowden understood the nature of his crime and his punishment and therefore that execution, despite his mental deficiencies, was permissible. See Montgomery, Bowden’s Execution Stirs Protest, Atlanta Journal, Oct. 13, 1986, p. A1.

9 Ga. Code Ann. §17–7–131(j) (Supp. 1988).

10 The Anti-Drug Abuse Act of 1988, Pub. L. 100–690, §7001(l), 102Stat. 4390, 21 U. S. C. §848(l). Congress expanded the federal death penalty law in 1994. It again included a provision that prohibited any individual with mental retardation from being sentenced to death or executed. Federal Death Penalty Act of 1994, 18 U. S. C. §3596(c).

11 Md. Ann. Code, Art. 27, §412(f)(1) (1989).

12 Ky. Rev. Stat. Ann. §§532.130, 532.135, 532.140; Tenn. Code Ann. §39–13–203; N. M. Stat. Ann. §31–20A–2.1; Ark. Code Ann. §5–4–618; Colo. Rev. Stat. Ann. §16–9–401; Wash. Rev. Code §10.95.030; Ind. Code §§35–36–9–2 through 35–36–9–6; Kan. Stat. Ann. §21–4623.

13 N. Y. Crim. Proc. Law §400.27. However, New York law provides that a sentence of death “may not be set aside … upon the ground that the defendant is mentally retarded” if “the killing occurred while the defendant was confined or under custody in a state correctional facility or local correctional institution.” N. Y. Crim. Proc. Law §400.27.12(d) (McKinney 2001–2002 Interim Pocket Part).

14 Neb. Rev. Stat. §28–105.01.

15 S. D. Codified Laws §23A–27A–26.1; Ariz. Rev. Stat. Ann. 13–703.02; Conn. Gen. Stat. §53a–46a; Fla. Stat. Ann. §921.137; Mo. Rev. Stat. §565.030; 2001–346 N. C. Sess. Laws p. 45.

16 House Bill No. 236 passed the Texas House on April 24, 2001, and the Senate version, S. 686, passed the Texas Senate on May 16, 2001. Governor Perry vetoed the legislation on June 17, 2001. In his veto statement, the Texas Governor did not express dissatisfaction with the principle of categorically excluding the mentally retarded from the death penalty. In fact, he stated: “We do not execute mentally retarded murderers today.” See Veto Proclamation for H. B. No. 236. Instead, his motivation to veto the bill was based upon what he perceived as a procedural flaw: “My opposition to this legislation focuses on a serious legal flaw in the bill. House Bill No. 236 would create a system whereby the jury and judge are asked to make the same determination based on two different sets of facts… . Also of grave concern is the fact that the provision that sets up this legally flawed process never received a public hearing during the legislative process.” Ibid.

17 Virginia Senate Bill No. 497 (2002); House Bill No. 957 (2002); see also Nevada Assembly Bill 353 (2001). Furthermore, a commission on capital punishment in Illinois has recently recommended that Illinois adopt a statute prohibiting the execution of mentally retarded offenders. Report of the Governor’s Commission on Capital Punishment 156 (April 2002).

18 A comparison to Stanford v. Kentucky, 492 U. S. 361 (1989) , in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty. Mont. Code Ann. §45–5–102 (1999); Ind. Code §35–50–2–3 (1998).

19 App. D to Brief for AAMR et al. as Amici Curiae.

20 Those States are Alabama, Texas, Louisiana, South Carolina, and Virginia. D. Keyes, W. Edwards, & R. Perske, People with Mental Retardation are Dying Legally, 35 Mental Retardation (Feb. 1997)(updated by Death Penalty Information Center; available at http://www.advocacyone.org/deathpenalty.html) (June 18, 2002).

21 Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. See Brief for American Psychological Association et al. as Amici Curiae; Brief for AAMR et al. as Amici Curiae. In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” See Brief for United States Catholic Conference et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 2. Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 4. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1; App. B to Brief for AAMR as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727 (appending approximately 20 state and national polls on the issue). Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue. See Thompson v. Oklahoma, 487U. S. 815, 830, 831, n. 31 (1988) (considering the views of “respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community”).

22 The statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in n. 3, supra.

23 J. McGee & F. Menolascino, The Evaluation of Defendants with Mental Retardation in the Criminal Justice System, in The Criminal Justice System and Mental Retardation 55, 58–60 (R. Conley, R. Luckasson, & G. Bouthilet eds. 1992); Appelbaum & Appelbaum, Criminal-Justice Related Competencies in Defendants with Mental Retardation, 14 J. of Psychiatry & L. 483, 487–489 (Winter 1994).

24 See, e.g., Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 429 (1985); Levy-Shiff, Kedem, & Sevillia, Ego Identity in Mentally Retarded Adolescents, 94 Am. J. Mental Retardation 541, 547 (1990); Whitman, Self Regulation and Mental Retardation, 94 Am. J. Mental Retardation 347, 360 (1990); Everington & Fulero, Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental Retardation 37 Mental Retardation 212, 212–213, 535 (1999) (hereinafter Everington & Fulero).

25 See Everington & Fulero 212–213. Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit. See Baker, Death-Row Inmate Gets Clemency; Agreement Ends Days of Suspense, Washington Post, Jan. 15, 1994, p. A1; Holt & McRoberts, Porter Fully Savors First Taste of Freedom; Judge Releases Man Once Set for Execution, Chicago Tribune, Feb. 6, 1999, p. N1.


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .


TOP

Dissent

DARYL RENARD ATKINS, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia


[June 20, 2002]

Chief Justice Rehnquist , with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e. , those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante , at 9–10.

I agree with Justice Scalia , post , at 1 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante , at 11–12, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989) . See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987) . The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175–176 (1976) (joint opinion of Stewart, Powell, and Stevens , JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) ( B urger , C. J. , dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958) , our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg , supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg , supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintain[ing] a link between contemporary community values and the penal system,’ ” Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968) ). In Coker , supra, at 596–597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793–794 (1982) , where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* * Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante , at 11–12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker , supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund , supra, at 796–797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102–103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford , supra, at 369, n. 1 (emphasizing that “ American conceptions of decency … are dispositive”) (emphasis in original).

Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund , Coker , or Trop suggests otherwise. Thompson , Enmund , and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality—representing the view of only a minority of the Court—offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford .

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante , at 11–12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae ; Brief for American Association on Mental Retardation et al. as Amici Curiae ; noting that “representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions … ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ ”; and stating that “polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry , 492 U. S., at 334–335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford , 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional organizations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221–271 (1994) and its Manual for Complex Litigation §21.493 pp. 101–103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical ( e.g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante , at 11–12, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina , O. T. 2001, No. 00–8727, p. 3a–7a, and cited by the Court, ante , at 11–12, n. 21:

STATE

POLL

DATE

RESPONSE

QUESTION

AR

Arkansans’ Opinion on the Death Penalty, Opinion Research Associates, Inc., Q. 13 (July 1992)

John DiPippa, Will Fairchild’s Death Violate the Constitution, or Simply Our Morality? , Arkansas Forum, Sept. 1993

1992

61% never appropriate

17% is appropriate

5% opposed to all executions

17% undecided

“Some people say that there is nothing wrong with executing a person who is mentally retarded. Others say that the death penalty should never be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?”

AZ

Behavior Research Center, Survey 2000, Q. 3 (July 2000)

2000

71% oppose

12% favor

11% depends

6% ref/unsure

“For persons convicted of murder, do you favor or oppose use of the death penalty when the defendant is mentally retarded?”

CA

Field Research Corp., California Death Penalty Survey, Q. 22 (Dec. 1989)

Frank Hill, Death Penalty For The Retarded , San Diego Union-Tribune, Mar. 28, 1993, at G3

1989

64.8% not all right

25.7% is all right

9.5% no opinion

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel the death penalty should never be imposed on persons who are mentally retarded under any circumstance. The death penalty on a mentally retarded person is …?”

CA

Field Research Corp., California Death Penalty Survey, Q. 62D (Dec. 1997)

Paul Van Slambrouck, Execution and a Convict’s Mental State , The Christian Science Monitor, Apr. 27, 1998, at 1

1997

74% disagree

17% agree

9% no opinion

“Mentally retarded defendants should be given the death penalty when they commit capital crimes.”

CT

Quinnipac University Polling Institute, Death Penalty Survey Info., Q. 35 (April 23, 2001)

2001

77% no

12% yes

11% don’t know

“Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”

FL

Amnesty International

Martin Dyckman, Death Penalty’s High Price , St. Petersburg Times, Apr. 19, 1992, at 3D

1986

71% opposed

[not provided]

GA

Georgia State University

Tracy Thompson, Executions of Retarded Opposed , Atlanta Journal, Jan. 6, 1987, at 1B

1987

66% opposed

17% favor

16% depends

[not provided]

LA

Marketing Research Inst., Loyola Death Penalty Survey, Q. 7 (Feb. 1993)

1993

77.7% no

9.2% yes

13% uncertain

“Would you vote for the death penalty if the convicted person is mentally retarded?”

LA

Louisiana Poll, Poll 104, Q. 9 (Apr. 2001)

2001

68% no

19% yes

11% no opinion

2% won’t say

“Do you believe mentally retarded people, who are convicted of capital murder, should be executed?”

MD

Survey Research Center, University of Maryland, (Nov. 1988)

1988

82% opposed

8% favor

10% other

“Would you favor or oppose the death penalty for a person convicted of murder if he or she is mentally retarded?”

MO

Missouri Mental Retardation and Death Penalty Survey, Q. 5 (Oct. 1993)

1993

61.3% not all right

23.7% is all right

15% don’t know

“Some people feel there is nothing wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Do you think it IS or IS NOT all right to impose the death penalty on a mentally retarded person?”

NC/SC

Charlotte Observer-WMTV News Poll (Sept. 2000)

Diane Suchetka, Carolinas Join Emotional Debate Over Executing Mentally Retarded , Charlotte Observer, Sept. 13, 2000

2000

64% yes

21% no

14% not sure

“Should the Carolinas ban the execution of people with mental retardation?”

NM

Research & Polling Inc., Use of the Death Penalty Public Opinion Poll, Q. 2 (Dec. 1990)

1990

57.1% oppose

10.5% support

26.2% depends

6.1% don’t know

62% support the death penalty. Asked of those that support it, “for which of the following do you support use of the death penalty…when the convicted person is mentally retarded?”

NY

Patrick Caddell Enterprises, NY Public Opinion Poll, The Death Penalty: An Executive Summary, Q. 27 (May 1989)

Ronald Tabak & J. Mark Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty , 23 LOY. L. A. L. Rev. 59, 93 (1989)

1989

82% oppose

10% favor

9% don’t know

“I’d like you to imagine you are a member of a jury. The jury has found the defendant guilty of murder beyond a reasonable doubt and now needs to decide about sentencing. You are the last juror to decide and your decision will determine whether or not the offender will receive the death penalty. Would you favor or oppose sentencing the offender to the death penalty if…the convicted person were mentally retarded?”

OK

Survey of Oklahoma Attitudes Regarding Capital Punishment: Survey Conducted for Oklahoma Indigent Defense System, Q. C (July 1999)

1999

83.5% should not be executed

10.8% should be executed

5.7% depends

“Some people think that persons convicted of murder who are mentally retarded (or have a mental age of between 5 and 10 years) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like anyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

TX

Austin American Statesman, November 15, 1988, at B3

1988

73% opposed

[not provided]

TX

Sam Houston State University, College of Criminal Justice, Texas Crime Poll On-line (1995)

Domingo Ramirez Jr. Murder Trial May Hinge on Defendant’s IQ, The Fort Worth Star-Telegram , Oct. 6, 1997, at 1

1995

61% more likely to oppose

“For each of the following items that have been found to affect people’s attitude about the death penalty, please state if you would be more likely to favor or more likely to oppose the death penalty, or wouldn’t it matter…if the murderer is severely mentally retarded?”

TX

Scripps-Howard Texas Poll: Death Penalty (Mar. 2001)

Dan Parker, Most Texans Support Death Penalty , Corpus Christi Caller-Times, Mar. 2, 2001, at A1

2001

66% no

17% yes

17% don’t know/no answer

“Should the state use the death penalty when the inmate is considered mentally retarded?”

TX

Houston Chronicle (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

59.9% no support

19.3% support

20.7% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”

US

Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept. 1988)

Saundra Torry, High Court to Hear Case on Retarded Slayer , The Washington Post, Jan. 11, 1989, at A6

1988

71% should not be executed

21% should be executed

4% depends

3% not sure/refused

“Some people think that persons convicted of murder who have a mental age of less than 18 (or the ‘retarded’) should not be executed. Other people think that ‘retarded’ persons should be subject to the death penalty like everyone else. Which is closer to the way you feel, that ‘retarded’ persons should not be executed, or that ‘retarded’ persons should be subject to the death penalty like everyone else?”

US

Yankelovich Clancy Shulman, Time/CNN Poll, Q. 14 (July 7, 1998)

Samuel R. Gross, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century , Capital Punishment and the American Future (Feb. 2001)

1989

61% oppose

27% favor

12% not sure

“Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?”

US

The Tarrance Group, Death Penalty Poll, Q. 9 (Mar. 1993)

Samuel R. Gross, Update: American Public Opinion on the Death Penalty-It’s Getting Personal , 83 Cornell L. Rev. 1448, 1467 (1998)

1993

56% not all right

32% is all right

11% unsure

“Some people feel that there is nothing wrong with imposing the death penalty on persons who are mentally retarded, depending on the circumstances. Others feel that the death penalty should never be imposed on persons who are mentally retarded under any circumstances. Which of these views comes closest to your own?”

US

Public Policy Research, Crime in America, Q. 72 (July 1995

1995

67% likely to oppose

7% likely to favor

26% wouldn’t matter

“For each item please tell me if you would be more likely to favor the death penalty, more likely to oppose the death penalty or it wouldn’t matter…if it is true that the murderer is severely mentally retarded?”

US

Princeton Research, Newsweek Poll, Q. 16 (Nov. 1995)

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

1995

83% oppose

9% favor

8% don’t know refused

“If the convicted person was…mentally retarded, would you favor or oppose the death penalty?”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 12 (Dec. 1999)

1999

58% strongly/somewhat favor

26% strongly/somewhat oppose

12% mixed/neutral

4% not sure

“… .for each proposal I read, please tell me whether you strongly favor, somewhat favor, have mixed or neutral feelings, somewhat oppose, or strongly oppose that proposal… .prohibit the death penalty for defendants who are mentally retarded.”

US

Peter Hart Research Associates, Inc., Innocence Survey, Q. 9 (Dec. 1999)

1999

72% much/somewhat less likely**

19% no difference

9% not sure

47% much less likely

25% somewhat less likely

“Suppose you were on a jury and a defendant was convicted of murder. “Now it is time to determine the sentence. If you knew that the defendant was mentally retarded or otherwise mentally impaired in a serious way, would you be much less likely to support the use of the death penalty in this specific case, somewhat less likely, or would it make no difference to you?”

US

Houston Chronicle, (Feb. 2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction: Part III, Debate Fervent in Mental Cases, Johnny Paul Penry Illustrates a Lingering Capital Conundrum , The Houston Chronicle, Feb. 6, 2001, at A6

2001

63.8% no support

16.4% support

19.8% not sure/no answer

“Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?”


Notes

* * Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00–8727, p. 19, n. 29 (noting that “actions by individual prosecutors and by juries are difficult to quantify with precision”). Petitioner’s inability to muster studies in his favor ought to cut against him, for it is his “heavy burden,” Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977) , and Enmund v. Florida, 458 U. S. 782 (1982) .