# Amicus Curiae Brief — Clark v. Arizona

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0265%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 735

## Text

4 | nm Arn? 1
No. 05-5966 j JAN TI ow
ee a
IN THE A

Supreme Court of the United States

ERIC MICHAEL CLARK,
Petitioner,
v.

THE STATE OF ARIZONA,
Responden..

On Writ of Certiorari to the
Arizona Court of Appeals

BRIEF OF THE AMERICAN ASSOCIATION ON
MENTAL RETARDATION, THE ARC OF
THE UNITED STATES, THE NATIONAL
DISABILITY RIGHTS NETWORK, AND THE
BAZELON CENTER FOR MENTAL HEALTH LAW,
IN SUPPORT OF PETITIONER

—

Of Counsel: JAMES W. ELLIS
Counsel of Record
iNORMAN C. BAY
MICHAEL B. BROWDE
STEVEN K. HOMER
CAROL M. SUZUKI
1117 Stanford, NE
Albuquerque, NM 87131
(505) 277-2146

Counsel for Amici Curiae

RICHARD A. GONZALES

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Ee Ce Fay Pe i ie ccctesecncsessccsnesnensnnnianconsenee
Un vere eae Oe

__,_ STE LO a OTE TE E TETTET

I. ANGLO-AMERICAN LEGAL TRADITION
RECOGNIZES THAT MENTAL LIMITA-
TIONS CAN AFFECT AN INDIVIDUAL’S
CULPABILITY FOR CRIMINAL ACTS. ........

A. Mental Disability Has _ Traditionally
Occupied A Central Role In Assessing A
Defendant’s Criminal Responsibility ..........

B. The Reduced Culpability Of Individuals
With Mental Retardation Has Long Been
SID cieciistiteissisdpseiissiiescennniatigiadtionnendinieds

Il. DUE PROCESS REQUIRES STATES TO
RECOGNIZE THE RELEVANCE OF MEN-
TAL DISABILITY TO THE ASSESSMENT
Se GP GIMME cincteniccnsssceneninniocastasccien

A. The Constitution Imposes Modest Limits
On The States’ Wide Latitude In The Area
SG TER ea IE

B. Strict Liability For Serious Offenses Is
Strongly Disfavored.................cccccssessesrsseees

C. Depriving Defendants Of An Opportunity
To Demonstrate The Relevance Of Their
Mental Disabilities To Criminal Guilt
Constitutes Strict Liability.............cccceeseee

D. Defendants Are Entitled To An Opportu-
nity To Present Relevant Mental Disability
SPIT wicessicapiadiinncdnnntnitaiiniaseiiuisidimenentiiduindiiees

1]

13

16

18

ii
TABLE OF CONTENTS—Continued

Page
1. The Constitution requires that evidence

of mental limitations be considered in
assessing a defendant’s mens rea ........... 19

2. Whether in terms of an insanity defense
or in some other form, the States must
provide a meaningful opportunity to
demonstrate the relevance of a defen-
dant’s mental disability..................se00000 23

SPM TTDT Snnccunsipctincqunpialababyichasiennientestianibianpaddebsiness 26
TE ssp iesntbiristinshininaiingsianbpiiinepmiansnasdaninculabintbiieils la

TABLE OF AUTHORITIES
FEDERAL CASES: Page
Atkins v. Virginia, 536 U.S. 304 (2002) ...........00+ 16
Bridger v. Union Ry., 355 F.2d 382 (6th Cir.
rai icscicbesniibishiicchanehleiipdinitaiaitealaiiadiaiiiheiaathaaiaiarid 21
City of Cleburne v. Cleburne Living Ctr., 473
I I icici techincal ie taiettil 16
Cooper v. Oklahoma, 517 U.S. 348 (1996)......... 8, 11,12
Crane v. Kentucky, 476 U.S. 683 (1986)............... 20
Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
REI SSA SAU ah OO rr SOC a 21
Durham vy. United States, 214 F.2d 862 (D.C.
EE RENO Eerie SCI 5,8
Ford v. Wainwright, 477 U.S. 399 (1986)........... 7, 15-16
Foucha v. Louisiana, 504 U.S. 71 (1992) ......0..... 12
Heller v. Doe, 509 U.S. 312 (1993).............ccceeeeeee 8
Jones v. United States, 463 U.S. 354 (1983)......... 12, 22
Lambert v. California, 355 U.S. 225 (1957) ......... 15
Leland v. Oregon, 343 U.S. 790 (1952) «0.0.0.0... 1]
Marshall v. Lonberger, 459 U.S. 422 (1983)........ 11
Martin v. Ohio, 480 U.S, 228 (1987)............ccceeeeee 1]
McDonald v. United States, 312 F.2d 847 (D.C.
ESRD eae er leiitindithetetinedins 8-9
Medina v. California, 505 U.S. 437 (1992)........00. 11,24
Meyer v. Nebraska, 262 U.S. 390 (1923)... 3
Montana v. Egelhoff, 518 U.S. 37 (1996).......... 11, 17-18

Morissette v. United States, 342 U.S. 246 (1952) ....13, 14-15
Parker v. Los Angeles County, 338 U.S. 327

ESLER ASE A NER TS LE ES 19
Patterson v. New York, 432 U.S. 197 (1977) ........ passim
Penry v. Lynaugh, 492 U.S. 302 (1989) 0... 9
Robinson v. California, 370 U.S. 660 (1962)........ 15
Roper v. Simmons, 543 U.S. _, 125 S. Ct. 1183

ERSTE SERRATE Se ees A ee 7

Staples v. United States, 511 U.S. 600 (1994)... 14

— ——— — _eEReeEeeees

iV
TABLE OF AUTHORITIES—Continued

Tennard v. Dretke, 542 U.S. 274 (2004) ..........0066 16
United States v. Bailey, 444 U.S. 394 (1980)........ 19
United States v. Dotterweich, 320 U.S. 277

ee incssaiesshnsesstceickethiebileedtasiianteineiindiieatiiaaaatataddaia dla 14
United States v. Pino, 606 F.2d 908 (10th Cir.

United States v. United States Gypsum Co., 438
Gh: SE CU FOP cecvcserniccessnsinininninaiadaaninmatitins 14

STATE CASES:

Commonwealth v. Rogers, 48 Mass. (7 Met.) 500

CF ee ecistcssnicniincncnescniitiiiaialNiinadiiptieatialdietiitoaslales,
Finger v. State, 27 P.3d 66 (Nev. 2001)................
Parsons v. State, 2 So. 854 (Ala. 1887)............000
Pouncey v. State, 465 A.2d 475 (Md. 1983)..........
In re Ramon M., 584 P.2d 524 (Cal. 1978) ...........
Sinclair v. State, 132 So. 581 (Miss. 1931) ...........
State v. Bridgeforth, 750 P.2d 3 (Ariz. 1988)........
State v. Jones, 50 N.H. 369 (1871) ............0..ccce eens
State v. Pike, 49 N.H. 399 (1870) ............cceeeeeeceeeee
State v. Strasburg, 110 P. 1020 (Wash. 1910).......

OTHER CASES:

M’ Naghien’s Case, 8 Eng. Rep. 718 (H.L. 1843)... 3
Regina v. Oxford, 173 Eng. Rep. 941 (H.L. 1840)...
Rex v. Arnold, 16S. Tr. 695 (H.L. 1724) .........00 5

STATUTES AND RULES:

Ped. BR. GERD, FOE wenescscscsstveneeinscnnisnovosdemmmaianeieinins 21
Insanity Defense Reform Act of 1984, 18 U.S.C.

BOF CI cserscscscniisesssininsnssiientitenistanmaiiadiaia 7,8, 25
AGER. D. TIVE, FOB vcscsesecrevisnisaniiionnsnininaniaias 2)
Idaho Code Ann. § 18-207 (1982)... eeeeeeeeees 7

— Nd

YQUMASrISoAUADG

oO
T

4)

Vv
TABLE OF AUTHORITIES—Continued

Page
Kan. Stat. Ann. § 22-32-20 (1996) .............cccceeeeees 7
Mont. Code Ann. § 46-14-101 (1979)................... 7
Utah Code Ann. § 76-2-305 (1983) .............cccceeeee 7

MISCELLANEOUS AUTHORITIES:

AAMR, Mental Retardation: Definition, Classi-
fication, and Systems of Supports (10th ed.
cc 17

Acker, James R. & Charles S. Lanier, /n Fairness
and Mercy: Statutory Mitigating Factors in
Capital Punishment Laws, 30 Crim. L. Bull.
ia eet ariccitetierinacinlebpensnnscnnnaee 17

Am. Bar Ass’n, Standards for Criminal Justice..... 22-23

Anderson, V.V., Feeblemindedness as Seen in

Court, | Mental Hygiene 260 (1917)................ 9
Blackstone, William, Commentaries ............:..0++ 8, 13
Dain, Norman, Concepts of Insanity in the

United States 1789-1865 (1964) ........ccccccececeeeeee 4

Diamond, Bernard L., /saac Ray and the Trial of
Daniel M' Naghten, 112 Am. J. Psychiatry 651

SEES EES RCo ae eee 6
Eigen, Joel Peter, Witnessing Insanity: Madness
and Mad Doctors in the English Court (1995).. 4

Ellis, James W. & Ruth A. Luckasson, Mentally
Retarded Criminal Defendants, 53 Geo. Wash.
ae Bs Se 0 OE Riccncecuessenseessennseesensseeessavessssecse 10, 22
Fitz-herbert, Anthony, The New Natura Brevium
of The Most Reverend Judge, Mr. Anthony
EEN 5
Garvey, Stephen P., Aggravation and Mitigation
in Capital Cases: What Do Jurors Think?, 98
Colum. L. Rev. 1538 (1998) ...ccccseseseeseeeees 16-17, 18

vi
TABLE OF AUTHORITIES—Continued
Page
Gelder, Michael, Dennis Gath et al., Aetiology, in
Oxford Textbook of Psychiatry (3d ed. 1996)... 17

Goddard, H.H., A Brief Report on Two Cases of
Criminal Imbecility, 19 J. Psycho-Asthenics

Be ree ceiintinireaceetaiertiihhadhibiitnieniniet ai ictaitaauaisiiiiaaits 10
Goddard, H.H., The Kallikak Family: A Study in
the Heredity of Feeble-Mindedness (1912)....... 10

Griffin, Wm. Ray, Criminal Responsibility of the
Mentally Deficient, 20 Southern Med. J. 918

Heinbecker, Peter, Two Years’ Experience under
Utah's Mens Rea Insanity Law, 14 Bull. Am.

Acad. Psychiatry & L. 185 (1986)... 25
Hurnard, Naomi D., The King’s Pardon for
Homicide Before A.D. 1307 (1969) .........ccce00000 3

Jimenez, Mary Ann, Changing Faces of Mad-

ness: Early American Attitudes and Treatment

i I iitanttinaiidncdanbenntaibinnininetiniinieies 4
LaFave, Wayne R., Criminal Law (4th ed. 2003)... 14, 18
Matson, Johnny L. & Virginia E. Fee, Social

Skills Difficulties Among Persons with Mental

Retardation, in Handbook of Mental Retard-

ation (Johnny L. Matson & James A. Mulick

GE Rs Fe insepniccsinentsnteibinticnginatitesinntinn 20-21
I 8, 14, 23
Moran, Richard, Right From Wrong: The

Insanity Defense of Daniel McNaughtan

GF Ri ceceeancinsaniatcncuiubsentsidsnanmsenvedtniunmaniininaatiots 5
Mueller, Christopher B. & Laird C. Kirkpatrick,
PINS GOO OE, BIR crccenescntasccsectntwntsnnicnnscsess 21

Parsons, Herbert C., The Learned Judge and the
Mental Defective Meet—What Then’, 12
Mental Hygiene 25 (1928).............ccccsesecesseeeeees 9-10

vil
TABLE OF AUTHORITIES—Continued

Plato, Laws (B. Jowett trans., 3d ed. 1892)...........
Platt, Anthony Michael & Bernard L. Diamond,
The Origins and Development of the “Wild
Beast” Concept of Mental Iliness and its
Relation to Theories of Criminal Responsibil-
ity, 1 J. Hist. Behav. Sci. 355 (1965)..............02.
Platt, Anthony & Bernard L. Diamond, The
Origins of the “Right and Wrong” Test of
Criminal Responsibility and Its Subsequent
Development in the United States: An His-
torical Survey, 54 Cal. L. Rev. 1227 (1966)......
Porter, Roy, Mind-Forg‘d Manacles: A History of
Madness in England from the Restoration to
TES ae oo ae
Ray, Isaac, A Treatise On the Medical Juris-
prudence of Insanity (reprint 1962) (Ist ed.
usual hicvsitenesccascenncenicinindasetiitinaideisintadeniediiniamaiieadiianintiians
Robinson, Daniel N., Wild Beasts and Idle
Humours: The Insanity Defense from Antiquity
en IE icnrinetcinceniatistcniiieenriciaiitniis
Robinson, Paul H., Criminal Law (1997)...:..........
Rojahn, Johannes, Johnny L. Matson et al.,
Relationships Between Psychiatric Conditions
and Behavior Problems Among Adults with
Mental Retardation, 109 Am. J. Mental
IED ae Ge itrcricstenintcicninsiceinentoniataninente
Rosenberg, Charles E., The Trial of the Assassin
Guiteau: Psychiatry and Law in the Gilded
eT iciciincseiiiheindlintetiidiiadiidimasiiiiaitninnataiaaiiaanita
Saunders, Trevor J., Plato's Penal Code:
Tradition, Controversy, and Reform in Greek
PI CUNT actcsiensienveditanentinciasiintntateiiiiginatiiobes

4,6

Vill

TABLE OF AUTHORITIES—Continued

Smith, Roger, The Boundary Between Insanity
and Criminal Responsibility in Nineteenth-
Century England, in Madhouses and Mad-
Doctors and Madmen: The Social History of
Psychiatry in the Victorian Era (Andrew Scull

Spitzka, E.C., Insanity: Its Classification, D’ 1g-
nosis and Treatment (reprint 1973) (1887)........
Steadman, Henry J., Beating a Rap?: Defendants
Found Incompetent to Stand Trial (1979).........
Steadman, Henry J., Margaret A. McGreevy et
al., Before and After Hinckley: Evaluating
Insanity Defense Reform (1993) .........ccccccsceeeeeee
Tredgold, A.F., Mental Deficiency (Amentia) (\st
Oh, Te ieisicceensibsnctsisicciabnentneindenpuiinniiinnietintiin
Trent, Jr., James W., Inventing the Feeble Mind:
A History of Mental Retardation in the United
ae arceineidiuemnccbanictinatdiniieieaiitninitiiiestuniis
Walker, Nigel, Crime and Insanity in England:
Volume One—The Historical Perspective
EIIITTEED ncciestnennstebicindrnesnenenndsdeinuitiuedebiniemesinien
Wallace, George L., Are the Feebleminded
Criminals?, 13 Mental Hygiene 93 (1929)........
Weihofen, Henry, Mental Disorder as a Criminal
IR CR ep eccensssnsissntanasmennneeminnitinnennte
Weinstein, Jack B. & Margaret A. Berger,
Weinstein's Evidence Manual (student 7th ed.

Zenderland, Leila, Measuring Minds: Henry
Herbert Goddard and the Origins of American
Intelligence Testing (1998) ........c.cccccsececeseseeeeeeee

Page

IN THE

Supreme Court of the Anited States

No. 05-5966

ERIC MICHAEL CLARK,
Petitioner,
Vv.

THE STATE OF ARIZONA,
Respondent.

On Writ of Certiorari to the
Arizona Court of Appeals

BRIEF OF THE AMERICAN ASSOCIATION ON
MENTAL RETARDATION, THE ARC OF
THE UNITED STATES, THE NATIONAL
DISABILITY RIGHTS NETWORK, AND THE
BAZELON CENTER FOR MENTAL HEALTH LAW,
IN SUPPORT OF PETITIONER

INTEREST OF AMICI '

Amici are national organizations of mental disability pro-
fessionals and citizens (more fully described in the Appendix)
with longstanding concerns about constitutional and statutory
protections for people with mental disabilities in the criminal
justice system.

' This brief was written entirely by counsel for amici, 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. All parties have given
written consent to the filing of this brief.

2
SUMMARY OF ARGUMENT

It is now clearly established that the vast majority of people
with mental retardation, developmental disabilities, or mental
illness do not engage in criminal behavior. They live
peacefully and productively in their communities. But when
someone with a serious mental disability is charged with a
criminal offense, the disability is very frequently relevant to
the question of the individual’s personal culpability.

Anglo-American legal tradition has long acknowledged the
relevance of such disabilities to criminal cases. Although the
formulations have varied over time, both courts and legisla-
tures have recognized a disability-based defense. Most of the
reported cases involve defendants with mental illness, but
every formulation of the defense also encompasses individu-
als who have mental retardation.

The strength and durability of this tradition mean that its
core principle is reflected in the Due Process Clause. While
the States have considerable latitude in shaping their criminal
laws, they must offer a defendant a meaningful opportunity to
demonstrate the relevance of mental disability to the criminal
charge. Failure to afford that opportunity is tantamount to
transforming such crimes into strict liability offenses for these
defendants.

States can satisfy the requirements of Due Process in more
than one way. But, at a minimum, they must consider mental
disability evidence offered by the defense to rebut any pre-
sumption about mens rea, and must provide a meaningful
opportunity to establish the disability’s relevance to the de-
fendant’s personal culpability.

3
ARGUMENT

I. ANGLO-AMERICAN LEGAL TRADITION REC-
OGNIZES THAT MENTAL LIMITATIONS CAN
AFFECT AN INDIVIDUAL’S CULPABILITY
FOR CRIMINAL ACTS.

A. Mental Disability Has Traditionally Occupied
A Central Role In Assessing A Defendant’s
Criminal Responsibility.

The relationship between mental disability and criminal
culpability has been acknowledged since days of antiquity,’
and in a variety of formulations was accepted by both canoni-
cal and civil law into the Middle Ages.’ The one major
interruption in the acceptance of the exculpatory significance
of mental disability occurred during the period of society’s
focus on witchcraft.* The sentiment against punishing per-

’ Plato noted that crimes could be committed “in a state of madness or
when affected by disease, or under the influence of extreme old age, or in
a fit of childish wantonness, himself no better than a child. And if this be
made evident to the judges elected to try the cause, on the appeal of the
criminal or his advocate, and he be judged to have been in this state when
he committed the offence, he shall simply pay for the hurt which he may
have done to another; but he shall be exempt from other penalties, unless
he have slain some one, and have on his hands the stain of blood. And in
that case he shall go to another land and country, and there dwell for a
year....” Plato, Laws 248 (B. Jowett trans., 3d ed. 1892). See Trevor J.
Saunders, Plato's Penal Code: Tradition, Controversy, and Reform in
Greek Penology 217 (1991). (Plato was not always so charitable, from a
modem perspective, to people with disabilities. See Meyer v. Nebraska,
262 U.S. 390, 402 (1923).)

*“fn the matter of criminal responsibility, both ecclesiastical and sec-
ular courts routinely exonerated defendants judged to be insane or men-
* tally retarded.” Daniel N. Robinson, Wild Beasts and Idle Humours: The
Insanity Defense from Antiquity to the Present 7\ (1996); see also Naomi
D. Hurnard, The King's Pardon for Homicide Before A.D. 1307, at 159-60
(1969).

* Robinson, supra note 3, at 74-75 (“Indeed, the very theory of witch-
craft effectively denied defendants access to the insanity defense, though
the defense was otherwise available.”).

4

sons whose acts were occasioned or substantially affected
by mental disability became more securely settled with the
rejection of the notion that mental disability resulted from
demonic possession, and with the growing recognition of
mental illness as a medical phenomenon.

The implementation of a complete defense based on mental
disability has been controversial over time,° and remains so
today.’ The fact that it has endured periodic assaults is testa-
ment, not to its fragility, but rather to the enduring character
of its basic principle. Whether the conceptualization of an
“insane” defendant was expressed in terms of analogy to a

> See generally Nigel Walker, Crime and Insanity in England: Volume
One—The Historical Perspective (1968); Roy Porter, Mind-Forg'd Mana-
cles: A History of Madness in England from the Restoration to the
Regency (1987); Joel Peter Eigen, Witnessing Insanity: Madness and
Mad-Doctors in the English Court (1995). One historian, however, has
suggested that while legal recognition of insanity as a defense developed
earlier, the phenomenon of medicalization and public acceptance of insan-
ity as a medical phenomenon gained widespread acceptance somewhat
later than the Victorian period. Roger Smith, The Boundary Between
Insanity and Criminal Responsibility in Nineteenth-Century England, in
Madhouses and Mad-Doctors and Madmen: The Social History of
Psychiatry in the Victorian Era 363, 364 (Andrew Scull ed., 1981).

® See, e.g., Charles E. Rosenberg, The Trial of the Assassin Guiteau:
Psychiatry and Law in the Gilded Age 53-56 (1968) (noting that popular
debate during the trial of President Garfield’s assassin sometimes referred
to “the insanity dodge”). See generally Mary Ann Jimenez, Changing
Faces of Madness: Early American Attitudes and Treatment of the Insane
(1987); Norman Dain, Concepts of Insanity in the United States 1789-
1865, at 43-52 (1964).

Henry J. Steadman, Margaret A. McGreevy et al:, Before and After
Hinckley: Evaluating Insanity Defense Reform 1-10 (1993). It should be
noted that some of the same public skepticism extends to other legal
issues involving individuals with mental disability, notably incompetence
to stand trial. See, e.g., Henry J. Steadman, Beating a Rap’: Defendants
Found Incompetent to Stand Trial 4-6 (1979).

5

“wild beast,”" or inquiry whether an individual had the
mental capacity to perform rudimentary tasks like “counting
twenty pence,””’ whether the individual could distinguish
right from wrong,'’ whether he had the capacity to control his
behavior in the face of an irresistible impulse,'' or whether
his actions were the “product” of mental disability,'? there
has remained in our law a core belief that some defendants
are so affected by mental disability that it would be

fundamentally unjust to convict and punish them.

The inquiry into the antecedents that constitute our legal
traditions encompasses the full scope of Anglo-American
legal history. But in interpreting the Due Process Clause, the
understanding in the mid-Nineteenth Century carries particu-
lar significance because of the light it may shed on the
perspectives in this country at the time the Fourteenth
Amendment was written and ratified. It is clear that Ameri-
can medical and legal professionals were generally conscious

* See, for example, Mr. Justice Tracy’s jury instruction in Rex y.
Arnold, 16 S. Tr. 695, 764-65 (H.L. 1724). See generally Anthony
Michael Platt & Bernard L. Diamond, The Origins and Development of
the “Wild Beast” Concept of Mental Illness and its Relation to Theories
of Criminal Responsibility, | J. Hist. Behav. Sci. 355 (1965).

” See, e.g., Anthony Fitz-herbert, The New Natura Brevium of The Most
Reverend Judge, Mr. Anthony Fitz-herbert 532 (rev. & corrected ed.
1666). See Henry Weihofen, Mental Disorder as a Criminal Defense 53-
54 n.6 (1954){suggesting that while it was discussed in terms of criminal
responsibility, the example was intended as a diagnostic description of
idiocy rather than a precise formula for a criminal responsibility).

'° M‘Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843). See generally
Richard Moran, Right From Wrong: The Insanity Defense of Daniel
McNaughtan (1981).

'' See, e.g., Parsons v. State, 2 So. 854, 865 (Ala: 1887): Regina v.
Oxford, 173 Eng. Rep. 941, 950 (H.L. 1840).

See, e.g., State v. Jones, 50 N.H. 369, 382 (1871); State v. Pike, 49
N.H. 399, 408 (1870); Durham v. United States, 214 F.2d 862, 875 (D.C.
Cir. 1954).

6

of the issue, and that there was widespread awareness of the
M’Naghten case, albeit with spirited debate about its ade-
quacy as a legal test.'* The most widely noted American
publication on the subject was Isaac Ray’s Treatise on the
Medical Jurisprudence of Insanity,'* later editions of which
criticized the M’ Naghten test as too narrow in scope.'°

Debates on the scope and implementation of the insanity
defense continued into the Twentieth Century.'° While there

'* See, e.g., Rosenberg, supra note 6, at 102-03. The first use of
M’ Naghten by an American appellate court appears to be Chief Justice
Shaw’s opinion in Commonwealth v. Rogers, 48 Mass. (7 Met.) 500, 502
(1844). See generally Anthony Platt & Bernard L. Diamond, The Origins
of the “Right and Wrong” Test of Criminal Responsibility and Its
Subsequent Development in the United States: An Historical Survey, 54
Cal. L. Rev. 1227 (1966) (use of the right-and-wrong test in American
courts predated M’ Naghten).

“Isaac Ray, A Treatise on the Medical Jurisprudence of Insanity
(reprint 1962) (Ist ed. 1838). First published in 1838, the treatise had
been cited extensively in the M’Naghten trial. Bernard L. Diamond, /saac
Ray and the Trial of Daniel M’Naghten, 112 Am. J. Psychiatry 651
(1956). Ray’s treatise was in its fourth edition (1860) at the time of the
39th Congress. .

'S Ray, supra note 14, app. I, at 343-50 (Sth ed. 1871). Other
American medical authorities of the era agreed. See generally, E.C.
Spitzka, /nsanity: Its Classification, Diagnosis and Treatment 23 (reprint
1973) (1887) (“that cannot be sanity in law which is insanity in science”).

'© There were isolated, ultimately unsuccessful efforts to abolish the
defense early in the last century. Those statutory efforts were declared
unconstitutional by state courts. See State v. Strasburg, 110 P. 1020
(Wash. 1910); id. at 1027 (Rudkin, C.J., concurring) (“There is little
analogy between {a nondisabled defendant’s mistake of fact] and the idiot,
the imbecile, or the person who is insane to the degree defined by our
statute. It will be conceded that the Legislature has a broad discretion in
defining and prescribing punishment for crime, but, broad and pervading
as the police power is, it is not without constitutional limitations and
restraints, and we can scarcely conceive of a valid penal law which would
punish a man for the commission of an act which the utmost care and
circumspection on his part would not enable him to avoid.”) (emphasis

7

were isolated efforts at the state level to abolish the defense,’
and unsuccessful efforts at the federal level in the 1980s,'* it
cannot be disputed that some form of recognition that mental
disability may undermine or diminish criminal liability is a
“principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.” See Patterson
vy. New York, 432 U.S. 197, 202 (1977) (internal citations
omitted).'”

added); Sinclair v. State, 132 So. 581 (Miss. 1931); id. at 584 (Ethridge,
J., concurring) (“So closely has the idea of insanity as a defense to crime
been woven into the criminal jurisprudence of English speaking countries
that it has become a part of the fundamental laws thereof.”).

” See Idaho Code Ann. § [8-207 (1982); Kan. Stat. Ann. § 22-32-20
(1996); Mont. Code Ann. § 46-14-101 (1979); Utah Code Ann. § 76-2-
305 (1983). But see Finger v. State, 27 P.3d 66, 84 (Nev. 2001) (“{L]egal
insanity is a well-established and fundamental principle of the law of the
United States. It is therefore protected by the Due Process Clauses of
both the United States and Nevada Constitutions.”).

'* But cf. insanity Defense Reform Act of 1984, 18 U.S.C. § 17 (1984)
(changing the test for insanity but preserving the defense).

'’ The fact that the insanity defense (or a successful mens rea defense)
is controversial does not resolve the Due Process inquiry. Other criminal
law protections that this Court has recognized as fundamental are also
potentially controversial, at least after a result unfavorable to the prose-
cution in high-profile cases (for example, the privilege against self-in-
crimination, state-provided counsel for indigents, proof beyond a reason-
able doubt at trial, suppression of the fruits of unreasonable searches or
seizures, or the prohibition on double jeopardy).

Interpretations of both the Due Process Clause and the Eighth Amend-
ment include examination of our !egal traditions, but do so in somewhat
different ways. Eighth Amendment analysis includes both inquiries inic
historical antecedents, e.g., Ford v. Wainwright, 477 U.S. 399, 406-08
(1986), and into contemporary social consensus, Roper v. Simmons, 543
U.S. __, 125 S. Ct. 1183, 1192-94 (2005). As a result, Eighth Amend-
ment examination of legislative enactments is a means of gauging the
existence and evolution of contemporary standards of decency. By con-
trast, the “rooted in the traditions and conscience” inquiry in Due Process
analysis looks to the centrality and continuity of traditional protections.

8

B. The Reduced Culpability Of Individuals With
Mental Retardation Has Long’ Been
Recognized.

Although the cases have focused on defendants with men-
tal illness, there has also been recognition, at least in theory,
that the same principle applies to individuals whose impair-
ment results from mental retardation. At common law, par-
ticularly with regard to issues like conservatorship and prop-
erty, distinctions were drawn between people with mental
illness and people with mental retardation. See Heller v. Doe,
509 U.S. 312, 326 (1993). These appear to have derived, at
least in part, from different expectations about whether an
individual might become mentally competent at some time in
the future. See William Blackstone, 1 Commentaries *296.
Categorical distinctions of this type, however, were not
generally made part of the criminal law.

None of the early formulations of the insanity defense
excluded people whose impairment we would now identify as
mental retardation. Fitz-herbert’s “count twenty pence” test
was clearly focused on intellectual impairment. Blackstone
counseled that “idiots and lunatics are not chargeable for their
own acts, if committed when under these incapacities: no, not
even for treason itself.”” William Blackstone, 4 Commentaries
*24. The M’Naghten test’s reference to mental disease or
defect expressly included individuals with mental retardation.
Other formulations, including the Model Penal Code and the
Insanity Defense Reform Act of 1984, have also adopted the
“defect” category as a parallel to mental disease.””

Cooper vy. Oklahoma, 517 U.S. 348, 356-63 (1996). Thus, while sharp
public controversy may be relevant to Eighth Amendment analysis, it is
less so for Due Process.

*” Model Penal Code § 4.02 (official deft. & rev. cmts. 1985); Insanity
Defense Reform Act of 1984, 18 U.S.C. § 17 (1984). See also McDonald
v. United States, 312 F.2d 847, 851 (D.C. Cir. 1962) (applying the “prod-
uct” test of Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954), to

9

Even in the era of our history that featured the most viru-
lent antipathy toward people with mental retardation, there
was some recognition of their reduced moral culpability.
When leading authorities in the field of mental retardation
were sounding the alarm of an imagined threat posed to
society,’ many also acknowledged the effect of the disability
on an individual’s moral responsibility.”

defendants with mental retardation). The fact that the scope of the cate-
gories of “idiots,” “imbeciles,” “morons,” and other archaic (and now
offensive) terms may not be precisely coextensive with the modern defini-
tion of mental retardation, see Penry v. Lynaugh, 492 U.S. 302, 332-33
(1989), does not reduce the relevance of these early cases to the constitu-
tional questions of whether our legal traditions recognize the relevance of
a defendant’s disability to culpability, and whether there is a right to
present evidence about the disability to rebut a presumption of a culpable

mental state.

*! See, e.g., James W. Trent, Jr., Inventing the Feeble Mind: A History
of Mental Retardation in the United States 131-83 (1994); Leila Zender-
land, Measuring Minds: Henry Herbert Goddard and the Origins of
American Intelligence Testing (1998).

” See, e.g., A.F. Tredgold, Mental Deficiency (Amentia) 306 (1st ed.
1908) (“I am quite certain that in persons suffering from amentia a dimin-
ished power of control is so commonly present, and such an essential part
of their mental condition, that a grave injustice may be done if this be not
taken into account.”); V.V. Anderson, Feeblemindedness as Seen in
Court, | Mental Hygiene 260, 263 (1917) (“Not only were they incapable
of measuring up to the educational or economic standards met by their
normal fellows, but they were equally incapable of conforming to the
standards of conduct of the community in which they lived.”); Wm. Ray
Griffin, Criminal Responsibility of the Mentally Deficient, 20 Southem
Med. J. 918, 919 (1927) (“[MJorons and high grade imbeciles and the
lower types of defectives are only imitators and act impulsively, doing the
thing that appeals to them most strongly, or that they are urged or
persuaded to do. They are unable to take the problem and weigh it from
the standpoint of right and wrong and act accordingly.”); George L.
Wallace, Are the Feebleminded Criminals?, 13 Mental Hygiene 93, 96
(1929) (“There is littke doubt that mos: of the feebleminded who become
criminals do so by accident rather than by intention.”). See also Herbert .
C. Parsons’s (exquisitely titled) The Learned Judge and the Mental

10

While the insanity defense, at least in modern times, has
been used less frequently by defendants with mental retarda-
tion than in cases involving defendants with mental illness,”°
it remains at least theoretically available.** But its infrequent
use in mental retardation cases emphasizes the crucial impor-
tance of recognizing the right of defendants with mental
retardation to offer rebuttal evidence on the issue of mens rea.

Defective Meet—What Then?, 12 Mental Hygiene 25, 30 (1928) (“Given a
crime sufficiently atrocious and a popular resentment sufficiently
inflamed, and the measurings of mental responsibility go to discard.”’).

The most widely cited, and to modern eyes perhaps the most notorious,
authority of the alarmist period was Henry H. Goddard. See, e.g., Henry
H. Goddard, The Kallikak Family: A Study in the Heredity of Feeble-
mindedness (1912). While Goddard campaigned tirelessly for eugenic
sterilization and segregation of people with mental retardation, he also
acknowledged that they often lacked responsibility for their criminal acts.
See, e.g., Henry H. Goddard, A Brief Report on Two Cases of Criminal
Imbecility, 19 J. Psycho-Asthenics 31, 33 (1914) (“He may be able to say
that it is wrong as a mere matter of verbal repetition, repeating what he
had heard others say, but as for having a realizing sense of the wrongful-
ness of the deed, I am satisfied that no imbecile or moron of his grade has
any such knowledge.”’).

? It is not completely clear why this is true. Although amici have
found no relevant statistics, it is conceivable that there may be somewhat
more frequent diversion from prosecution for some defendants who have
mental retardation, particularly where the impairment is manifestly severe.
It may also be that some defense counsel fail to detect or correctly identify
their clients’ mental impairment. And the fact that the defense is labeled
“insanity,” a term connoting mental illness, may prove to be a barrier, in
some way, to obtaining recognition of its applicability to a defendant with
mental retardation.

4 See, e.g., In re Ramon M., 584 P.2d 524, 529-30 (Cal. 1978). Over
the years, there have been a few cases in which courts precluded defen-
dants who appear to have had mental retardation from raising the defense.
See James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal
Defendants, 53 Geo. Wash. L. Rev. 414, 432-41 (1985), for a fuller dis-
cussion of these early cases.

Il. DUE PROCESS REQUIRES STATES TO
RECOGNIZE THE RELEVANCE OF MENTAL
DISABILITY TO THE ASSESSMENT OF
CRIMINAL GUILT.

A. The Constitution Imposes Modest Limits On
The States’ Wide Latitude In The Area Of
Criminal Justice.

Out of respect for the proper role of the States in our
federal system, this Court has allowed them considerable
latitude in defining crimes and enacting procedures for their
adjudication. Martin v. Ohio, 480 U.S. 228, 232 (1987);
Patterson, 432 U.S. at 201 (“[WJe should not lightly construe
the Constitution so as to intrude upon the administration of
justice by the individual States.”). This leeway granted to the
States reaches into such areas as evidentiary rules, Marshall
v. Lonberger, 459 U.S. 422, 438 n.6 (1983), allocating bur-
dens of persuasion, Medina v. California, 505 U.S. 437
(1992), and identifying the acts they choose to criminalize
and the elements of those crimes, Montana v. Egelhoff, 518
U.S. 37, 57 (1996) (Ginsburg, J., concurring in the judgment).

Amici recognize that one of the areas in which the Court
has shown deference to state legislative judgments involves
the treatment of individuals with mental disabilities. In the
criminal context, the Court has allowed a State to impose a
heavy burden of persuasion on a criminal defendant pleading
insanity, and refrained from requiring one particular formu-
lation of the insanity defense on all the States. Leland vy.
Oregon, 343 U.S. 790, 798-801 (1952).*° On occasion,

» In the doctrinally distinct (but practically related) area of compe-
tence, the Court also allowed a State to impose the burden of persuasion
on the defendant in estadiishing incompetence to stand trial. Medina vy.
California, SOS U.S. 437 (1992). But see Cooper v. Oklahoma, 517 U.S.
348 (1996) (unconstitutional to impose burden on defendant at the
elevated level of “clear and convincing evidence”).

12

individual Justices of this Court have noted the question of
whether the insanity defense is constitutionally required.
See, e.g., Foucha v. Louisiana, 504 U.S. 71, 97-98 (1992)
(Kennedy, J., dissenting) (observing that several States had
abolished the defense). In addition, States have been afforded
considerable latitude in designing a system of civil commit-
ment for those acquitted by reason of insanity. See generally
Jones v. United States, 463 U.S. 354 (1983).

However, the freedom of States to shape their criminal
laws is not limitless. The Constitution does impose some
limits on both the substantive and procedural aspects of state
criminal laws. Some of these limitations derive from the
relatively explicit provisions of the Bill of Rights. Others are
grounded in the more general wording of the Due Process
Clause of the Fourteenth Amendment and the Punishments
Clause of the Eighth Amendment. When interpreting these
potentially more expansive texts, the Court has grounded (and
thus limited) its supervision of the States by looking to the
historical experience of Anglo-American legal tradition and
to basic principles of fundamental fairness. Cooper v.
Oklahoma, 517 U.S. 348, 355 (1996).

Particularly in interpreting the Due Process Clause, histori-
cal tradition has a prominent position. In evaluating proce-
dural protections, the Court has only intervened when the
State’s law “offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental.” Patterson, 432 U.S. at 202 (internal citations
omitted). Principles of federalism require a similar focus on,
and examination of, our legal traditions and experience in
evaluating novel alterations of a State’s substantive criminal
laws.

When state laws alter the traditional approaches to the
culpability of defendants with serious mental disabilities,
historical guides can be identified in two separate lines of
doctrinal development. The first is the history of addressing

13

the culpability of defendants with such disabilities. The sec-
ond line of development is the persistence of our commitment
to the principle that a finding of guilt for a serious crime
cannot be based on strict liability and must be supported by a
conclusive demonstration of personal culpability.

B. Strict Liability For Serious Offenses Is Strongly
Disfavored.

The core principle of grounding guilt in an individual
defendant’s personal culpability is a broad and durable foun-
dation of our criminal law. More than half a century ago,
Justice Jackson articulated the fundamental commitment to
that principle:

The contention that an injury can amount to a crime
only when inflicted by intention is no provincial or
transient notion. It is as universal and persistent in
mature systems of law as belief in freedom of the human
will and a consequent ability and duty of the normal
individual to choose between good and evil.... Un-
qualified acceptance of this doctrine by English common
law in the Eighteenth Century was indicated by
Blackstone’s sweeping statement that to constitute any
crime there must first be a “vicious will.”

Morissette v. United States, 342 U.S. 246, 250-51 (1952)
(footnotes omitted) (quoting William Blackstone, 4 Commen-
taries *21).

This bedrock principle retains its force, even with the en-
actment of modern regulatory laws that sometimes impose
penalties without proof of individual culpability. The crea-
tion of offenses, often in the borderland between criminal law
and administrative law, see Morissette, 343 U.S. at 252-54,
does not erode the central importance of individual guilt in
traditional crimes. First, strict liability offenses are most
frequently limited to violations of law that are punished at

14

relatively modest levels.*° In addition, they often involve
conduct of an actor who is capable of knowing and has reason
to know of the risk to the public posed by his conduct. See,
e.g., Staples v. United States, 511 U.S. 600, 607 (1994);
United States v. Dotterweich, 320 U.S. 277, 281 (1943).
These factors contribute to what Chief Justice Burger de-
scribed as “their generally disfavored status.” United States
v. United States Gypsum Co., 438 U.S. 422, 438 (1978).

The generally cabined exception, found in regulatory of-
fenses, has left intact the basic principle for the most serious
crimes: personal culpability remains a central requirement.
As Justice Jackson explained:

Crime, as a compound concept, generally constituted
only from concurrence of an evil-meaning mind with
an evil-doing hand, was congenial to an_ intense
individualism and took deep and early root in American
soil.... The unanimity with which [the courts] have
adhered to the central thought that wrongdoing must be
conscious to be criminal is emphasized by the variety,
disparity and confusion of their definitions of the
requisite but elusive mental element. However, courts of
various jurisdictions, and for the purposes of different
offenses, have devised working formulae, if not scien-
tific ones, for the instruction of juries around such terms

2° For example, the Model Penal Code limits strict liability offenses to
those punishable by a fine. “Crime does and should mean condemnation
and no court should have to pass that judgment unless it can declare that
the defendant’s act was culpable. This is too fundamental to be compro-
mised. The law goes far enough if it permits the imposition of a monetary
penalty in cases where strict liability has been imposed.” Model Penal
Code § 2.05 cmt. |, at 283 (official drft. & rev. cmts. 1985) (footnote
omitted). See also Staples v. United States, 511 U.S. 600, 616-19 (1994).
In most modern legislation, strict liability offenses carry “a relatively light
penaltygenerally of the misdemeanor variety.” Wayne R. LaFave,
Criminal Law 273 (4th ed. 2003).

15
criminal intent,

” 66 7” 6

as “felonious intent, malice afore-
thought,” “guilty knowledge,” “fraudulent intent,” “wil-
fulness,” “scienter,” to denote guilty knowledge, or
“mens rea,” to signify an evil purpose or mental cul-
pability. By use or combination of these various tokens,
they have sought to protect those who were not blame-
worthy in mind from conviction of infamous common-
law crimes.

Morissette, 342 U.S. at 251-52 (footnotes omitted) (emphasis
added).

This longstanding tradition has guided this Court’s efforts
in cases like Morissette and Staples to interpret statutes where
there is legislative ambiguity about the required mens rea.
The fact that the Court has seldom had occasion to address
the constitutionality of strict liability statutes results, in large
part, from the fact that legislatures have generally been quite
reluctant to impose liability without fault for traditional,
major crimes that involve both public censure and heavy
penalties.

7 4

But when a State seeks to impose its most severe criminal
penalties on defendants whose culpability may have been
substantially impaired by mental disability, serious Due
Process questions must be addressed.”

*’ The principal focus of the Court in this area has been the Due
Process Clause of the Fourteenth Amendment. But convicting a defen-
dant who has a substantial mental disability without affording opportunity
to consider the possibly exculpatory implications of that disability also
raises issues of cruel and unusual punishment under the Eighth Amend-
ment. Cf. Robinson vy. California, 370 U.S. 660, 661 (1962); Lambert v.
California, 355 U.S. 225, 231 (Frankfurter, J., dissenting) (1957). Like
the Due Process Clause, the Punishments Clause has a dual focus on
historical practices and contemporary notions of fairness. See, e.g., Ford
v. Wainwright, 477 U.S. 399, 406 (1986) (“In addition to considering the
barbarous methods generally outlawed in the 18th century, .. . this Court
takes into account objective evidence of contemporary values before
determining whether a particular punishment comports with the funda-

16

C. Depriving Defendants Of An Opportunity To
Demonstrate The Relevance Of Their Mental
Disabilities To Criminal Guilt Constitutes
Strict Liability.

The relevance of mental retardation and other serious men-
tal disabilities to criminal culpability has been universally
recognized. As this Court has observed, individuals with
mental retardation “have a reduced ability to cope with and
function in the everyday world.” City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 442 (1985). While the
vast majority of individuals with this intellectual impairment
do not engage in criminal behavior, it is always relevant to
assessing culpability when criminal conduct is charged.
“(T]joday our society views mentally retarded offenders as
categorically less culpable than the average criminal.” Atkins
v. Virginia, 536 U.S. 304, 316 (2002). See also id. at 318
(“Because of their impairments, ... by definition they have
diminished capacities to understand and process information,
to communicate, to abstract from mistakes and learn from
experience, to engage in logical reasoning, to control im-
pulses, and to understand the reactions of others.”).

Similarly, other serious developmental disabilities and men-
tal illness are equally crucial to an understanding of conduct
that violates the criminal law. See Tennard v. Dretke, 542
U.S. 274, _, 124 S. Ct. 2562, 2572 (2004) (“Evidence of
significantly impaired intellectual functioning is obviously
evidence that might serve as a basis for a sentence less than
death.”) (internal quotations omitted). See generally Stephen

mental human dignity that the Amendment protects.”); Atkins v. Virginia,

536 U.S. 304, 311 (2002) (“The Eighth Amendment succinctly prohibits

‘fe]xcessive’ sanctions. *.. . [I]t is a precept of justice that punishment for
crime should be graduated and proportioned to [the] offense.””) (internal
citations omitted). While there are doctrinal differences in the interpreta-
tion of the two constitutional texts, see supra note 19, their common core
principles suggest that either approach would yield similar analysis.

17

P. Garvey, Aggravation and Mitigation in Capital Cases:
What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1564-65
(1998) (a majority of surveyed jurors found mental illness
and extreme mental or emotional disturbance to be potentially
persuasive mitigating circumstances); James R. Acker &
Charles S. Lanier, /n Fairness and Mercy: Statutory Mitigat-
ing Factors in Capital Punishment Laws, 30 Crim. L. Bull.
299, 317-19, 327-30 (1994) (extreme emotional disturbance
and mental illness are among the mitigating factors most
frequently specified by legislatures).

In both capital and noncapital cases, mental retardation and
other mental disabilities can be essential considerations in
assessing an individual’s criminal culpability for two reasons.
First is the obvious effect that such a disability can have on an
individual’s understanding of his conduct and the ability to
control that conduct.

Second, individuals who have the disabilities did not vol-
untarily choose to be affected by them. While the etiology of
mental retardation varies widely, and in a considerable num-
ber of cases cannot be identified with specificity, virtually no
one who has the disability bears any responsibility for acquir-
ing it. See generally AAMR, Mental Retardation: Definition,
Classification, and Systems of Supports 123-37 (10th ed.
2002). Similarly, other developmental disabilities and major
mental illnesses are seldom conditions that the affected indi-
vidual has chosen or sought. See generally Michael Gelder,
Dennis Gath et al., Aetiology, in Oxford Textbook of Psychia-
try 74-104 (3d ed. 1996). *

** This stands in sharp contrast to vo intary intoxication. See Montana
v. Egelhoff, 518 U.S. 37, 57 (1996) (Ginsburg, J., concurring in the
judgment); id. at 76 (Souter, J., dissenting). The individual’s presumed
responsibility for his own intoxication means that the exclusion of con-
sideration of such evidence can be attributed to that morally culpable act.
In addition, exclusion of intoxication evidence may be thought to have
some deterrent effect. See Egelhoff, 518 U.S. at 49-50 (plurality opinion

18

Amici do not suggest that the presence of a mental disabil-
ity will always be dispositive of cases involving serious
criminal charges. Like evidence of mental illness offered in
mitigation in a capital trial, rebuttal evidence of a defendant's
mental disability on the question of mens rea will sometimes
be persuasive and sometimes it will not. Some, perhaps
many, defendants with mental retardation and other mental
disabilities will, notwithstanding their disability, have formed
the requisite mental state for the serious crime with which
they are charged. When that proves to be true, they may be
guilty of the crime for which they are prosecuted (and the
only remaining relevance of their disability may be at sen-
tencing). By contrast, when the legislature has decided that a
particular crime requires a particular mental state, and where
a defendant does not have that mental state, our traditions and
shared sense of justice will not allow us to pretend that the
mental state was present.

D. Defendants Are Entitled To An Opportunity To
Present Relevant Mental Disability Evidence.

As noted earlier, this Court has allowed substantial latitude
to the States in determining the shape of their criminal justice
systems. The constitutional limitations that constrain that
latitude in cases involving defendants with mental disabilities
are relatively modest in scope, but crucial in practice. They

per Scalia, J.). Reasonable minds can and do disagree about the moral
calculus of excluding exculpatory consideration of voluntary intoxication.
For example, in capital cases, voluntary intoxication is among the least
persuasive of mitigators in the minds of jurors. Stephen P. Garvey,
Aggravation and Mitigation in Capital Cases: What Do Jurors Think? , 98
Colum. L. Rev. 1538, 1565 (1998). See generally LaFave, supra note 26,
at 471-85, and authorities cited therein. There is no comparable
culpability in having mental retardation. See generally Paul H. Robinson,
Criminal Law 273 (1997). Nor can exclusion of evidence of the effect of
a defendant's disabling condition somehow create a disincentive to have
the disability.

19

are addressed below, starting with the narrowest resolution of
. ° 9
the instant case and proceeding to the broadest.”

1. The Constitution requires that evidence of
mental limitations be considered in assess-
ing a defendant’s mens rea.

Where the legislature has established a particular mental
state as a material element of a crime, and where the prose-
cution has offered evidence in support of its view that the
defendant had that mental state, the defendant is entitled to
present rebuttal evidence to show that he did not have that
mental state, *”

The opportunity to be heard and to present a defense is
protected both by the procedural meaning of the Due Process
Clause and the Sixth Amendment’s guarantee of a fair trial.
“That opportunity would be an empty one if the State were
permitted to exclude competent, reliable evidence bearing on
fan issue]... central to the defendant’s claim of innocence.
In the absence of any valid state justification, exclusion of
this kind of exculpatory evidence deprives a defendant of the

In the view of amici, this case can be resolved narrowly, granting
Petitioner relief from the denial of the opportunity to present rebuttal evi-
dence to the prosecution’s inferential assertion of mens rea. If that is
correct, it becomes unnecessary for this Court to address the broader
constitutional issues presented in the Petition for Certiorari. See Parker v.
Los Angeles County, 338 U.S. 327, 333 (1949) (“The best teaching of this
Court’s experience admonishes us not to entertain constitutional questions
in advance of the strictest necessity.”). However, since the broader issues
are included in the Questions Presented, amici will offer their perspective
on then briefly.

The right to consideration of such evidence is particularly crucial
when the charge involves what some States denominate as “specific
intent” crimes, see generally United States v. Bailey, 444 U.S. 394, 405
(1980), and other States identify as “intentional” crimes, see, e.¢., State v.
Bridgeforth, 750 P.2d 3, 5 (Ariz. 1988). However, amici believe that the
right to offer mental disability evidence on the issue of mens rea should
be recognized for ail defendants prosecuted for serious offenses.

20

basic right to have the prosecutor’s case encounter and sur-
vive the crucible of meaningful adversarial testing.” Crane v.
Kentucky, 476 U.S. 683, 690-91 (1986) (internal quotation
omitted).

Evidence of the effect of mental disability on a defendant’s
conduct can be relevant in two distinct and equally important
ways. The first category consists of cases in which the prof-
fered evidence regarding a defendant’s mental illness or men-
tal retardation rebuts the prosecution’s assertion by showing
that the defendant did not harbor that mental state because the
mental disability rendered him incapable of forming it. This
is the category of cases that has most frequently been
addressed by the courts.

The second category of cases involves a defendant whose
disability may not have rendered him incapable of forming
the requisite mental state, but where the proffered evidence
provides an alternative explanation for behaviors that might
otherwise be interpreted as incriminating by the trier of fact.
While this category has been addressed less frequently by
appellate decisions, it is equally vital. Triers of fact (both
juries and judges) often interpret a defendant’s behavior in
the light of their expectation of how people normally behave
in a given circumstance. or how they normally react to a
particular event. In forming these interpretations, the triers of
fact often evaluate a defendant’s actions by what they would
do if confronted by similar circumstances.

But a common feature of mental! illness or mental retar-
dation is that the individual who has that disability may not
act or respond in the same way other individuals would.
Individuals with mental illness and, in different ways, people
with mental retardation may sometimes behave in an unex-
pected, seemingly illogical manner.| When that behavior is

' See Johnny L. Matson & Virginia E. Fee, Social Skills Difficulties
Among Persons with Mental Retardation, in Handbook of Mental

21

sufficiently bizarre, laypeople may, even without the assis-
tance of expert testimony, identify it as a manifestation of the
mental illness. Yet in other cases, its relation to a mental
disability may be less apparent. Expert testimony may be
crucial in assisting the trier of fact in determining whether the
behavior under examination connotes the same mental state
that it would if the actor were an individual who did not have
the mental disability.”

In each category, the State can offer no valid justification
for prohibiting the consideration of such evidence. The state
legislature has chosen to make a particular mental state an
indispensable element of the prosecution’s case. Having
done so, the State cannot then permit the prosecution to offer
its own evidence while denying the trier of fact the opportu-
nity to consider contrary relevant, probative evidence that, if
believed, would demonstrate that a defendant did not have
that mental state. The result of the Arizona rule is to permit

Retardation 468-78 (Johnny L. Matson & James A. Mulick eds., 2d ed.
1991). The risk of misinterpreting perceptions, reactions, and behavior
can be exacerbated when the individual has both mental retardation and
mental illness. See Johannes Rojahn, Johnny L. Matson et al., Relation-
Ships Between Psychiatric Conditions and Behavior Problems Among
Adults with Mental Retardation, 109 Am. J. Mental Retardation 21, 31
(2004).

* Evidentiary rules no longer limit expert testimony to information
“not within the common knowledge of the average layman.” Compare
Bridger v. Union Ry., 355 F.2d 382, 387 (6th Cir. 1966), with Fed. R.
Evid. 702. See generally Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, S91 (1993). See also Ariz. R. Evid. 702. Nonetheless, expert
testimony can be crucially helpful when, in its absence, a trier of fact
would be likely to misinterpret facts by relying on intuitions from
common experience that may be misleading regarding a defendant with a
mental disability. See, e.g., United States v. Pino, 606 F.2d 908, 919
(10th Cir. 1979) (psychiatric testimony that a person in shock would
appear drunk). See Christopher B. Mueller & Laird C. Kirkpatrick,
Evidence 620-21 (3d ed. 2003); Jack B. Weinstein & Margaret A. Berger,
Weinstein’ s Evidence Manual § 13.02|2] (student 7th ed. 2005).

22

various other kinds of nondisability rebuttal evidence regard-
ing mens rea but to exclude mental disability evidence. This
is, in essence, a form of discriminatory treatment that is
unwarranted by any legitimate public policy.” ’

Refusal to permit consideration of a defendant’s mental
disability can transform serious crimes into de facto strict
liability offenses for individuals whose mental functioning
was substantially impaired. For example, such a rule would
allow a finding that a defendant acted “knowingly” when his
mental impairment rendered him incapable of “knowing”
whatever the offense specified.

The American Bar Association’s position on this issue is
persuasive. “Evidence, including expert testimony, concern-
ing the defendant’s mental condition at the time of the alleged
offense which tends to show the defendant did or did not have
the mental state required for the offense charged should be

** A general desire to increase the rate of convictions cannot, of course,
justify excluding exculpatory evidence for this one sub-class of defen-
dants. (The State is free to change the required mental state for a crime,
but such a change would apply to all defendants equally.) Similarly, a
desire to incapacitate defendants with mental disabilities is insufficient
justification for excluding exculpatory evidence. In most cases, a deter-
mination that the defendant did not possess the statute’s required mens rea
will not result in acquittal. Even if a defendant lacks the mens rea for a
particular charged crime, they will generally remain convictable of lesser
included offenses. Am. Bar Ass’n, Standards for Criminal Justice § 7-6.2
cmt. at 7-314 (adopted 1984). And if a defendant’s disability is so severe
that he or she lacks the mens rea for any offense, the State has other
options. As in the case of defendants who successfully raise the insanity
defense, States may seek their incapacitation under special commitment
statutes. See generally Jones \. United States, 463 U.S. 354 (1983); Am.
Bar Ass'n, Standards for Criminal Justice §§ 7-7.1 to 7-7.11 (adopted
1984).

* Lack of knowledge of commonly known facts is a characteristic of
many criminal defendants who have mental retardation. See Mentally
Retarded Criminal Defendants, supra note 24, at 431.

23

admissible.” Am. Bar Ass’n, Standards for Criminal Justice
§ 7-6.2 (adopted 1984).*? The Commentary notes that this
Standard “incorporates a simple evidentiary principle based
on a rule of ‘logical relevance.’ Except in strict liability
cases, criminal adjudication always involves determining
whether a defendant possessed the mens rea for an offense.
Therefore, evidence, including properly qualified expert testi-
mony, that tends to show a defendant did or did not have the
mental state for a charged offense should be admissible.” /d.
cmt. at 7-313.

Exclusion of such relevant exculpatory evidence deprives a
defendant who has a serious mental disability of the pro-
cedural protections of a fair trial, and also subjects that defen-
dant to punishment that is the equivalent of strict liability—
conviction and punishment of a serious offense without
personal culpability. Thus, both the procedural and substan-
tive meanings of the Due Process Clause are implicated.

2. Whether in terms of an insanity defense or
in some other form, the States must pro-
vide a meaningful opportunity to demon-
strate the relevance of a defendant’s mental
disability. —

The most constitutionally challenging issue is the status of
the insanity defense itself. The difficulty of the issue derives
from the tension between two powerful constitutional princi-
ples. The first is this Court’s practice of generally deferring
to choices made by the States in the shaping of criminal
liability under their own laws. But the second, of at Icast
equal gravity, is the longstanding tradition in Anglo-Ameri-
can law of recognizing the potentially exculpatory effect of

* See also Model Penal Code § 4.02(1) (official drft. & rev. cmts.
1985) (“Evidence that the defendant suffered from a mental disease or
defect is admissible whenever it is relevant to prove that the defendant did
or did not have a state of mind that is an element of the offense.”).

24

the fact that a defendant had a serious mental disability. As
noted earlier, amici believe that this history constitutes a
“principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.” See
Patterson, 432 U.S. at 202.

While the core principle that mental disability may reduce
a defendant’s personal culpability so significantly that it re-
quires acquittal has “deep roots in our common-law heritage,”
see Medina, 505 U.S. at 446, the precise contours of its
implementation have varied over time, and from State to
State. But those variations do not, and cannot, undermine the
basic principle that has been recognized in our law for
centuries.

How, then, is this basic principle to be enforced in the
modern constitutional context?

One possible constitutional approach would identify the
longest-standing and most widely-adopted formulation of the
insanity defense as a minimum constitutional floor, below
which the States would be prohibited from descending. The
most obvious candidate for implementing such a constitu-
tional rule would be the formulation in M’Naghten. Such a
constitutional holding would permit States to experiment with
the formulation (and procedural implementation) of the insan-
ity defense, while requiring that they provide to defendants at
least its minimum protections.

An alternative to that constitutional approach would be to
focus on the functionality of a State’s protection of defen-
dants with serious mental disabilities, rather than on its form
or wording. Such analysis would have two components.

The first part of this approach would begin with the tradi-
tions developed under Anglo-American law over time. If a
State adopts a formulation of a mental disability defense
grounded in our historical traditions, such as the basic
M’ Naghten test or that of the Model Penal Code, it would be

25

deemed to be protected by a constitutional safe harbor,
protecting its substantive law from federal constitutional
challenge.”

If, however, a State chooses to adopt a more restrictive
formulation of the defense, or to abolish it altogether, a
constitutional challenge might occasion a more searching
inquiry into whether the laws of the State provided adequate
practical protection to the interests of defendants whose
culpability was impaired by serious mental disabilities. Part
of that inquiry might include judicial exploration of the actual
level of availability of mens rea defenses in criminal trials in
the State.””

To deny defendants with mental disabilities an opportunity
to explain their disabilities’ relevance imposes a draconian
regime of conviction without personal culpability—essen-
tially strict liability—and does so without any of the justifica-
tions generally offered for strict liability in those areas of law
where it is tolerated. There is no justification in our historical
traditions, Or in contemporary principles of fundamental fair-
ness, that would warrant such a result.

* This would obviously protect the vast majority of the States today,
since almost all have adopted either the Model Penal Code approach or
a formula.on of the M’Naghten test that includes its basic contours.
Similarly, it would encompass the formulation of M'Naghten codified in
the federal Insanity Defense Reform Act of 1984, 18 U.S.C. § 17 (1984).
It would also protect States that adopt the basic principles of the insanity
defense but change its terminology. See, ¢.g., Pouncey v. State, 465 A.2d
475 (Md. 1983).

” See generally Peter Heinbecker, Two Years’ Experience under Utah's
Mens Rea Insanity Law, 14 Bull. Am. Acad. Psychiatry & L. 185, 190
(1986) (suggesting the importance, in the initial experience under the stat-
ute, of bargaining for insanity pleas); Henry J. Steadman, Margaret A.
McGreevy et al., The Impact of Abolishing the Insanity Defense in Mon-
tana, in Before and After Hinckley: Evaluating Insanity Defense Reform
121-37 (1993).

26
CONCLUSION

For the foregoing reasons, amici urge that the judgment of
the Arizona Court of Appeals be reversed.

Respectfully submiftes,

Of Counsel: JAMES W. ELLIS

Counsel of Record
NORMAN C. BAY
MICHAEL B. BROWDE
STEVEN K. HOMER
CAROL M. SUZUKI
1117 Stanford, NE
Albuquerque, NM 87131
(505) 277-2146

Counsel for Amici Curiae

RICHARD A. GONZALES

la
APPENDIX

The American Association on Mental Retardation
(“AAMR”) is the nation’s oldest and largest interdisciplinary
organization of professionals and other persons who work
exclusively in the field of mental retardation. AAMR
promotes progressive policies, sound research, effective
practices, and human rights for people with intellectual
disabilities.

The Arc of the United States (formerly known as the
Association for Retarded Citizens of the United States),
through its 875 state and local chapters, is the largest national
voluntary organization in the United States devoted solely to
the welfare of the more than seven million children and adults
with mental retardation and their families.

The National Disability Rights Network (“NDRN”),
formerly the National Association of Protection and Advo-
cacy Systems (“NAPAS”), is the membership association of
protection and advocacy (“P&A”) agencies which are located
in all 50 states, the District of Columbia, Puerto Rico, and the
territories (the Virgin Islands, Guam, American Samoa and
the Northern Marianas Islands). P&As are mandated under
various federal statutes to provide legal representation and
related advocacy services on behalf of all persons with
disabilities in a variety of settings. In fiscal year 2004, P&As
served over 76,000 persons with disabilities through individ-
ual Case representation and systemic advocacy. The P&A
system comprises the nation’s largest provider of legally
based advocacy services for persons with disabilities.

The Bazelon Center for Mental Health Law is a national
public interest organization founded in 1972 to advocate for
the rights of individuals with mental disabilities. The Bazelon
Center has engaged in litigation, administrative advocacy,
and public education to promote equal opportunities for
individuals with mental disabilities. Much of the Center’s

2a

work involves efforts to remedy disability-based discrim-
ination through enforcement of the Americans with Dis-
abilities Act.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0265%3A08. Public record. Not legal advice.