Atkins v. Virginia
and
Roper v. Simmons
Capital punishment of mentally retarded
and juvenile offenders
Atkins v. Virginia, 536 U.S. 304 (2002)
 Issue: Does imposing the death penalty on a mentally retarded
offender constitute “cruel and unusual punishment” as prohibited
by the Eighth Amendment?
 The facts
 Daryl Renard Atkins and William Jones abducted the victim,
robbed him, and shot him 8 times
 Both Atkins and Jones were indicted for first-degree murder
 Jones escaped the death penalty by pleading guilty in
exchange for his testimony against Atkins
 Both Atkins and Jones testified that the other was the
shooter, but the jury believed Jones and convicted Atkins


Atkins’ statement didn’t match what he told police upon arrest
Jones was wise enough not to make an initial statement to the
police – his testimony was more coherent than Atkins’, and thus
more credible
Atkins trial – penalty phase
 The State’s evidence
 Victim impact evidence
 Aggravating circumstances
 Future dangerousness (shown by prior convictions,
victim testimony)
 Vileness of the offense (shown by the trial record)
 The Defense’s evidence
 Expert testimony: Dr. Evan Nelson, forensic
psychologist
 State rebuttal evidence (at resentencing)
 Expert testimony: Dr. Stanton Samenow
Dr. Nelson’s testimony (Atkins)
 Research


Interviews – with Atkins, members of his
family, deputies at the jail where Atkins had
been incarcerated for the past 18 months)
Records – school, court

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Investigative reports
Atkins’ statement to police
IQ Test – Atkins scored a 59
 Conclusion: Atkins is “mildly mentally
retarded.”
Dr. Nelson’s evidence – IQ test
 Wechsler Adult Intelligence Scales test (WAIS-III)
 Standard in U.S. for assessing intellectual functioning
 Scoring: add points earned on 14 subtests, convert raw
score to scaled score using formula
 Full-scale score range: 45-155
 Mean score: 100 (believed to indicate average level of
cognitive functioning)
 Atkins’ full scale score: 59
 Lower than over 99 percent of the population
 Falls within the range identified in the American
Psychiatric Association’s description of mild mental
retardation (50-70)
Definitions of mental retardation
 American Association of Mental Retardation


Subaverage intellectual functioning
Limitations in 3 or more adaptive skill areas

Including communication, self-care, social skills, self-direction,
health and safety, functional academics, work
Manifests before age 18
 American Psychiatric Association – definition similar to above
 “Mild” mental retardation: IQ of 50-55 to about 70
 World Health Organization – definition similar to above
 Acknowledges that standardized intelligence tests are
conventional way to estimate degrees of mental retardation
 Statutory definitions generally conform to clinical definitions
 Many statutes include cutoff IQ of 70

Dr. Nelson’s research
 Used all available evidence


Observation – school and court records, interview with Atkins, and
interviews with Atkins’ family and guards
Testing – standardized IQ test, conventional way to estimate degree of
mental retardation
 WAIS-III instrument Nelson used is well-established

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
Standard means of measuring cognitive ability in the United States
Up-to-date – last revised in 1997
Population used to standardize the test was intended to be
representative of U.S. adult population

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1981 version – 1,800 adults, ages 16-74; 1997 version – ages 16-89
No published criticisms of sample adequacy; only positive reviews
 Strength – focus on accepted, validated definitions and measurements
 Possible weakness – perhaps a greater focus on adaptive skills is
necessary for a more well-rounded assessment of mental retardation
Dr. Samenow’s testimony (Virginia)
 Research
 Observation – 2 interviews with Atkins, school records,
interviews with correctional staff
 Testing – questions taken from 1972 Wechsler Memory
Scale (WMS)
 Conclusions
 Atkins of average intelligence, not mentally retarded
 Antisocial personality disorder
 Atkins is “did poorly [in school] because he did not
want to do what he was required to do”
Dr. Samenow’s research
 Did not use all available evidence (family interviews, court
records, IQ test) – suggests biased selection of evidence
 Used questions from Wechsler Memory Scale rather than a
conventional IQ test
 Did not even use full test, or latest version (updated 1997)
 Did not measure intellectual ability as a whole, only one
component of (memory)
 Conclusions based on subjective (likely biased) judgments and
a possibly outdated instrument, rather than on clinical definitions
and widely accepted methods
 Perhaps if Samenow had challenged the accuracy of the IQ test
results, and demonstrated that the measurements and methods
he used were superior, his testimony would be stronger
Court’s opinion
 Eighth Amendment requires punishment to be proportionate to crime,
as assessed by current and evolving standards
 State legislation is best objective evidence of contemporary values


Since 1989 Penry decision (allowing execution of mentally retarded
offenders), large number of states prohibited execution of mentally
retarded persons, few permitted it – consistent change
Court finds consensus: mentally retarded persons can’t be executed
 Court must ask if there is reason to disagree with prevailing judgment


Mentally retarded persons have diminished capacities to understand
and process information, communicate, learn from experience, engage
in logical reasoning, control impulses, understand others’ reactions
Executing them does not “measurably contribute” to capital punishment
goals:

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Retribution- they are less morally culpable, therefore not deserving of
most extreme sanction available
Deterrence- they can’t make calculated decisions such that death
penalty would deter them (controlling impulses, logical reasoning,
learning from experience)
Risk of wrongful execution increases
Influence of scientific evidence
 Expert testimony did not bear as heavily on the Court’s decision as
evidence of nationwide consensus did

Experts debated whether Atkins was mentally retarded, while the Court
decided whether the mentally retarded may be capitally punished
 General scientific knowledge of the intellectual and behavioral
limitations of mentally retarded persons supported the national
consensus and the Court’s assertions about how an offender’s
cognitive impairments influence his culpability
 In 2005, the Court decides the constitutionality of executing juveniles in
Roper v. Simmons


Relies heavily on its reasoning in Atkins
Evidence shows the two populations demonstrate similar
developmental deficiencies that affect their culpability
 Possible implications: Will Atkins raise the number of defendants
claiming to have mental deficiencies? increase the legal system’s
reliance on expert testimony?
Roper v. Simmons, 543 U.S. 551
(2005)
 Issue: Is it permissible, under the Eighth and Fourteenth Amendments,
to execute a juvenile offender who was over 15 but under 18 years old
at the time the offense was committed?
 The crime

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Christopher Simmons, 17-year-old high school junior, discussed with
friends his desire to commit a burglary and murder
Late one night, Simmons and a friend, Charles Benjamin, entered the
home of the victim, Shirley Crook
Simmons and Benjamin used duct tape to cover the victim’s eyes and
mouth and bind her hands, and drove her in her minivan to a state park
They covered her head with a towel, wrapped her whole face in duct
tape, bound her hands and feet with electrical wire, and threw her from
a bridge to drown in the Meramec River
Simmons later bragged to friends that he killed the victim “because the
bitch seen my face”
Once arrested, Simmons confessed to the crime and agreed to reenact
it on video
 At trial, Simmons was tried as an adult, and a jury found him guilty of
murder – State sought death penalty
Roper trial – penalty phase
 State’s evidence – aggravating factors
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Murder committed for money
Murder committed for purpose of avoiding lawful arrest
Murder was depraved, vile, horrible, inhuman
 Simmons’ evidence – mitigating factors
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No prior offenses
Responsibilities caring for younger brothers and grandmother
Relationships with family and friends
 Age – mitigating or aggravating?

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Simmons: juveniles can’t drink, serve on juries, or see certain
movies, because they aren’t responsible enough in eyes of
legislature
State: 17-year-old murderer is a scary thought, an aggravating
factor
 Simmons sentenced to death, post-judgment relief denied
Roper after Atkins
 Atkins prohibited execution of mentally retarded persons
 Simmons argued Atkins reasoning established
unconstitutionality of imposing death penalty on juveniles who
were under 18 at time of offense
 Thompson (1988) forbid imposing death penalty on juveniles
under 16 at time of offense – Simmons wanted to extend to
16 and 17 year olds as well
 Missouri Supreme Court set aside the death sentence, citing a
national consensus
 18 states bar execution of juveniles
 12 states bar all executions
 5 states established 18 as minimum age
 0 states lowered minimum age of execution below 18
 Supreme Court affirmed
Roper Court’s opinion
 Objective indicia of consensus (legislation): juveniles
are less culpable than the average criminal (as the
mentally retarded were found to be in Atkins)

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18 states prohibit juvenile death penalty
12 states prohibit death penalty altogether
20 states have no formal prohibition, but the practice is
infrequent
Rate of change in state legislation was much faster
from Penry to Atkins than from Stanford to Roper
 Change is still consistent and significant
 More states already prohibited executing juveniles
than the mentally retarded
Roper Court’s opinion

Independent judgment of Court: no reason to doubt consensus

3 differences between juveniles under 18 and adults show juveniles can’t reliably
be classified among worst or most deserving offenders

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Justifications for death penalty don’t apply to juveniles with same force as adults
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Retribution- diminished culpability means most severe penalty is disproportionate
Deterrence- impact unclear, but evidence suggests they’re less susceptible
Risk of error – executing juvenile despite insufficient culpability – is
“unacceptable likelihood” if individualized considerations are allowed

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Impetuous and ill-considered decision-making
Susceptible to negative influences and outside pressures
Transitory character means personality traits are more temporary
Court wants to ensure age is a mitigating, not aggravating, factor for juveniles
If expert psychologists may not diagnose a juvenile under 18 with antisocial
personality disorder, courts cannot allow jurors to issue far graver condemnation
Age 18 limit is both over- and under-inclusive, like any categorical rule, but a line
must be drawn, and this is where society draws the line for many other purposes
World community – U.S. the only country still officially allowing juvenile death
penalty
Research – Amici Curiae Brief
 Filed by 8 highly reputable professional associations
oldest and largest in their fields (including the American
Medical Association, American Psychiatric Association,
American Society for Adolescent Psychiatry, etc.)
 More a summary of existing knowledge than a single study
 Observational – e.g. Cauffman study found adolescents
deficient in responsibility, perspective, and temperance,
psychosocial maturity incomplete until age 19
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1000 adults and adolescents
Possible problems: sample may not be representative,
measurement methods may not eliminate researcher bias
Brain imaging

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More active amygdala (related to aggression, anger, fear), less
active frontal lobes (related to impulse control, risk assessment,
moral reasoning) than adults
Frontal lobes are last to mature (shown by myelination,
pruning)
Research – Amici Curiae Brief

Conclusions

Adolescents inherently more prone to risk-taking behavior, less capable of
resisting impulses

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To extent that adolescents who commit capital offenses suffer from psychological
disturbances, they can be expected to function at sub-standard levels

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Deficiencies skew adolescent risk-benefit analysis (too much weight to immediate
gain, not enough to future loss)
Stress, emotion, and peer pressure weigh more heavily on adolescents than
adults, skew risk-benefit analyses further
Normal adolescents can't be expected to transcend their own capacities to
operate at same level of impulse control or judgment as adults
Adolescents suffering from brain trauma, dysfunctional home life, or violence can't
be expected to operate even at standard adolescent levels
Executing older adolescents does not serve recognized purposes of death
penalty

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Atkins reasoning on mentally retarded individuals applies: diminished capacities to
understand and process information, to communicate, to abstract from mistakes
and learn from experience, to engage in logical reasoning, to control impulses and
to understand the reactions of others
Thompson reasoning on juveniles under 16 applies: less culpable because of their
inexperience, emotionality, susceptibility to peer pressure, and impulsivity
Research – Amici Curiae Brief

Combined with knowledge referenced in Atkins, scientific evidence crucial to
Roper
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Evidence of same deficiencies in mentally retarded individuals and juveniles
allowed Court to extend reduced culpability and ineligibility for death penalty from
one population to the other
Court credits many assertions made by amici (scientific support for existing
generalizations)
Possible weaknesses


Juvenile capital offenders most likely manifest deficiencies more than average
adolescent – Does this strengthen Simmons’ case, or State’s?
Some evidence of adolescent population inapplicable to Simmons’ case

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Impetuousness, impulse control – Simmons clearly premeditated the murder
Susceptibility – Simmons clearly initiated the crime (but peer pressure could
operate indirectly, evidenced by bragging and involvement of friends in crime)
Possible implications of using science to reduce culpability -- where to draw the
line?

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To what extent can psychology and biology excuse crime?
How much control can legal system expect offenders to exercise over biological
inclinations?
Path of reasoning could, in extreme, lead to fatalistic view of humanity: humans
nothing more than biological functions, never responsible for actions or decisions