In the 2002 case of Atkins v. Virginia, the U.S. Supreme Court ruled that executing the mentally retarded is unconstitutional. Anti-death penalty advocates undoubtedly look at this case as a landmark decision and yet another step in abolishing the death penalty. However, the Court left open the interpretation of how the law views and decides on who is mentally retarded and who is not. Today, two years after Atkins v. Virginia, the fate of many defendants who may be classified as mentally retarded--including even Daryl Atkins--is still unknown. This lack of a consistent legal definition of mental retardation has muddied the issue of executing those with lower intellects--rather than providing clarification.
Standardized I.Q. tests have long been a measure of intellect and such testing has now become a vigorous point of contention for both the prosecution and the defense in cases in which mental capacity is questioned. Of the 350 people executed in the last 14 years, 112 were determined to have I.Q.'s below 70. The benchmark of 70 is important because any score below that number is generally considered to fall into the mentally retarded category. However, this is more of a guideline than a rule. Often, when a defendant scores slightly below 70, the prosecution will argue that the test is inaccurate (or the defendant intentionally did not score well). Likewise, in cases where the defendant scores at or slightly above 70, the defense may similarly question the test's validity. In many capital cases, I.Q. tests are often the focal point in the trial.
Sometimes, however, I.Q. tests are not used to determine mental capacity; many psychologists employ their own methods to establish whether or not a defendant is mentally retarded. For example, in Atkins v. Virginia, Dr. Stanton Samenow, a clinical psychologist for the prosecution, stated that Daryl Atkins was "of average intelligence, at least," although he conceded that Atkins' I.Q. score was low. Dr. Samenow based his opinion on, in part, the fact that Atkins used words such as "orchestra," "decimal" and "parable" during Dr. Samenow's examination. Although the validity of such a method was questioned by the defense, the fact remains that Dr. Samenow's testimony was entered into the official case record. Other capital cases have had similar testimony from experts that expose the inconsistent methods in legally defining mental retardation.
Beyond expert analysis and I.Q. tests, the questions of who determines mental retardation and when that determination should occur have also become hot issues. In most states, a judge will hold a pre-trial hearing to determine a defendant's mental state; experts will testify in this hearing and the judge has the final say in whether or not a defendant is mentally retarded. However, some states will leave the decision up to the jury--either during the trial or after it. In Virginia, for example, the question of mental retardation is left until the sentencing phase of the trial. To further complicate the issue, the judges in many states instruct juries to use a standard called "preponderance of evidence," which means the jury needs only to decide that it is more likely than not that the defendant is mentally retarded. In other states, defendants must prove they are mentally retarded with steadfast evidence. Undoubtedly, this disconnect between states and standards is causing great difficulty in applying the ruling from Atkins v. Virginia.
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