Does Atkins Make a Difference in Non-Capital Cases? Should It?

I. AN OVERVIEWThe holding in Atkins v. Virginia1 is clear. The execution of mentally retarded defendants, those people with intellectual disabilities, is unconstitutional. One other feature of the Atkins decision is also certain, the reason the Eighth Amendment is violated with the use of the death penalty with such convicted defendants. That is because defendants with intellectual disabilities are to be viewed as less culpable than other defendants.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 leam from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. 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. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.2In this Article, I take a look at what-if any-impact the Atkins rationale and its holding have had in non-capital cases. I examine three areas: confessions (both voluntariness determinations and understanding of Miranda warnings), the ability of those with intellectual disabilities to assist their lawyers in making plea decisions or in creating a defense to criminal prosecutions, and sentencing. These three areas are of genuine significance because they focus on an accused's understanding of the process and also the degree of culpability for the offense.Let us begin with some thoughts regarding a few of the key underlying matters here. While the Atkins majority opinion does not waver on its basic holding and rationale, more than a dozen years later the answers to a number of important questions coming from the decision remain in doubt. As several articles in this symposium issue show, we really do not know which capital defendants are to be seen as sufficiently intellectually deficient to be covered by the Atkins ruling, what procedures are to be used in making that determination, and which standards must be applied. More to the point for my purpose here, there is an awful lot of basic information out there that is, at best, uncertain.As two contributors to our symposium have laid out, the Atkins Court used a three-prong clinical definition of mental retardation:The first prong of the definition is that an individual must exhibit significantly subaverage intellectual functioning. The second prong requires that the individual experience significant limitations in adaptive functioning, which is measured by categories that relate to everyday living experiences in a typical (i.e., non-institutional) community environment. The third prong requires that these limitations must have manifested before the person reached the age of eighteen.3This definition is based on those given by the American Association on Intellectual and Developmental Disabilities-formerly the American Association on Mental Retardation-and by the American Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders.4 Numerous other formal or "working" definitions, however, surfaced.5 Moreover, the procedures used to apply the definitions varied greatly, leaving the Supreme Court to finally step in this past year to attempt to sort through at least the process to be used to identify those who are intellectually disabled.The defendant in Hall v. Florida6 was convicted in 1981 of a 1978 murder and sentenced to death.7 On a later appeal in 1999, the Florida Supreme Court wrote that "there is no doubt that the Defendant has serious mental difficulties, is probably somewhat retarded, and certainly has learning difficulties and a speech impediment____"8Relying on language in Atkins that indicated IQ scores under "approximately 70" usually indicate retardation,9 the Florida legislature passed a law establishing a firm mle that lawyers for defendants claiming to be mentally retarded had to show an IQ of 70 or below for their clients. …