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The Supreme Court

Is the Death Penalty Cruel and Unusual Punishment?

You may think the death penalty is too cruel in any case, but the United States does permit the death penalty in certain cases. Whether the death penalty will be imposed is dependent on the state in which you live, because most criminal cases are tried based on state laws. For the few cases that make it to the federal level, there are rare instances where the death penalty can be imposed.

Just the Facts

The imposition of the death penalty is rare. Between 1967 and 1996 there was one execution for every 1,600 murders. The total number of murders in the United States during that time was 560,000, with 358 murderers executed according to the FBI's Uniform Crime Report and the Bureau of Justice Statistics. About 5,900 persons were sentenced to death between 1973 and 1996. The average time a murderer spends on death row is 11 years and 2 months, according to a 1995 article, “Capital Punishment,” published by the Bureau of Justice Statistics.

Daryl Renard Atkins started on the path to death row on August 16, 1996, when he and his friend William Jones abducted and robbed Eric Nesbitt with a semiautomatic handgun. The pair took all the money Nesbitt had on his person, then drove him to an automated teller machine (ATM). While there, they were caught on camera forcing him to withdraw more money. After getting the additional money, they drove Nesbitt to an isolated location and killed him by shooting him eight times.

Atkins was convicted of abduction, armed robbery, and capital murder and sentenced to death. Both Jones and Atkins testified in the guilt phase of the Atkins' trial. They each confirmed the incident, but differed on who actually shot and killed Nesbitt.

Jones, whose testimony was more coherent and credible to the jury than the mentally retarded Atkins, led the jury to convict Atkins and blame him for the shooting.

During the penalty phase of the trial, the state introduced victim-impact evidence and proved two aggravating circumstances to push for the death penalty. The state proved to the jury that Atkins posed a future danger because of his prior felony convictions. In addition, the state called four victims of earlier robberies and assaults to testify against Atkins. Also, the state proved the “vileness of the offense” by pointing to the pictures of the deceased's body and the autopsy report, which were part of the initial trial record.

Court Connotations

A forensic psychologist is an expert who gives his psychological opinion in the courts to assist with fact finding in a criminal or civil case. A forensic psychologist must have a doctorate degree in psychology. After completing his doctorate, a psychologist will usually work under an experienced forensic psychologist to gain further expertise before being called on as an expert witness.

Dr. Evan Nelson, a forensic psychologist, testified in the penalty phase that based on his evaluation of Atkins, he was “mildly mentally retarded.” He testified that after reviewing Atkins school and court records plus administering a standard intelligence test, Atkins had a full scale IQ of 59 and was functioning somewhere between the ages of 9 and 12.

Based on this testimony, the jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court used a misleading verdict form. At the second sentencing hearing, the same forensic psychologist testified, but additional testimony was added for the state by expert witness Dr. Stanton Samenow, who said that Atkins was not mentally retarded, but was of “average intelligence, at least” and diagnosable as having antisocial personality disorder. The jury again sentenced Atkins to death.

After the second sentencing hearing, the Virginia Supreme Court affirmed the imposition of the death penalty. 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.”

The Virginia Supreme Court rejected his appeal, saying it was “not willing to commute Atkins' sentence of death to life imprisonment merely because of his IQ score.” Two Virginia justices dissented, saying that 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.” In their dissent, they said “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.”

While in a 1989 case, Penry v. Lynaugh, the United States Supreme Court did rule that people with mental retardation could be put to death, many states have since changed their laws on this issue. The United States Supreme Court decided to hear Atkins' appeal in 2002 because of the dramatic shift in the position of state legislatures during the previous 13 years.

Just the Facts

Based on the 1910 landmark case, Weems v. United States, the Eighth Amendment prohibits the infliction of excessive bail, excessive fines, and unusual punishments. In that case the court ruled that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. The court said, “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.”

Over the years, the United States Supreme Court has held that judging whether punishment is excessive is not based on standards that prevailed when the Bill of Rights was adopted, but rather by those that currently prevail. Therefore, in determining whether punishments are “cruel and unusual” the Supreme Court looks to current-day standards set by recent legislatures.

In 1989, when the Supreme Court last looked at the issue of sentencing mentally retarded people to death, most states did allow that. In 2002, when the Supreme Court decided to revisit the issue, the political winds had changed and state legislatures were deciding against the death penalty in cases involving people with mental retardation. So the justices overturned Penry and ruled in favor of Atkins, reversed the Virginia Supreme Court, and remanded the case back to the lower courts for further decision.

The 6 to 3 ruling that the death penalty for Atkins was “cruel and unusual punishment,” was written by Justice John Paul Stevens, who was joined by Justices Breyer, Ginsburg, Kennedy, O'Connor, and Souter. Chief Justice Rehnquist wrote a dissenting opinion and was joined by Justices Scalia and Thomas. Scalia also wrote a dissenting opinion and was joined by Rehnquist and Thomas. In writing for the Court, Stevens said:

  • “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, (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.”

In writing his dissent, Chief Justice Rehnquist said:

Living Laws

People who are found to be mentally retarded cannot be sentenced to death as of 2002, after the ban imposed by the United States Supreme Court in Atkins v. Virginia.

  • “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 … Believing this view to be seriously mistaken, I dissent.”

Justice Scalia added in his dissent, “This newest innovation promises to be more effective than any of the others in turning the process of capital trial into a game.” How this game will be played out will be seen in future death penalty cases that find their way to the Supreme Court.

book cover

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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