PSYCHIATRIC SERVICES ' ps.psychiatryonline.org ' October 2009 Vol. 60 No. 10 11229955

In Atkins v. Virginia the U.S.Supreme Court declared execu-tion of persons with mental retar-dation to constitute cruel and un-usual punishment, and thus to beunconstitutional under the EighthAmendment. However, the Courtleft all considerations regardinghow to implement the decisionexplicitly to the states. SinceAtkins was decided in 2002, legis-latures, courts, and mental healthexperts have struggled with itsimplementation, highlighting thecomplexities that can arise whenthe courts base legal rules on clin-ical findings. This column reviewsthe Atkins case and considers thechallenges associated with a clini-cal determination that can havelife-or-death consequences forcapital defendants. (PsychiatricServices 60:12951297, 2009)

I n 2002 the U.S. Supreme Courtdeclared execution of persons withmental retardation to constitute crueland unusual punishment, and thus tobe unconstitutional under the EighthAmendment (1). The case that trig-gered the decision, reversing an earli-er Supreme Court precedent (2), in-volved Daryl Atkins, a man with 16prior felony convictions, who facedthe death penalty for the abduction,robbery, and murder of an airmanfrom a local military base. SinceAtkins v. Virginia was decided, legis-latures, courts, and mental health ex-

perts have struggled with its imple-mentation, highlighting the complex-ities that can arise when the courtsbase legal rules on clinical findings.

Atkins represented a distinct breakwith the courts usual approach to theimpact on sentencing of a defendantsmental state at the time of the crime(3). At least since the U.S. SupremeCourt decision in Lockett v. Ohio in1978 (4), capital defendants have hadthe right to introduce evidence oftheir mental state at the sentencinghearing as a mitigating factor. Inessence, defendants were permittedto argue that their mental retardation,mental illness, intoxication, or otherimpairing condition at the time of thecrime so diminished their responsibil-ity for their actions that the ultimatepenalty of death should not be im-posed. The jury was then chargedwith weighing evidence of the defen-dants mental state, along with othermitigating factors, against the natureof the crime and any other considera-tions that might be considered aggra-vating in deciding on a sentence.

Precisely this process was followedin Daryl Atkins case. Testimony waspresented on his behalf by an expertpsychologist, who characterized himas having mild mental retardation,noting a full-scale IQ score of 59. Ajury nonetheless determined that thedeath penalty should be imposed; af-ter the initial sentence was vacatedbecause of a procedural error, a sec-ond jurywhich listened to an addi-tional psychologist hired by the pros-ecution who testified that Atkins wasof normal intelligence but had an an-tisocial personality disorderagainendorsed the death penalty. Underthe rules then in place, having had theopportunity to present his mentalstate evidence to the jury for its con-sideration, Atkins had received the

consideration to which he was enti-tled. In challenging his sentence,Atkins was asking the Supreme Courtto go beyond its traditional jurispru-dence and recognize mental retarda-tion as an absolute bar to impositionof a death sentence.

Justice Stevens opinion for a six-jus-tice majority did just that. Pointing to adeveloping consensus among thestates that persons with mental retar-dation had a reduced level of culpabil-ity and should not be put to death, themajority held that evolving standardsof decency precluded execution ofpersons with mental retardation.However, although Stevens recog-nized that there might be serious dis-agreement about whether a particulardefendant is mentally retarded, allconsiderations regarding how to im-plement the decision were explicitlyleft to the states. Atkins own case wasremanded to the Virginia courts to de-termine whether he was mentally re-tarded and thus could not be executed.

Issues in applying AtkinsIn the years since the decision inAtkins, a considerable body of litera-ture has developed, both legal andclinical, considering the challengesassociated with a clinical determina-tion that can have life-or-death conse-quences for capital defendants.Among the issues that have been ad-dressed are the definition of mentalretardation, the means that should beused to assess mental retardation, andthe procedures that should be fol-lowed for the legal determination ofretardation, including the identity ofthe decision maker. One wonderswhether, had the Court known justhow tangled these questions wouldbecome, it might have decided Atkinsdifferently.

Defining mental retardation for

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Dr. Appelbaum, who is editor of this col-umn, is the Elizabeth K. Dollard Professorof Psychiatry, Medicine, and Law, De-partment of Psychiatry, Columbia Uni-versity. Send correspondence to him atNew York State Psychiatric Institute,1051 Riverside Dr., Unit 122, New York,NY 10032 (email: psa21@columbia.edu).

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legal purposes offers a good exampleof the complexities involved. In themajority opinion, Atkins cited boththe American Association on MentalRetardation (AAMR) and the DSM-IV definitions of mental retardation,which are similar but not identical.Both DSM and AAMR approachesembrace requirements for signifi-cantly below-normal intellectualfunctioning (usually evidenced by IQscores) combined with evidence ofdeficits in adaptive functioning. The2002 post-Atkins revision of theAAMR definition reads, Mental re-tardation is a disability characterizedby significant limitations both in in-tellectual functioning and in adap-tive behavior as expressed in concep-tual, social, and practical adaptiveskills. This disability originates be-fore age 18 (5).

By leaving the definition of mentalretardation to each state to deter-mine, however, Atkins led to the cur-rent situation in which there are sig-nificant differences across jurisdic-tions, including major deviationsfrom both the DSM and AAMR ap-proaches (6). Some states requireonly significantly subaverage intel-lectual functioning, while others de-mand an IQ score below 70. Althoughmost states follow DSM and AAMR inasking whether the impairments oc-curred before age 18, at least threestates extend that to age 22, and onespeaks only of manifestations duringthe developmental period. Kansasuniquely mandates that the deficit inintellectual functioning substantiallyimpair ones capacity to appreciatethe criminality of ones conduct or toconform ones conduct to the require-ments of the law. With regard toadaptive behavior, there are statesthat speak of impairments only ingeneral terms, while others requiredeficits in one or more specified do-mains. The end result of this confus-ing welter of definitions is that a de-fendant might be considered mental-ly retarded and ineligible for thedeath penalty in one jurisdiction butface execution in another.

Issues related to the definition ofmental retardation are likely to be-come still more complicated overtime, as the concept of mental retar-dation itself evolves. In 2007 the

AAMR changed its name to theAmerican Association on Intellectualand Developmental Disabilities(AAIDD), reflecting its desire toavoid the stigma that had become at-tached to the term mental retardation(7). Experts in the field now arguethat intellectual disability, currentlythe preferred term, should not beviewed as an invariant personal traitbut as dependent on the interactionbetween the person and a given envi-ronment. Altering the environmentmay reduce the level of disability,perhaps below the point where theperson could be said to be disabled(8). How this change may affect de-fendants claims in capital cases re-mains to be seen, but there is a riskthat the very concept on which theSupreme Court relied to reach its de-cision will mutate radically in comingyears.

Assessment of the intellectual andadaptive deficits that all states requirefor a determination of mental retar-dation is another area of uncertainty.With regard to intellectual perform-ance, although an IQ below 70 hasbeen an informal landmark of mildmental retardation, the AAMR defi-nition avoids a fixed cutoff point andthe DSM refers to an IQ of approxi-mately 70 as the border. Where theline should be drawn in a particularcase, however, is not a simple matter,particularly when testing has beenperformed on several occasions withvarying results, which often occurs.Experts recommend that comparisonof an individual score to publishednorms take into account errors inmeasurement (3). Thus, an IQ of 71can best be understood as expressinga 95% likelihood that a persons IQ isbetween 65 and 77 (9). How certainone wants to be that a defendant isnot mentally retarded before impos-ing a death sentence will have an im-pact on where the line is drawn, but a95% level of certainty would appearto require a minimum full-scale IQscore of 78.

Another complicating variable isthe so-called Flynn effect. It is wellknown that IQ scores tend to riseover time, although the basis for thisphenomenon is unclear (10). In theUnited States, IQ scores tend to riseabout .3 point per year. Hence, it has

been argued that raw scores shouldbe adjusted according to the numberof years since the test being used hadbeen normed. By using this ap-proach, a defendant scoring 73 on atest normed ten years previouslywould have his score adjusted to 70,on the basis that this score better re-flects contemporary norms (10). Inaddition, because many defendantsare tested more than once (usually atleast once by experts for the prose-cution and again by experts for thedefense), some commentators be-lieve that further adjustments shouldbe made for practice effects whentesting occurs at close intervals, per-haps less than six months apart (3).But how much to adjust any score isunclear.

Assessing adaptive deficits leads tostill other conundrums. AAIDD rec-ommends the combined use of stan-dardized measures and structured in-terviews, including information gath-ered from people who have had achance to observe the person beingevaluated in various settings (5). Al-though a plethora of standardized in-struments exists to assess adaptivefunctions, none have the broad ac-ceptance of the major tests of IQ, andthe data they generate require aneven higher degree of interpretationthan IQ test scores (3,9). Moreover,for defendants who have spent longperiods of time incarcerated, theremay simply not be enough evidenceof their ability to adapt in noninstitu-tional settings to allow valid conclu-sions to be drawn. Indeed, one com-mentator has argued that none of theexisting tests assesses the kind ofadaptive deficits most prevalentamong persons with mild mental re-tardationgullibility and credulitythough they are exactly the traits mostlikely to result in their being drawninto criminal activity (8).

Along with the uncertainties re-garding the definition of mental re-tardation and the assessment of coredeficits, the states have shown greatvariability in the procedures estab-lished for reviewing claims that a de-fendant is mentally retarded (11).Generally defendants must prove thatthey are retarded by a preponderanceof the evidence, but some states re-quire them to meet a more rigorous

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standard of clear and convincing evi-dence. The determination is usuallymade before the trial begins, so thateveryone can be aware of whetherthe death penalty is at issue; howev-er, in other states it will be raised be-fore sentencing or as part of the sen-tencing process. Judges will make thedecision in many states, but in somejurisdictions the matter will be decid-ed by a jury. Because there is reasonto believe that these procedural dif-ferences may affect the outcome ofthe legal determination regardingwhether the defendant is mentally re-tarded, these variations can have im-mense significance for persons facingcapital charges (11).

Atkins and its ironiesThe difficulties in the application ofAtkins are no better exemplified thanby the proceedings involving DarylAtkins himself. After his case was re-manded by the U.S. Supreme Courtto the Virginia courts, a third sentenc-ing jury decided that he was not men-tally retarded and again imposed adeath sentence. However, that sen-tence too was overturned by the Vir-ginia Supreme Court, on the groundsthat an unqualified psychologist hadoffered testimony for the prosecutionand that the jury should not havebeen told of Atkins previous sen-tences (12). When the case was re-turned for a fourth sentencing hear-ing, something remarkable hap-

pened: the attorney for Atkins code-fendant, who had fingered Atkins asthe triggermanthus making him el-igible for the death penaltycameforward to say that his client had beencoached ten years earlier by the pros-ecution to eliminate inconsistenciesin his account. On this basis, the trialcourt vacated Atkins death penaltyand imposed a sentence of life inprison, an action upheld by the Vir-ginia Supreme Court in June 2009seven years after the U.S. SupremeCourt ruled on the case (13).

In the end, Daryl Atkins was sparedthe death penalty, although he wasnever able to convince a jury that hewas mentally retarded. However, therule spawned by his case lives on, andindeed appeared to be influential inthe U.S. Supreme Courts decision in2005 to establish an absolute bar tothe death penalty for defendants un-der the age of 18 at the time of theircrimes (14). The decision in Atkinscan be seen as a reflection of our so-cietys deep ambivalence about thedeath penalty; although reluctant tosurrender the option of imposing theultimate penalty, we are nonethelessinclined to surround it with so manyrestrictions that it will only rarely beapplied. Reliance on a clinical con-cept for that purpose, though, hasproduced a seemingly endless list ofchallenges, illustrating once againhow poorly legal and clinical con-structs mix.

References1. Atkins v Virginia, 536 US 304 (2002)

2. Penry v Lynaugh, 492 US 302 (1989)

3. Bonnie RJ, Gustafson K: The challenge ofimplementing Atkins v Virginia: how legisla-tures and courts can promote accurate as-sessments and adjudications of mental retar-dation in death penalty cases. University ofRichmond Law Review 41:811860, 2007

4. Lockett v Ohio, 438 US 586 (1978)

5. Mental Retardation: Definition, Classifica-tion, and Systems of Supports. Washington,DC, American Association on Mental Re-tardation, 2002

6. Duvall JC, Morris RJ: Assessing mental re-tardation in death penalty cases: crucial is-sues for psychology and psychological prac-tice. Professional Psychology: Research andPractice 37:658665, 2006

7. FAQ on Intellectual Disability. Washing-ton, DC, American Association on Intellec-tual and Developmental Disabilities. Avail-able at www.aamr.org/content_104.cfm

8. Weithorn L: Conceptual hurdles to the ap-plication of Atkins v Virginia. Hastings LawJournal 59:12031234, 2008

9. Everington C, Olley JG: Implications ofAtkins v Virginia: issues in defining and di-agnosing mental retardation. Journal ofForensic Psychology Practice 8:123, 2008

10. Flynn JR: Tethering the elephant: capitalcases, IQ, and the Flynn effect. Psychology,Public Policy and Law 12:170189, 2006

11. Reardon MC, ONeil KM, Levett LM: De-ciding mental retardation and mental ill-ness in capital cases: the effects of proce-dure, evidence and attitudes. Psychology,Crime, and Law 13:537557, 2007

12. Atkins v Virginia, 631 SE2d 93 (Va 2006)

13. In re Commonwealth of Virginia, 677 SE2d236 (Va 2009)

14. Roper v Simmons, 543 US 551 (2005)

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