Execution by Accident: Evidentiary and Constitutional Problems with the 'Childhood Onset' Requirement in Atkins Claims

Abstract

The article discusses claims by capital defendants asserting that they are mentally retarded (MR) and thus cannot be executed under the 2002 Supreme Court holding in Atkins v. Virginia. Courts hearing such claims require proof that any intellectual deficits first occurred during childhood. This “childhood onset” prong is problematic for practical and theoretical reasons. As a practical matter, courts often improperly: (a) expect (rarely available) IQ test results dating from childhood; (b) dismiss MR proof if the defendant has minimal day-to-day competence, despite the medical consensus that MR persons can drive, cook, etc.; and (c) reject Atkins claims because the defendant also suffers from mental illness, incorrectly supposing that such illness can be singled out as the sole cause of intellectual deficits. The article suggests several rules regarding burden-shifting and admissibility to address these problems.

More fundamentally, the requirement itself is irrational and arguably constitutional. It means that a capital defendant with brain injury at age 17 will be treated differently from an identically challenged person injured at 19. In Atkins, the Supreme Court gave two reasons why MR and execution don’t mix: MR (i) reduces culpability and deterrability, and (ii) interferes with a defendant’s ability to get a fair trial. The onset requirement has no relevance to any of these reasons; it was adopted “accidentally” by states which simply copied without analysis a medical definition designed for distinct clinical purposes and which is referenced but not required by Atkins itself. The requirement arguably leads to “cruel and unusual punishment” under the Eighth Amendment, especially in light of the very recent Supreme Court cases involving juvenile defendants. Under Equal Protection challenge, it may merit heightened constitutional scrutiny since it burdens the fundamental right to life. Even under the more permissive “rational basis” standard, the onset requirement is constitutionally vulnerable.