This decision is huge!  The United States Supreme Court has decided that mentally retarded prisoners who are facing the death penalty cannot be executed.  The Court held that to do so would constitute cruel and unusual punishment. 

This is a decision that will have significant impact, as there are presently twenty states, including our California, that permit the mentally retarded to be executed. 

This decision represents a significant change in the law, as for approximately twenty-five years, the execution of mentally retarded defendants has been permitted.  Justice John Paul Stevens stated that since then, “a national consensus has developed that such executions constitute cruel and unusual punishment.”  What is interesting about this decision is that it appears to represent what Justice Stevens refers to as a social and professional consensus.  Justice Stevens in his decision cites polls of American citizens and briefs received from the American Psychological Association. 

In dissent, Justice Scalia states his belief that “seldom has an opinion of the Court rested so obviously on nothing but the personal views of its members.” 

This all came about from the case of Daryl Atkins an eighteen-year-old who abducted a serviceman from Langley Air Force Base in Virginia from the parking lot of a 7-11, and, along with a friend, shot the serviceman to death.  Atkins was sentenced to death, and this decision returns the sentencing issue to the trial court, at which time it will need to be determined whether or not Atkins is mentally retarded.  His defense claims he is; the state claims he is not. 

As a therapist, I see the potential for courtroom battles as whether or not someone is deemed mentally retarded is not just a function of his I.Q., but also his ability to function in society.  If one has an I.Q. of seventy-one or higher, one will not be deemed mentally retarded.  With an I.Q. of seventy or below and above 55, it becomes an open question, and a determination needs to be made as to whether or not the individual can adapt and function within society.   The United States Supreme Court left this issue open, and did not instruct the trial court on what standard or standards to use in defining mental retardation.

I imagine this will lead to the defense bar learning a lot more about mental retardation than they know now, and having clients for whom there is any question, tested by psychologists at an early stage of the proceedings.  I would also assume that we will now have another area for which there will be a battle of experts, with the prosecution expert testifying that an individual is not mentally retarded, with the defense expert testifying that he is. 

I have no problem with the fact that this may complicate some cases, as my goal is the administration of justice.  I also am not troubled by the fact that many more arrestees who seem headed for the electric chair will be claiming they are mentally retarded.  The problem I do have is with the justification for the decision.  While the amount of times I have sided with Justices Rehnquist, Scalia, and Thomas, who are the dissenters here are infrequent, I will admit to having difficulty with a decision that attempts to both create and reflect social policy as opposed to one which upholds the rule of law.  In reading this decision, I find myself agreeing with Justice Scalia’s statement that the personal views of the members led to the ruling.  The development of a consensus against the execution of the mentally retarded, is no reason for a Supreme Court ruling.  When a social consensus is arrived at, it is time to call your legislator and have the law changed.  Contact your congressman, call your senator, write to the President, and tell any of those entities that you want the law to be changed.  The role of the United States Supreme Court is to interpret and help us define the law, not to create law out of whole cloth or create law to reflect changing social mores.  Because of the above, I find myself tentatively siding with the dissenters, although pleased from a policy standpoint.



Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth.  Mr. Unger writes a bimonthly column on legal and psychological issues.  He can be reached at