Amicus Curiae Brief — Atkins v. Virginia

FILED

(4) |

eet JAN 10 2002 |

No. 00-8452 !

ee i

CLERE

IN THE :

Supreme Court of the United States

DARYL RENARD ATKINS,

Petitioner,

vs.

COMMONWEALTH OF VIRGINIA,

Respondent.

On Writ of Certiorari to the Supreme Court of Virginia

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

BEST AVAILABLE COPYE

QUESTION PRESENTED

Should substantial portions of Penry v. Lynaugh, 492 U.S.

302 (1989) and Stanford v. Kentucky, 492 U.S. 361 (1989) be

overruled in order to create a constitutional categorical exemp-

tion from capital punishment for mental retardation?

(i)

TABLE OF CONTENTS

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i chevacotchcescecescecccesosecs iv

PIED occosceccccacccececctocese: l

Summmmary OF Tacts GRE COGS... wc ccc cece cccccees 2

Summary of argument peSedadeenssseeddenccoccecves 4

DEE ccabueeseaveccactesticccecoscceecescess 7

I

The Court should not unsettle its capital punishment

jurisprudence at this late stage ..... 6... 6... c cece ee 7

ED cogeenducdbbcecessaceceesenance 7

Mb MEE oe0seccdccccecdedcescceceuseeses 12

PD ceueGévuceccccncececnceceess 12

Pi SED SoGbGedecnrecoscecoceesceeue 17

i ED ccibacccecceneceecescnseses 18

BED wedncccccccccescucccocecns 19

Th MED nadncececsecccececescecocecns 20

I

In the event that a categorical exemption for mental

retardation is created, the rules and procedures

governing that determination should be left to

DE i cee vecabaguececdneuecceseseeuesceecs 23

iv

TABLE OF AUTHORITIES

Cases

Addington v. Texas, 441 U. S. 418, 60 L. Ed. 2d 323,

Ses Gs SOE do sdudtacesnduesebauseaneue 25

Argersinger v. f.amlin, 407 U. S. 25, 32 L. Ed. 2d 530,

PGs SE OED 6c ce wedcduna@ecenactusccstee 11

Atkins v. Commonwealth, 510 S. E. 2d 445

Atkins v. Commonwealth, 534 S. E. 2d 312 (Va. 2000) ... 3

Blystone v. Pennsylvania, 494 U. S. 299, 108 L. Ed. 2d 255,

SO ae CEE 6ndeenddscdkentedscwinedsds 11

Boyde v. California, 494 U. S. 370, 108 L. Ed. 2d 316,

Seas Gs SUED sees snccctenseddsondésoexs 11

Carter v. Illinois, 329 U. S. 173, 91 L. Ed. 172,

Ey Os Ge ED 6 Shncévuddsdcasensinchiccede 14

Coker v. Georgia, 433 U. S. 584, 53 L. Ed. 2d 982,

Oe es GN EE kbuinccncientacéakosedeusaes 13

Dickerson v. United States, 530 U. S. 428, 147 L. Ed. 2d 405,

re ee pre 7

Dusky v. United States, 362 U. S. 402, 4 L. Ed. 2d 824,

Pa Gk CED wadde cGenuebedntinnansiedcens 20

Eddings v. Oklahoma, 455 U. S. 104, 71 L. Ed. 2d 1,

a ee ED cence Kedaeendnséncasesacces 19

Enmund v. Florida, 458 U. S. 782, 73 L. Ed. 2d 1140,

rae Gh SPE a 6bensccacsabdcbocdetssés 14

Ford v. Wainwright, 477 U. S. 399, 91 L. Ed. 2d 335,

Seah Gh AED een cccscnceeaes 13, 20, 26, 27

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

DL nD bedtedcoessnnneakseeeeeeeses 7

Graham v. Collins, 506 U. S. 461, 122 L. Ed. 2d 260,

Se EE noceceuceseetonoensees 9, 12, 20

Harris v. Alabama, 513 U. S. 504, 130 L. Ed. 2d 1004,

Se SEE oecnccancochedeneesesecess 25

Hitchcock v. Dugger, 481 U. S. 393, 95 L. Ed. 2d 347,

et ee GEE covecancedesusceseseaunsees 24

In re Ramon M., 22 Cal. 3d 419, 149 Cal. Rptr. 387,

PPLE cededecdsenesetstececeteese 18

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

Ss ae, SEED socedenesccdecceeveces 9, 23, 24

Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

Fe a es SEO ED CS Ket cncetesceseseesdeesdéees 27

McCleskey v. Kemp, 481 U. S. 279, 95 L. Ed. 2d 262,

ey EA, SEED 0 SéG66eecncboeue ie ceditee 24

New State Ice Co. v. Liebmann, 285 U. S. 262,

eis ey Se Se es OE ED boc SWecccoscnces 14

Payne v. Tennessee, 501 U. S. 808, 115 L. Ed. 2d 720,

Ff &. | TTT TTT TT TTT Te 11

Penry v. Johnson, 532 U. S. 782, 150 L. Ed. 2d 9,

ee eS ae 21

Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,

2) eB OT Tree Passim

Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.

833, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992) ... 22,23

Richmond v. Lewis, 506 U. S. 40, 121 L. Ed. 2d 411,

BED B. Ca. SAB CIGTA) 2. wn cccccvcccccccaccceces 8,11

Roberts v. Louisiana, 428 U. S. 325, 49 L. Ed. 2d 974,

Se A NEED vunevoccsedednacdesieseeeds y

Saffle v. Parks, 494 U. S. 484, 108 L. Ed. 2d 415,

Sy CP ED a cocdutosdenesbeossvededeus 1]

Solem v. Helm, 463 U. S. 277, 77 L. Ed. 2d 637,

2k 8 5 oe ere 13

Spaziano v. Florida, 468 U. S. 447, 82 L. Ed. 2d 340,

tS +ccckniesaeedbsuuekeoes 14, 25

Stanford v. Kentucky, 492 U. S. 361, 106 L. Ed. 2d 306,

109 S. Ct. 2969 (1989) ............ 7, 13, 14, 16, 17, 23

Sumner v. Shuman, 483 U. S. 66, 97 L. Ed. 2d 56,

ye Pe ne re 15, 22

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

SE ccc cca ce ckdedentacueneents 17

Trop v. Dulles, 356 U. S. 86, 2 L. Ed. 2d 630,

EE on on cuketscdetbbnan cdbubesa 24

Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d 511,

I i a Si aad 11

Woodson v. North Carolina, 428 U. S. 280,

49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) ....... 9, 22, 23

United States Statutes

eh ED cccetedccdsecedvcnesossinr 16, 24

28 U.S. C. §2244(b)(2MA) ... 2. eee eee eee eee ees 17

ee Gee ED endccccvescccesceoese’ 17

vii

State Statutes -

cbc beeseciss cvdccccccescenses 24

Colo. Rev. Stat. § 169-402(2) ..........c.e cece enone 24

Se EE EE REED Se ceccccccccccncesesces« 24

Md. Ann. Code, Art. 27, §412(f)(3) ............-065. 24

Treatises

5 W. LaFave, J. Israel, & N. King, Criminal Procedure

| POPPI TTT TT eTTTTTTT TTT Te 8, 10

Miscellaneous

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders

(4th ed. 2000, text revision) ................ 18, 20, 22

Bilionis, Legitimating Death, 91 Mich. L. Rev. 1643

DD ccccnesdevsasncanevessebedessuncedene 8,11

Garcia & Steele, Mentally Retarded Offenders in the

Criminal Justice System and Mental Retardation

Services in Florida: Philosophical Placement and

Treatment Issues, 41 Ark. L. Rev. 809 (1988) ..... 19, 20

K. Scheidegger, Rethinking Habeas Corpus 36 (1989),

reprinted in Habeas Corpus Issues: Hearings Before

the Subcomm. on Civil and Constitutional Rights of

the House Comm. on the Judiciary, 102d Cong.,

Se PED «cccdeceneesenteseeeecsecens 10

Kozinski & Gallagher, Death: The Ultimate Run-On

Sentence, 46 Case W. Res. L. Rev. 1 (1995) ......... 10

Kozinski & Gallagher, For an Honest Death Penalty,

OE, VW. Hee, Be GB, SEED ccccccccsccccesecccccces 8

viii

McAllister, The Problem of Implementing a Constitutional

System of Capital Punishment, 43 Kan. L. Rev. 1039

SIGE cde Sv eccueveveseteadeccnenseneceenese de 10

Scheidegger, Capital Punishment in 1987: The Puzzle

Nears Completion, 15 West. St. L. Rev. 95 (1987) .... 15

Steiker & Steiker, Sober Second Thoughts:

Reflections on Two Decades of Constitutional

Regulation of Capital Punishment, 109 Harv. L. Rev. 355

SE b6b.ncdddsacdvavestdhesdeceese 7,9, 10, 11, 12

IN THE

Supreme Court of the United States

DARYL RENARD ATKINS,

Petitioner,

vs.

COMMONWEALTH OF VIRGINIA,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

Death penalty law has undergone a long and painful

evolution from its modern origins to its current comparatively

settled state. Engrafting a per se exemption from capital

punishment for mental retardation on to the Eighth Amendment

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

would reopen many old wounds inflicted during the develop-

ment of death penalty jurisprudence. The current system

already protects those for whom a death sentence would be

clearly unjust, and, to the extent any further protection is

needed, legislation specifying the standards and procedures in

advance is a far preferable method for the law to develop in this

area. A judicially crafted categorical exemption for capital

punishment for those who successfully claim that they are

mentally retarded is contrary to the interests of victims and

society that the CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On August 16, 1996, the defendant Daryl Atkins and

William Jones spent most of the day drinking and smoking

marijuana at the house Atkins shared with this father. See

Atkins v. Commonwealth, 510 S. E. 2d 445, 449 (Va. 1999)

(Atkins ]). Later that evening, after Atkins borrowed a gun

from a friend, he and Jones went to the convenience store to

buy some more beer. Lacking money, Atkins started panhan-

dling. See ibid. At around 11:30 p.m., Eric Nesbitt went to the |

store. When Nesbitt prepared to leave the parking lot in his

truck, Atkins hijacked the truck at gunpoint. Jones drove,

Atkins was a passenger, and Nesbitt was kept hostage. See

ibid. They stole $60 from Nesbitt’s wallet, and after discover-

ing Nesbitt’s bank card, they proceeded to the branch of a local

bank where Atkins forced Nesbitt to withdraw $200 from the

drive-through ATM. Jbid.

Jones then drove the truck to a local school where he and

the defendant discussed what to do with Nesbitt. Jbid. Jones

urged that they just tie Nesbitt up and leave him. Instead, at

Atkins’ suggestion they drove to a secluded area that he knew.

Atkins ordered Nesbitt out of the truck and shot Nesbitt to

death. /d., at 449-450. The autopsy showed that Nesbitt had

eight different bullet wounds. /d., at 450.

The two were subsequently arrested. Jones testified against

Atkins, and Atkins was convicted of capital murder and

sentenced to death. /d., at 451, 453. The Virginia Supreme

Court affirmed the conviction, see id., at 457, but reversed the

sentence because of an improper sentencing verdict form. See

id., at 456-457, n. 7. At retrial, Dr. Evan Nelson, a forensic

psychologist, testified that the defendant’s full scale 1Q of 59

meant that he was mildly mentally retarded. Atkins v. Com-

monwealth, 534 S. E. 2d 312, 319 (2000) (Atkins 1). This

diagnosis was also based upon the defendant’s inability to

function independently as compared to the average person. See

ibid. Dr. Nelson also “admitted that Atkins’ capacity to

appreciate the criminal nature of his conduct was impaired, but

not destroyed; that Atkins understood that it was wrong to shoot

Nesbitt; and that Atkins meets the general criteria for the

diagnosis of an antisocial personality disorder.” /bid.

The jury also heard the testimony of the state’s witness, Dr.

Stanton Samenow, a forensic clinical psychologist. /bid. He

“ ‘sharply disagreed’ ” with Dr. Nelson’s diagnosis that the

defendant was mildly retarded. He instead concluded that

Atkins had at least average intelligence. This conclusion was

based upon “Atkins’ vocabulary, knowledge of current events,

and other factors from the Wechsler Memory Scale, Wechsler

Adult Intelligence Scale, and Thematic Appreciation Test.”

Ibid. As one example, Atkins knew that John F. Kennedy was

president in 1961. He also knew who was the current governor

of Virginia, as well as the last two presidents. /bid.

The defendant was again sentenced to death. See id., at

314. The Virginia Supreme Court affirmed. See ibid. The

opinion analyzed Atkins’ alleged retardation under its propor-

tionality review, where it held that the death sentence was not

rendered disproportionate due to the defendant’s intelligence.

See id., at 321. This Court granted certiorari on September 25,

2001.

SUMMARY OF ARGUMENT

At this late stage, this Court should not upset its capital

punishment jurisprudence. From its fractured origins in

Furman v. Georgia, Eighth Amendment death penalty law has

gone through a long and painful development. It has now

matured into a comparatively stable body of law. Accepting the

defendant’s arguments would reopen many of the wounds

inflicted since Furman.

One of the foremost costs of Furman’s legacy is complex-

ity. Death penalty law’s extraordinary complexity makes it

difficult for courts and legislatures to anticipate changes in the

law, and hinders the recruitment of attorneys to represent

capital defendants. Developing such a complex body of law

necessarily led to many reversals as states failed to anticipate

changes in doctrine. Burdensome retrials, frustrated deserts,

and additional murders are all a legacy of the law since

Furman. The frequent reversal of sentences due to a failure to

foresee unforeseeable changes in the law also injected an

arbitrariness into the system that Furman was intended to

minimize.

Federalism has paid a heavy price for establishing Furman’s

legacy. Massive federal regulation of the apex of state criminal

law wounds federalism. Federalism is further harmed as states

understandably overreact to the Eighth Amendment cases, such

as declining to regulate the admissibility of mitigating evidence.

Fortunately, most of these costs have now been paid, as

death penalty law is now stable. Legislatures and courts now

know how to establish a capital punishment system that will

withstand constitutional scrutiny. Even the tension between the

narrowing and the individualized sentencing lines may be

abating.

Creating a categorical exemption for mental retardation

carries costs similar to those associated with the aftermath of

Furman. Foremost is the damage to precedent. Substantial

portions of Penry v. Lynaugh and Stanford v. Kentucky would

have to be overruled in order to fashion the exemption. There

is nO new national consensus against applying capital punish-

ment to the mentally retarded. Under current law a consensus

can only be found when an overwhelming majority of legisla-

tures condemn a particular punishment or procedure. Since a

majority of states with capital punishment do not exempt the

mentally retarded, there can be no new consensus without

overruling Penry J and Stanford.

Accepting the defendant’s argument would also cause

considerable disruption to death penalty systems. Under

Penry I, any exemption for retardation would be fully retroac-

tive on collateral review. Courts will therefore be inundated

with retardation claims.

Finally, the categorical exemption would make death

penalty law more complex and arbitrary. Instead of being

treated like any other mitigating evidence, mental retardation

claims will now require much more procedural complexity: a

new standard of proof, an additional hearing, and new proce-

dures to govern the hearing.

Arbitrariness will increase in two ways. First, the inevitable

reversals in states that failed to anticipate this change repeats

the arbitrariness that accompanied the developments since

Furman. Additionally, setting the standard for determining

something as imprecise as mental retardation necessarily

involves drawing an arbitrary line between those who are and

are not exempt on the basis of their intelligence.

A judicially created exemption from capital punishment

gives little additional protection to those for whom the death

penalty would be clearly unjust. The insanity defense, compe-

tency to stand trial, and the prohibition against executing the

insane all protect the most retarded defendants from capital

punishment. Further protection is provided through the

defendant’s right to present evidence of mental retardation as

mitigating evidence and to have the jury instructed to consider

it in mitigation. Only those defendants who could not other-

wise avoid a death sentence would benefit from overturning

Penry land Stanford. Treating all mentally retarded defendants

as one undifferentiated mass also contradicts the principle of

individualized sentencing.

In the event that the defendant’s claim is accepted, then the

rules and procedures for determining mental retardation should

be governed by due process rather than the Eighth Amendment.

If the Eighth Amendment governs, then any rule favorable to

the prosecution that varies from the norm will be attacked under

the “evolving standards of decency” test. Since states can

freely depart from the majority rule to favor the defense, Eighth

Amendment scrutiny will lead state rules to a lowest common

denominator in favor of the defendant. What must be avoided

is invoking the Eighth Amendment to force a procedure on the

states, which have not written any rules on the subject, or, even

worse, to craft a judicially created set of procedures and use

them to attack the very statutes that created the “consensus” for

the underlying rule in the first place.

This threat is all too real. State statutes used as examples of

the evolving standards of decency in one case were successfully

attacked in later cases as violating some newer standard. Since

there is considerable variation among current state procedures

governing retardation exemptions, there will be many opportu-

nities for Eighth Amendment litigation.

Due process allows the state experimentation that is the

hallmark of our federalism. It is also how this Court treats

procedures governing the prohibition against executing the

insane. The best way to preserve federalism and keep courts

from being inundated with even more Eighth Amendment

claims is to adopt the deferential due process standard.

ARGUMENT

I. The Court should not unsettle its capital punishment

jurisprudence at this late stage.

From its fractured origins in Furman v. Georgia, 408 U. S.

238 (1972), this Court’s capital punishment jurisprudence has

matured into a comparatively stable body of law. Although

tensions remain, legislatures now have a good idea how to write

constitutional death penalty statutes, and courts know how to

apply them.

Accepting the defendant’s arguments would needlessly

upset this system. In order to categorically exempt from capital

punishment any person who tests as mentally retarded, the

Court must overrule important parts of Penry v. Lynaugh, 492

U. S. 302 (1989) and Stanford v. Kentucky, 492 U. S. 361

(1989). Nothing in this case warrants such a disruption of the

important and complex body of law surrounding capital

punishment. Defendant’s desired result will provide little

additional aid to those for whom the death penalty is clearly

unjust, but it would entail considerable cost. Since there is no

“special justification” for departing from these precedents, cf.

Dickerson v. United States, 530 U.S. 428, 443 (2000) (internal

quotation marks omitted), Penry and Stanford should not be

overruled.

A. The Legacy.

Few areas of constitutional law have been as contested or as

complex as modern capital punishment jurisprudence. Starting

with Furman v. Georgia, supra, the longest and one of the most

divided opinions in the United States Reports, see Steiker &

Steiker, Sober Second Thoughts: Reflections on Two Decades

of Constitutional Regulation of Capital Punishment, 109

Harv. L. Rev. 355, 362 (1995), this Court’s death penalty

opinions have followed a labyrinthine path to the current,

comparatively settled body of law. These opinions have created

a unique set of procedures for capital cases that “are extensive

and complex.” 5 W. LaFave, J. Israel, & N. King, Criminal

Procedure § 26.1(b), p. 698 (2d ed. 1999). While these proce-

dures may now strike an appropriate balance between Eighth

Amendment interests and respect for state criminal justice

systems, see Bilionis, Legitimating Death, 91 Mich. L. Rev.

1643, 1680 (1993), this equilibrium came at considerable cost.

In addition to its complexity, the torturous path from Furman

has burdened society with the needless retrial or release of some

of our worst criminals, burdened federalism in a crucial area,

and at times has promoted the very arbitrariness condemned by

Furman. Any major expansion of the death penalty defendant’s

Eighth Amendment rights would reopen this can of worms. At

this stage, there is no need to reinflict the wounds of the last 30

years.

A substantial cost of developing modern death penalty law

is the difficulty of figuring it out and complying with it. The

law’s complexity is a weapon for capital defendants to frustrate

their deserts. See Richmond v. Lewis, 506 U. S. 40, 54 (1992)

(Scalia, J., dissenting). It also harms capital defendants by

restricting the pool of available lawyers. “[T]he jurisprudence

of death is so complex, so esoteric, so harrowing, this is one

area where there aren’t nearly enough lawyers willing and able

to handle all the current cases.” Kozinski & Gallagher, For an

Honest Death Penalty, N. Y. Times, Mar. 8, 1995, p. A21,

col. 1.

Developing such extensive regulations carries other costs as

well. Courts and legislatures have had considerable difficulty

in applying these decisions and in anticipating developments in

death penalty law. An obvious example is found in the initial

reaction to Furman. Furman provided very little guidance to

state legislatures on how to write capital punishment statutes

that complied with the Eighth Amendment. “But identifying

the ‘concerns’ of Furman is a daunting task .... The opinions

presented a staggering array of arguments for and against the

constitutionality of the death penalty and offered little means,

aside from shrewd political prediction of determining which

arguments would dominate in the decision of any future cases.”

Steiker & Steiker, supra, 109 Harv. L. Rev., at 362. “Predict-

ably, the variety of opinions supporting the judgment in

Furman engendered confusion as to what was required in order

to impose the death penalty in accord with the Eighth Amend-

ment.” Lockett v. Ohio, 438 U. S. 586, 599 (1978) (plurality).

Responding to the concern with arbitrariness that ran through

the Furman opinions, see Graham v. Collins, 506 U.S. 461,

483 (1993) (Thomas, J., concurring) (summarizing opinions),

several states enacted mandatory death penalty statutes in order

to foreclose arbitrariness. See Lockett, supra, at 599-600.

Four years after Furman, this Court decided that these states

were wrong, invalidating their mandatory statutes and striking

down numerous death sentences. See Woodson v. North

Carolina, 428 U.S. 280, 305 (1976); Roberts v. Louisiana, 428

U. S. 325, 336 (1976). This result was itself arbitrary. Given

no real guidance, several state legislatures simply guessed

wrong as to what this Court would require. As a result,

numerous deserving defendants avoided their punishment, as all

existing death sentences in these states were wiped out for the

second time in four years. Each additional layer of complexity

added to capital jurisprudence carries the risk of similar

arbitrariness as defendants’ punishments are determined by the

ability of courts and legislatures to predict the next twist in this

winding road.

Unfortunately, there are many other examples of the

disruption caused by the development of the Eighth Amend-

ment death penalty jurisprudence. The Lockett plurality sought

to give “the clearest guidance that the Court can provide”

through its holding. 438 U. S., at 602. Few promises from this

Court have been less fulfilled. Its premise, that the sentencer in

capital cases must not be prevented “from giving independent

mitigating weight to aspects of the defendant’s character and

record and to circumstances of the offense,” id., at 605, opened

a Pandora’s box for the legislatures, courts, and prosecutors left

to implement it.

10

The explosive growth of Lockett’s individualized sentenc-

ing branch of the post-Furman cases is well documented. See,

e.g., McAllister, The Problem of Implementing a Constitutional

System of Capital Punishment, 43 Kan. L. Rev. 1039, 1057-

1060 (1995) (describing cases); id., at 1065 (“the virtually

limitless expansion of the individualized sentencing principle”).

Lockett, and this Court’s numerous interpretations of its

principles, see, e.g., 5 W. LaFave, J. Israel, & N. King, supra,

§ 26.1(b), at 700, n. 17, led to the reversal of many death

sentences where legislatures and courts failed to anticipate these

sudden shifts in the Court’s death penalty law. Since the

Lockett “Court did not attempt to define the range of mitigating

evidence encompassed by the individualization requirement,”

see Steiker & Steiker, supra, 109 Harv. L. Rev., at 390, years

of “intricate litigation over states’ fulfillment” of it was

inevitable. See ibid. The result was a morass of confusion,

reversals, and retrials. CJLF’s survey of habeas reversals of

state capital cases in the Eleventh Circuit found Lockett to be

the single largest source of the reversals. See K. Scheidegger,

Rethinking Habeas Corpus 36 (1989), reprinted in Habeas

Corpus Issues: Hearings Before the Subcomm. on Civil and

Constitutional Rights of the House Comm. on the Judiciary,

102d Cong., Ist Sess. 212, 251 (1991).

These and other reversals led to numerous expensive

retrials. Many capital defendants subsequently escaped their

sentence, whether from unsuccessful attempts at retrial or the

wholesale invalidation of state death penalty schemes. In

addition to frustrating the will of many juries, this also cost

innocent people their lives. “The death penalty does, however,

undeniably serve as a deterrent in one respect: once the

sentence is carried out, the recidivism is quite low. And, the

simple fact is, people sentenced to life in prison without parole,

or even to a death sentence, do, occasionally, get out and do it

again.” Kozinski & Gallagher, Death: The Ultimate Run-On

Sentence, 46 Case W. Res. L. Rev. 1, 25 (1995).

11

Federalism also paid a heavy price for establishing

Furman’s legacy. Criminal law is primarily a state matter.

See, e.g., Payne v. Tennessee, 501 U. S. 808, 824 (1991);

Argersinger v. Hamlin, 407 U.S. 25, 38 (1972). By addressing

the most serious crimes with the most serious penalty, capital

punishment sits at the apex of a state’s criminal justice system.

While the Eighth Amendment has some hold over this most

important part of criminal justice, see Payne, 501 U. S., at 824,

the detailed set of regulations erected by this Court since

Furman substantially limits legitimate state sovereignty.

Besides the extensive regulations mandated by this Court,

federalism is further impaired by the state legislatures’ under-

standable overreaction to these decisions. Thus, “the Court’s

emerging doctrine has motivated every death penalty jurisdic-

tion to permit the introduction and consideration of ‘any’

mitigating factor,” see Steiker & Steiker, supra, 109

Harv. L. Rev., at 391, even though the Eighth Amendment does

not actually require this. See, e.g., Walton v. Arizona, 497 U.S.

639, 652 (1990) (“there is no . . . constitutional requirement of

. unfettered sentencing discretion in the jury, and States are free

to structure and shape consideration of mitigating evidence in

an effort to achieve a more rational and equitable administration

of the death penalty”’) (internal quotation marks omitted); Boyde

v. California, 494 U.S. 370, 377 (1990). Having been burned

many times before, states are afraid to conduct the experimenta-

tion in this field that forms the heart of federalism.

Many of these costs have now been paid. The uncertainty

and instability that plagued much of the post-Furman era is

nearly gone. In its place is a mature, stable body of law. With

regard to its narrowing requirement, “(t]he relevant Eighth

Amendment law is well-defined.” Richmond v. Lewis, 506

U. S. 40, 46 (1992). Similarly, for the individualized sentenc-

ing requirement, cases like Boyde v. California, supra, Saffle v.

Parks, 494 U.S. 484 (1990), and Blystone v. Pennsylvania, 494

U. S. 299 (1990), have “brought a measure of formulaic

simplicity to this concern as well.” Bilionis, supra, 91

Mich. L. Rev., at 1653-1654. Since all the states now freely

12

admit mitigating evidence, “virtually all of the current litigation

concerning the individualization requirement is backward-

looking, gauging the constitutionality of statutory provisions

and state practices that are no longer in force.” Steiker &

Steiker, supra, 109 Harv. L. Rev., at 390. Even the famous

tension between these two linés may be abating. Justice

Thomas has sketched out a compromise position between these

competing requirements. See Graham, 506 U. S., at 498-499

(Thomas, J., concurring). Although it involves an admittedly

narrow reading of the Lockett-Eddings line, id., at 490, it is

consistent with the spirit of Furman.

The long road from Furman has reached a balance between

the need to insure that capital punishment is enforced both

rationally and equitably and the states’ legitimate interest in

enforcing the death penalty. This achievement has come at

considerable cost, and should not be disturbed without substan-

tial justification. As the next section demonstrates, accepting

the defendant’s arguments would cause such a disturbance.

B. The Cost.

Creating a constitutional categorical exemption from capital

punishment for mental retardation carries considerable costs.

It would invoive a disregard for precedent, a disruption of

capital sentencing schemes, the creation of additional complex-

ity, and the attendant arbitrariness that is all too similar to the

turmoil associated with the aftermath of Furman v. Georgia.

Any decision concerning the defendant’s request must take

these costs into account.

1. Precedent.

The clearest cost of a per se exemption from capital

punishment for mental retardation is the damage to precedent.

In Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry J), this Court

declined to create this categorical exemption from the death

penalty. Since only two states prohibited executing the

13

mentally retarded there was no national consensus that required

extending that ban to all other states. See id., at 334.

Penry I's analysis still hoids. It is true that more states now

bar the execution of the mentally retarded than when Penry /

was decided. But even the defendant’s claim that 18 states with

capital punishment and the federal government now bar the

execution of the retarded does not support a different result.

While it is possible to forge a new consensus under the

“evolving standards of decency” strand of Eighth Amendment

analysis, the defendant bears a “heavy burden” of establishing

a consensus against a practice. See Stanford v. Kentucky, 492

U. S. 361, 373 (1989).

The defendant has not met that burden. His requested

change instead is revolutionary, not evolutionary. Penry / and

other cases demonstrate that the consensus of other state

legislatures must be overwhelming before the few remaining

states are forced to conform. It noted that when this Court held

that the Eighth Amendment forbids executing the insane, no

state permitted that practice. See Penry J, 492 U. S., at 334;

Ford v. Wainwright, 477 U. S. 399, 408, n. 2 (1986). Stanford

reinforces the importance of proceeding cautiously when

evaluating a claim that national consensus against some

punishment has reached constitutional proportions. In deciding

that the Eighth Amendment did not bar executing someone who

was 16 or 17 when the crime was committed, this Court held

that 15 states with capital punishment forbidding this practice

did “not establish the degree of national consensus” to support

a finding of cruel and unusual punishment. Stanford, 492 U.S.,

at 371. As the Stanford Court noted, prior examples of striking

down a practice under the national coasensus theory had an

overwhelming majority of states opposed to the relevant

practice. The four examples given by the Stanford Court of an

appropriate national consensus had either no state applying the

relevant punishment, see Ford, 477 U. S., at 408 (insanity),

only one state applying it, see Coker v. Georgia, 433 U.S. 584,

595-596 (1977) (plurality) (rape of adult woman); Solem v.

14

Helm, 463 U. S. 277, 300 (1983) (life without possibility of

parole for minor offense), or eight states utilizing the punish-

\ ment, see Enmund v. Florida, 458 U. S. 782, 792 (1982) (death

for robbery in which accomplice kills). See Stanford, 492

U.S., at 371. Similarly, this Court has indicated that even if a

majority of states followed a practice, that practice was not

necessarily imposed on the other states under the Eighth

Amendment. See Spaziano v. Florida, 468 U. S. 447, 464

(1984).

Amicus suggests that any national consensus must be at

least as pervasive as in Enmund before it can be considered for

being enshrined in the Eighth Amendment. Although this

Court makes the final determination under the Eighth Amend-

ment, the judgments of state legislatures and courts will “weigh

heavily in the balance . . . ,” see Enmund, 458 U. S., at 797,

because there are no other appropriate indicators for this

amorphous standard. If “emerging national consensus” is to

mean something other than a byword for the Justices’ own

preferences, then the opinions of state legislatures must be

listened to as the best objective source available. However,

federalism and the integrity of state punishment systems both

counsel against the aggressive use of such evidence.

Ordinarily, the Constitution does not impose a uniform

approach by the states to any particular problem. Allowing a

state to deviate from the majority rule of the other states is a

hallmark of our federalism. Thus, “the Due Process Clause has

never been perverted so as to force upon the forty-eight States

a uniform code of criminal procedure.” Carter v. Illinois, 329

U. S. 173, 175 (1946). As Justice Brandeis’ famous dissent

noted, each individual state must be allowed to serve as “a

laboratory; and try novel social and economic experiments

without risk to the rest of the country.” New State Ice Co. v.

Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

Counting noses among the state legislatures and routinely

forbidding those practices which come a few votes short

threatens innovation by punishing states for varying from the

15

norm. Except for extraordinary circumstances like the reaction

to Furman, see Scheidegger, Capital Punishment in 1987: The

Puzzle Nears Completion, 15 West. St. L. Rev. 95, 107 (1987),

any finding by this Court that there is an emerging consensus

against a particular practice is likely to be irreversible. A state

wishing to reverse such a finding by forming a new consensus

will be in a bind, as any sentences imposed contrary to the

newly found consensus would be quickly struck down. Unless

a considerable number of states act in concert to reverse the

consensus, this Court’s decision to strike down a particular

practice is likely to stick.

This problem is compounded by the fact that the emerging

national consensus doctrine can only be used to strike down

sentences. States may freely vary from the consensus and

forbid a punishment or procedure favored by most states. The

reaction of some state legislatures to Penry / is one example.

While the Eighth Amendment may forbid a punishment, it will

not mandate states to act more harshly against offenders.

Therefore, an aggressive use of the national consensus doctrine

would lead to a rapid race to minimize punishments and impose

procedural restraints upon the states. While punishments could

be easily struck down, innovations favoring punishment would

be hard te introduce and previously struck-down punishments

would be almost impossible to rehabilitate. For example,

Nevada’s attempt to test Woodson’s limits by enacting a

mandatory death sentence for murder by a life-term inmate was

struck down in Sumner v. Shuman, 483 U. S. 66, 77-78 (1987).

Any attempt to restore this innovation would require numerous

states to act in concert. A state that wishes to act alone in

having a mandatory death sentence for repeat murderers will be

stymied in court. Such a system is thus not simply a burden to

federalism, but also threatens the entire capital punishment

system. Requiring an overwhelming consensus to invalidate a

practice places an important limit on a potentially dangerous

doctrine.

16

The defendant has not found this consensus. According to

his figures, only 18 of the 38 states with capital punishment

exempt the mentally retarded. See Brief for Petitioner 39.’

Even adding the federal government to the “anti” side does not

change the fact that a majority of the jurisdictions with capital

punishment do not categorically exempt the mentally retarded.

Even this addition is dubious. The federal standard for mental

retardation is “lacks the mental capacity to understand the death

penalty and why it was imposed on that person.” 18 U.S. C.

§ 3596(c). This is the Ford competency standard applied to

mental retardation. See Penry I, 492 U. S., at 333. Accepting

the defendant’s argument would require another standard.

Since the defendant cannot even muster a majority of the states

against his sentence, let alone a supermajority, his argument

fails under Penry and Stanford.

Implicitly recognizing the weakness of his position, the

defendant attempts to bolster his cause by invoking an argu-

ment previously rejected by this Court. His attempt to add the

12 states banning the death penalty to his total in order to find

a majority for a categorical exclusion, see Brief for Petitioner

39, contradicts Stanford. The Stanford Court specifically

rejected the relevance of counting the anti-death penalty states

in any consensus concerning the administration of capital

punishment. See 492 U. S., at 370, n. 2. Try as he might, the

defendant cannot properly characterize this rejection as dicta.

See Brief for Petitioner 39, n. 44. The difference between

Stanford and the present case is small, with 15 states opposing

executing juvenile offenders in Stanford and 18 opposed to

executing the retarded in the present case. Adding the states

opposed to the death penalty shrinks the difference between

Stanford and this case, since two fewer states now prohibit the

death penalty than when Stanford was decided. Compare

2. Virginia properly contests this number. See Brief for Respondent, Part

11 B. Even if the defendant’s count is accepted, he still has not forged

a consensus as defined in Stanford.

17

Stanford, 492 U. S., at 371, n. 2, with Brief for Petitioner 39.

Since the jurisdiction count in the two cases is essentially the

same, finding a consensus against executing the retarded in this

case would at the very least require overruling the analysis used

in Stanford.

2. Disruption.

Accepting the defendant’s claim would also cause consider-

able disruption to state capital punishment systems. Penry /

held that a categorical exemption from punishment for mental

retardation would apply retroactively on collateral review under

the first exception to Teague v. Lane, 489 U. S. 288 (1989),

even though it would be a new rule. See Penry /, 492 U. S., at

330. Unless this holding of Penry J were also overruled, every

death row inmate who presented at the penalty phase at least

some evidence that he was retarded would be entitled to a new

trial to determine whether he was now exempt from his death

sentence. This only begins the disruption. Because retardation

claims would apply retroactively on federal habeas, they would

also be exempt from limits on successive habeas petitions or on

default for failing to develop facts in state court. See 28

U. S. C. §§ 2244(b)(2)(A), 2254(e)(2)(A)(i). Therefore, any

death row inmate could try to raise a retardation claim on

federal habeas. Since a diagnosis of retardation is more

subjective and therefore more subject to falsification than a

diagnosis of the measles, the federal and state courts risk being

inundated by the claims of death row inmates utilizing a new

weapon in their arsenal of delay. As in the aftermath of

Furman, many well-deserved death sentences would be set

aside. See supra, at 10. Even in cases where the malingerers

are identified as such, the process will further delay the already

overdue process of capital punishment.

18

3. Complexity.

Any change from the current treatment of mental retardation

will complicate death penalty procedure. Retardation is now

treated like any other form of specialized mitigating evidence.

The defense presents its claim to the jury through expert

witnesses, and the prosecution attempts to rebut through cross-

examination and its own experts. See, e.g., J. A. 617-619.

Under the defendant’s new regime, courts and legislatures

would now have to craft a definition of mental retardation

separate from the legal definition of insanity. “Mental age” is

unacceptable since IQ scores usually stop rising after 16. See

Penry 1, 492 U.S., at 339. Since the average mental age is 16

years, eight months, any standard that defines the average

criminal defendant as a juvenile is unacceptable. See /n re

Ramon M., 22 Cal. 3d 419, 429, 584 P. 2d 524, 531 (1978).

Simple IQ is no better. As the defendant’s expert acknowl-

edged, a diagnosis of retardation cannot be based solely upon

IQ score, but also involves the individual’s inability to function

independently. See J. A. 618; accord American Psychiatric

Association, Diagnostic and Statistical Manual of Mental

Disorders 41 (4th ed. 2000, text revision) (“DSMIV-TR”). The

inability to function criterion involves “significant limitations

in adaptive functioning in at least two of the following skill

areas: communication, self-care, homeliving, social/inter-

personal skills, use of community resources, self-direction,

functional academic skills, work, leisure, health, and safety.”

DSMIV-TRat41. These skill assessments may be given much

greater weight than raw IQ scores in certain cases. See id., at

42. Thus, individuals with IQ scores above the retarded level

may be diagnosed as retarded while those with scores below the

retarded level can be classified as not retarded on the basis of

their adaptive behavior. See ibid. Any standard must incorpo-

rate this subjective determination into a legal standard. Cf. id.,

at xxxvii (recognition as a diagnostic category does not imply

that the condition meets legal criteria).

19

This new standard will be accompanied by a new finding.

At the very least, the sentencer must be given the option of

rendering a separate verdict of mentally retarded. Since the

issue of retardation will now be divorced from the defendant’s

overall culpability, a separate hearing will probably be neces-

sary in order to minimize juror confusion. Accompanying the

new standards and hearings will be many additional state

procedures. While these procedures should not be federalized

_ beyond basic due process, see part II, infra, the additional rules

and procedures will further complicate an already complex

body of law.

4. Arbitrariness.

Finally, judicially creating an exemption for mental

retardation claims injects arbitrariness into the death penalty.

The disruption associated with the change creates its own

arbitrariness. As in the aftermath of Furman, Lockett, or

Eddings v. Oklahoma, 455 U. S. 104 (1982), the death penalty

will not be rendered just on the basis of desert, but will also be

influenced by how well state legislatures and courts anticipate

the newest pronouncements from this Court. This is itself

arbitrary and was a significant cost of the development of the

law from Furman. See supra, at 9. Accepting the defendant’s

claim will reopen some of these wounds.

Determining who is mentally retarded also adds randomness

to capital punishment. False positives are a common problem

in mental retardation testing. Cultural bias is one likely culprit.

See Garcia & Steele, Mentally Retarded Offenders in the

Criminal Justice System and Mental Retardation Services in

Florida: Philosophical Placement and Treatment Issues, 41

Ark. L. Rev. 809, 815 (1988). This is a particular problem for

poor people and ethnic minorities. See ibid. Thus, while

“several studies show mentally retarded offenders are dispro-

portionately members of minority/ethnic groups . . . . [mJost

authors acknowledge the meaningfulness of this data must be

tempered by consideration of cultural biases in the tests often

20

used to assess intelligence and by the effects of the offender’s

environment and cultural milieu.” /d., at 817-818; see also

DSM IV-TR, supra, at 46 (“Care should be taken to ensure that

intellectual testing procedures reflect adequate attention to the

individual’s ethnic cultural or linguistic background.”).

There can be no greater affront to the principles of Furman

than having the death penalty determination influenced by race

or class. Although the bias in intelligence testing favors those

traditionally thought to be disadvantaged in capital punishment,

two wrongs do not make a right. The race-based arbitrariness

that motivated Furman, see Graham v. Collins, 506 U. S. 461,

479 (1993) (Thomas, J., concurring) should not be reintroduced

by this Court, even in an allegedly more benign form. While it

may be impossible to eliminate all arbitrariness in any human

endeavor, this Court should avoid injecting unnecessary

caprice, particularly with regard to class or race, into capital

sentencing.

C. The Bargain.

Establishing a new judicially created categorical exemption

from capital punishment for those who successfully claim that

they are mentally retarded is unnecessary. The current system

protects those for whom a death sentence would be clearly

unjust. The most retarded are unlikely to be competent to stand

trial. See Dusky v. United States, 362 U. S. 402 (1960) (per

curiam). The insanity defense provides further protection.

Ford v. Wainwright, 477 U. S. 399 (1986) also protects the

most retarded from the death penalty. See Penry /, 492 U.S.,

at 333. The rule proposed in the present case is not needed to

protect the most severely mentally retarded.

The defendant’s proposal is for the marginal cases—the

mildly or moderately retarded and, inevitably, the malingering.

These are people who are capable of understanding the wrong-

fulness of their conduct. See Penry I, 492 U. S., at 338

(O’Connor, J., concurring). Thus, as even the defendant’s

21

expert admitted, the defendant knew that it was wrong to shoot

Nesbitt. See J. A. 618.

Since a categorical retardation exemption would only

benefit those in the gray zone, it is unsurprising that the. cases

raising this claim typically involve defendants whose claim to

retardation is hotly disputed. See, e.g., J. A. 618-619; see

Supplement to Joint Appendix in McCarver v. North Carolina,

No. 00-8727, p. 160sa (cert. dismissed as improvidently

granted); Brief for Respondent in Penry v. Johnson, No. 00-

6677, pp. 6-7. These defendants already have the benefit of

presenting their alleged retardation as mitigating evidence to the

sentencer, and having the sentencer instructed to consider it.

See Penry v. Johnson, 532 U.S. 782, 150 L. Ed. 2d 9, 25, 121

S. Ct. 1910, 1920-1921 (2001) (Penry IJ). As with the more

severely retarded, the most deserving retarded defendants will

avoid the death sentence at the penalty phase when the senten-

cer relies on the mental retardation to mitigate the sentence.

The defendant’s claim that sentencing juries may not be able to

appreciate the mitigating effect of mental retardation, see Brief

for Petitioner 34-35, is why this evidence is presented through

expert testimony. Amicus knows of no other evidence that is

placed beyond every jury’s grasp because it is too complex

even with expert testimony.

The defendant’s proposal will only benefit those who claim

to be retarded but cannot otherwise avoid capital punishment

for their crimes. These will be defendants whose intelligence

is borderline or whose crimes display exceptional cruelty

outweighing that mitigation. In order to exempt these cases,

this Court would have to undo the capital punishment system it

has developed, and inflict again the disrespect for precedent, the

disruption, the complexity, and the arbitrariness that came with

Furman.

By treating the retarded as an undifferentiated mass, the

categorical exemption would cause additional harm to the

capital punishment system and the mentally retarded. The

mentally retarded are not homogenous. “Mentally retarded

22

persons are individuals whose abilities and experiences can

vary greatly.” Penry I, 492 U. S., at 338 (opinion of O’Connor,

J.) (emphasis added). “In light of the diverse capacities and life

experiences of mentally retarded persons, it cannot be said on

the record before us today that all mentally retarded people, by

definition can never act with the level of culpability associated

with the death penalty.” /d., at 338-339. Therefore, “[n]o

specific personality and behavioral features are uniquely

associated with Mental Retardation.” DSM IV-TR, supra, at

44.

Treating defendants as individuals is the foundation of the

mitigating line of cases. The problem with a mandatory penalty

statute is that “[i]t treats all persons convicted of a designated

offense not as uniquely individual human beings, but as

members of a faceless, undifferentiated mass to be subjected to

the blind infliction of the penalty of death.” Woodson v. North

Carolina, 428 U.S. 280, 304 (1976) (plurality). Thus all repeat

murderers must be treated as individuals, and cannot be subject

to a mandatory death sentence. See Sumner v. Shuman, 483

U.S. 66, 85 (1987). A blind exemption from death is no better.

If repeat murderers are to be treated as individuals, then so

should the mentally retarded. The defendant’s proposed

exemption is an affront to the concept of individualized

sentencing.

“So long as sentencers can consider and give effect to

mitigating evidence of mental retardation in imposing sentence,

_an individualized determination whether ‘death is the appropri-

ate punishment’ can be made in each particular case.” Penry /,

492 U. S., at 340 (O’Connor, J.). The intervening years have

not altered this situation. See supra, at 16. The current

treatment of mental retardation has not been eroded by subse-

quent developments, nor has it been difficult to use. Indeed, the

categorical exemption will make the law more complex and

harder to follow. See part I B 3. In short, there is no good

reason to depart from precedent. See Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833, 854-855 (1992). In

23

a system where “the very concept of the rule of law underlying

our own Constitution requires such continuity over time that a

respect for precedent is, by definition, indispensable,” id., at

854, the beneficial precedents of Penry J and Stanford should

be retained. Given the great costs and small benefit of aban-

doning these cases, the treatment of mental retardation in

capital cases should remain settled.

II. In the event that a categorical exemption for mental

retardation is created, the rules and procedures govern-

ing that determination should be left to the states.

If this Court chooses to overturn portions of Penry v.

Lynaugh, 492 U. S. 302 (1989) and Stanford v. Kentucky, 492

U. S. 361 (1989) and create a per se exemption from capital

punishment for the mentally retarded, then it should still try to

limit the damage to federalism. States should be allowed to

write their own rules governing this issue without the prospect

of a set of federally imposed, retroactively altered procedures

lurking in the background. This is consistent with both the

general deference accorded to the states’ power to define their

laws, and with this Court’s treatment of the most similar

circumstance brought before it. What must be avoided is

invoking the Eighth Amendment to force the procedures of the

states currently banning the execution of the retarded on those

states which have not written any rules on that subject, or, even

worse, to craft a judicially created set of procedures and use

them to attack the very statutes that created the “consensus” for

the underlying rule in the first place.

This has happened before. In Woodson v. North Carolina,

428 U. S. 280 (1976), the Court favorably contrasted Florida’s

death penalty scheme with the North Carolina one struck down

in Woodson. See id., at 286-287 (plurality). Although it served

as an exemplar in Woodson, the Florida scheme was not saved

from attacks based on subsequent decisions that favored the

defense. Lockett v. Ohio, 438 U. S. 586 (1978) extended

24

Woodson’ s individualization requirement into a broad right for

the capital defendant to present virtually any type of mitigating

evidence to the sentencer. See id., at 604-605 (plurality).

Lockett was then used to invalidate Florida’s statutory limits on

mitigating evidence. See Hitchcock v. Dugger, 481 U.S. 393,

399 (1987). The Eighth Amendment, as it is currently inter-

preted, is a slippery slope even for those states that provide the

example of appropriate procedures.

Current statutory exemptions for the mentally retarded will

provide plenty of fuel for litigation if the defendant's argument

is accepted. For example, at least one state requires the

defendant to prove mental retardation by clear and convincing

evidence. See, e.g., Colo. Rev. Stat. §169-402(2). Any

standard greater than a preponderance will be attacked.

Similarly, states which limit claims to those defendants who

have manifested mental retardation by a certain age, see, e.g.,

Ark. Code § 5-4-618(a)(2); Md. Ann. Code, Art. 27, § 412(f)(3),

will be attacked for improperly limiting the defense. Jurisdic-

tions also vary considerably in how mental retardation is

defined. See, e.g, 18 U. S. C. §3596(c) (“lacks the mental

capacity to understand the death penalty and why it was

imposed on that person”); Ark. Code § 5-4-618 (“[s]ignificantly

subaverage intellectual functioning accompanied by significant

deficits or impairments in adaptive functioning”); Ky. Rev.

Stat. § 532.130(2) (IQ below 70). Any attempt to narrow the

definition will be attacked. The possibilities for litigation are

nearly endless if the Eighth Amendment is allowed to govern.

Having the Eighth Amendment govern the procedures for

determining mental retardation claims will stifle state innova-

tion in this field. The “evolving standards of decency,” Trop v.

Dulles, 356 U. S. 86, 101 (1958) (plurality), line of cases can

place considerable pressure on states to conform to the current

majority rule. Since this Court first looks to the views of other

state legislatures in determining whether a practice offends the

Trop standard, see McCleskey v. Kemp, 481 U. S. 279, 300

——

25

(1987), states that vary from the majority rule risk reversal of

their sentences. See supra, at 15.

One way to alleviate this problem is to require at least an

overwhelming majority of the states to condemn a particular

practice before finding an Eighth Amendment violation. See

supra, at 13-14. This safety net will be gone if this Court

accepts a categorical exemption for mental retardation, since a

majority of the states with capital punishment do not recognize

that exemption. See supra, at 16. Removing the super-majority

restraint from the “contemporary standards of decency” analysis

could quickly constitutionalize the procedures for determining

retardation claims. Any state procedures that varied from those

adopted by the largest number of states would invite Eighth

Amendment attack. The cost of litigation and threat of reversed

sentences will give the states considerable incentives to

conform to the broadest version of the procedures.

The Eighth Amendment should not bludgeon the states into

procedural conformity on any issue. “The essence of federal-

ism is that the states must be free to develop a variety of

solutions to problems and not be forced into a common uniform

mold.” Addington v. Texas, 441 U. S. 418, 431 (1979).

Although Addington addressed due process and the civil

commitment procedures, the Eighth Amendment is not differ-

ent. “To [accept the defendant’s argument] would . . . place

within constitutional ambit micromanagement tasks that

properly rest within the State’s discretion to administer its

criminal justice system.” Harris v. Alabama, 513 U. S. 504,

512 (1995). Therefore, the fact that a majority of the states

follow a particular procedure does not require the other states

to follow suit under the emerging national consensus standard.

“The Eighth Amendment is not violated every time a State

reaches a conclusion different from a majority of its sisters over

how best to administer its criminal laws. . . . § As the Court

several times has made clear, we are unwilling to say that there

is any one right way for a State to set up its capital sentencing

scheme.” Spaziano v. Florida, 468 U. S. 447, 464 (1984).

26

This Court showed similar deference when dealing with the —

execution of the allegedly insane. In Ford v. Wainwright, 477

‘U. S. 399, 401 (1986), it stated that executing the insane

violated the Eighth Amendment. Since no state ever followed

that practice, the real issue in Ford was what procedure the

Constitution requires when a state is confronted with a claim of

insanity by a death row inmate. See id., at 431 (Rehnquist, J.,

dissenting). While a majority of the Court found fault with

Florida’s procedures, it also gave considerable deference to the

states to implement their own standards for resolving insanity

claims.

Thus, while the plurality sought some sort of adversarial

hearing, see id., at 417, the states would have considerable

freedom in how to implement this directive. “[W]e leave to the

States the task of developing appropriate ways to enforce the

constitutional restriction upon its execution of sentences.” /d.,

at 416-417. Justice Powell’s concurrence is even more impor-

tant. He noted that the real issue here was whether the Florida

procedures “comport with the requirements of due process.”

Id., at 424. He differed from the plurality on the extent of the

necessary procedures. Justice Powell held that the plurality’s —

“kind of full-scale ‘sanity trial’ ” was unnecessary, and that due

process could be satisfied by considerably less elaborate

procedures. See id., at 425. However, Justice Powell did not

differ substantially from the majority in the deference accorded

to the states’ freedom to implement their own procedures.

“Beyond [a few] basic requirements, the States should have

substantial leeway to determine what process best balances the

_—-$ « IE tre ate. -dddmmmgbys a

27

various interests at stake.” Jd., at 427. No more than “basic

fairness” was required. See ibid.’

As the narrowest opinion, Justice Powell’s opinion provides

Ford's holding. See Marks v. United States, 430 U. S.188, 193

(1977). If this Court accepts the defendant’s arguments, then

the Powell concurrence should govern. The procedures used to

determine claims of mental retardation should only have to

satisfy due process. If it chooses, a state may adopt procedures

similar to those used in determining competency to stand trial,

see Ford, 477 U. S., at 417, n. 4 (plurality), but no particular

procedures are required. Since the defendant has already been

found guilty and competent to stand trial, the state should be

allowed to require the defendant to prove his mental retardation

by clear and convincing evidence. Cf. id., at 426, and n. 6

(Powell, J., concurring). States should also have broad latitude

to define retardation, including as a minimum the definitions in -

any of the statutes used to form the “consensus.”

Fashioning an exemption from execution for mental

retardation will place additional stress on state capital punish-

ment systems. Capital defendants will have considerable

incentive to abuse this hard-to-define but potentially very

strong defense. Elaborate, constitutionally mandated proce-

dures will threaten to overwhelm capital trials and appeals with

more unwanted complexity. Even those states that currently

exempt the mentally retarded will see their systems subjected

to Eighth Amendment attack. Federalism in this most impor-

tant aspect of criminal law will take yet another blow. The best

way to minimize these and other problems is to give the states

the considerable flexibility afforded by due process.

3. Justice O’Connor’s concurrence and dissent held that while there was

no Eighth Amendment exemption from execution for insanity, Florida

law created a “protected liberty interest in avoiding execution while

incompetent,” which Florida did not adequately protect. See id., at 427.

While this mode of analysis is not particularly relevant to the present

case, the opinion also gave the states “broad latitude” to satisfy due

process. See id., at 429.

28

CONCLUSION

The decision of the Virginia Supreme Court should be

affirmed.

January, 2002

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation