On June 20, 2002, the United States Supreme Court released an opinion holding (6-3) that the death penalty is unconstitutional when applied to the mentally retarded. See Atkins v. Virginia, 536 U.S. __ (2002).

History behind Atkins v. Virginia

The Court’s opinion refers to the “Bloody Assizes”. The "Bloody Assizes" were trials for treason in 1685, following the failure of a rebellion lead by James Scott, the Duke of Monmouth. Lord Chief Justice Jeffreys presided over the assizes (trials held outside of London). Jeffreys extorted money from the leaders of the rebellion, but only the richest could buy clemency. Of 1,400 prisoners brought before him, 300 were hanged and 800 more were sold as slaves in the colonies. The severity of the sentences helped to mobilize support for William and Mary and their “Glorious Revolution” of 1688, and the adoption of English Bill of Rights of 1689.

Virginia's “Declaration of Rights” (1776), item 9, drew verbatim from the English Bill of Rights: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This became the Eighth Amendment to the Constitution of the United States of America.

When the American Bill of Rights was adopted in 1791, capital punishment was not considered cruel and unusual punishment for murder. In 1972, however, the United States Supreme Court first held that a death sentence could constitute “cruel and unusual punishment”, at least as applied in the cases before the Court (one was a murder in the course of a robbery and two were rape cases). Fruman v. Georgia, 408 U.S. 238 (1972). However, a majority of the Court did not believe that the Eighth Amendment categorical forbid the death penalty, and in Gregg v. Georgia, 428 U.S. 153 (1976), the Court decided that in some circumstances the death penalty might be constitutional.

The Issue: Whether Executing Mentally Retarded Convicts Violates the Eighth Amendment

The Court first confronted the issue of executing the mentally retarded in Penry v. Lynaugh, 492 U. S. 302 (1989). In Penry, the Court refused to find that executing the mentally retarded violated the Eighth Amendment. Since Penry, however, sixteen states have abolished the death penalty for the mentally retarded. This was sufficient to get the moderate judges to change their minds on the subject and reverse Penry.

The majority also gave a legal rationale for its decision. 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. The Court now reasons that only the truly evil deserve the death penalty, and in criminal law, we measure the “culpability” of a criminal by evidence of an evil state of mind, for example, evidence that the crime was premeditated, rather than a mistake or impulsive act. The Court cited evidence that the mentally retarded often act impulsively rather than thinking or planning. The Court thus seems to imply that Mr. Atkins made a mistake or acted impulsively when he shot his victim, an argument that Justice Scalia ridicules by describing the crime as shooting the victim “one , two three, four, five, six, seven, eight times”. Similarly, for deterrence, the majority questions whether killing the retarded deters them from commiting crimes, and asserts that exempting the mentally retarded will not encourage the rest of us to murder our fellows.

Legal rationales for the death penalty are notoriously implausible. Here the Court was acknowledging public will: despite the fact that it is notoriously hard to muster political opposition to the punishment of criminals, 30 of the 50 states have passed laws either abolishing the execution of the mentally retarded or abolishing capital punishment entirely. This is highly significant in the gun-happy, violence-loving United States.

The Dissenters

Chief Justice Rehnquist (joined by Justices Thomas and Scalia) dissents and objects to a footnote referring to foreign law, opinions of professional and religious organizations, and polls. The Chief Justice argues that the only “objective” sources of information about evolving standards of human decency are the laws passed by legislatures and the decisions of a jury, suggesting that the will of the people of Virginia, and the jurors who considered Mr. Atkins case, should not be second-guessed by the Court. (When the Justices use the term “objective” they mean any criteria other than the Justices’ own opinions.)

Justice Scalia, citing himself, also asserts that the Eighth Amendment only covers “cruel and unusual” punishments (torture, such as thumbscrews and the rack) and not “excessive” punishments. Most of the Court disagrees, as the majority opinion explains:

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.

Justice Scalia distorts the facts shamelessly and with the bravado of a junior prosecutor running for attorney general. Scalia asserts that only 47% of the states, not a consensus, have banned execution of the mentally retarded, but his figure does not include the twelve (12) states that abolished capital punishment entirely. Including the states that have abolished the death penalty, 3/5 of the States have outlawed executing the mentally retarded --a majority if not a “consensus”.

The dissent’s most scathing remarks are reserved for a footnote in the majority opinion which mentions the law in other countries, the opinions of many relgious and professional organizations, and some polls, to support the idea of an emerging consensus against executing the mentally retarded. Justice Scalia notes that one of these organizations mentioned in the footnote is the Conference of Catholic Bishops, and alludes to the Church’s recent public relations problems.

Against the retribution argument, Justice Scalia argues that “culpability” depends on the depravity of the crime as much as the state of mind of the criminal (a notion entirely foreign to Anglo-American criminal law, and thus lacking any citation to authority).

Justice Scalia also argues that killing retarded criminals serves the social goal of “incapacitation”, that is, killing them gets them “off the streets” and ensures they will not kill again. However, incapacitation can be accomplished by alternative punishments, i.e. life without parole, which are not subject to the same risk of irrevocable error. U.S. Constitutional law requires that if the government has alternative means to accomplish its goals without trampling on rights, then it must use those alternatives.

This is one more opinion making capital punishment more difficult, more cumbersome, and less likely to be used, without taking the final step opposed by most Americans: abolishing the death penalty entirely.

Slip opinions are available at the official U.S. Supreme Court site:


Source of historical notes: Fruman v. Georgia, 408 U.S. 238 (1972). (Marshal, concurring)