Consistency in the
Application of the Death Penalty to Juveniles and the
Mentally Impaired: A Suggested Legislative Approach
58 U. Cin. L. Rev. 211
||John J. Gruttadaurio
... The Supreme Court's decision in Gregg v. Georgia
allowed state legislatures to enact death penalty
statutes that would pass constitutional muster under the test of Furman
v. Georgia, and provided guidelines on structuring a death
penalty statute that would be constitutional. ... In Lockett
v. Ohio, the Court reviewed an Ohio statute which mandated the death
penalty unless the sentencing body found at least one of three
statutorily mandated mitigating circumstances. ... The briefs filed in the
Penry case before the Supreme Court indicate that for two
distinct reasons the Texas scheme of capital sentencing did not allow the
jury to fully consider Penry's mental impairment specifically as
mitigation. ... The above cases demonstrate the need for state statutes
that take the issue of mental impairment out of the aggravating-mitigating
circumstance balancing in capital sentencing. ... As dementia involves the
loss of mental capacity to the extent of interference with social
functioning, and paranoid ideation which can result in physical attacks by
the sufferer, a person rendered a functional juvenile after the age of
eighteen should be treated no differently legally than one whose disorder
begins while a minor. ... The proposal thus requires the trier of fact to
evaluate the defendant's mental illness and its effects along a continuum
of adultjuvenile capacity, with juveniles assumed to have a significantly
reduced capacity in these areas, the same assumption made by the Thompson
[*211] The Supreme Court's decision in Gregg v. Georgia
n1 allowed state legislatures to enact death penalty
statutes that would pass constitutional muster under the test of Furman
v. Georgia, n2 and provided guidelines on structuring a death
penalty statute that would be constitutional. The guidelines are
based on the concept of individualized sentencing. Individualized
sentencing requires that the sentencing body weigh all of the appropriate
facts relevant to the individual defendant in determining the sentence. n3
Gregg dealt with the statute that he had been developed by the
Georgia legislature in response to Furman. The statute
established a capital sentencing procedure that included automatic appeal
to the Georgia Supreme Court n4 and a bifurcated proceeding whereby the
same trier of fact decides guilt and sentence, but at different
proceedings. n5 The statute also provided a list of aggravating
circumstances, and mandated that the trier of fact must find at least one
such circumstance beyond a reasonable doubt in order to impose the death
sentence. n6 The statute also authorized the trier of fact to consider
relevant mitigating circumstances that could outweigh the aggravating
circumstances and render the death sentence inappropriate in a particular
case. n7 According to Gregg, the last two factors -- the
consideration of aggravating and mitigating circumstances -- are
particularly important, because they minimize the risk of arbitrariness by
suitably limiting and directing the discretion [*212] of the
sentencing body. n8 Other states have enacted similar legislation. n9
As a part of this process, many statutes list a number of mitigating
circumstances that the trier of fact may consider and weigh against the
aggravating circumstances. n10 Further, some have provided a blanket
exclusion of certain categories of offenders, particularly in the case of
persons under a given age at the time of the commission of the offense.
n11 Additionally, the Supreme Court recently held that a state could not
impose the death sentence on a defendant who was under the age of sixteen
at the time of the offense without the state legislature's specific
The Court and the state legislatures, however, have chosen not to give the
same protection to persons who, as a result of mental impairment, were functionally
juveniles at the time of the commission of the capital offense. n13
Although some states specifically categorize mental condition at the time
of the offense as a mitigating circumstance, n14 and others statutorily
preclude the execution of an inmate who has become insane subsequent to
conviction, only one state [*213] treats mental impairment at
the time of the offense as a blanket exclusion. n15
The purpose of this Editorial Note is to argue that the same
considerations that exclude persons from capital sentencing because of age
apply at least equally, and probably more strongly, to those who are
functional juveniles because of mental impairment. This Note will begin
with a summary of the treatment by the Supreme Court of mitigating
circumstances in general, and of the mentally impaired in capital cases,
and a discussion of the Court's deference to the states regarding this
issue. It will then consider how the states have dealt with the issue up
to now. Those considerations will indicate why strong legislative steps
are necessary. Finally, this Note will propose a statutory scheme to
rectify the situation by treating the mentally impaired in capital cases
on an equal plane with the treatment of juveniles.
I. MITIGATION AND MENTAL IMPAIRMENT: RECENT SUPREME COURT CASES
A. Woodson, Sumner, Lockett, and Eddings
Since its decision in Gregg v. Georgia, n16 the Supreme Court has
had the opportunity to focus on one particular aspect of capital
sentencing procedure -- the consideration by the sentencing body of
mitigating circumstances. These cases show that the Court has required
careful consideration of all mitigating factors.
The foundation for requiring consideration of mitigating factors was
provided in two unrelated cases that struck down statutes which made the death
penalty mandatory in certain circumstances. n17 In Woodson v.
North Carolina, n18 the Court reviewed a statute which made the death
penalty mandatory in all cases of first degree murder, including
the felony-murder committed by the defendant Woodson. n19 In Sumner v.
Shuman, n20 the defendant was already imprisoned for life [*214]
without possibility of parole when he committed another murder, killing
another inmate. n21 The Nevada capital sentencing statute mandated the death
penalty where an inmate for life committed murder, n22 but the
Supreme Court held that such a mandatory sentence violated the Eighth and
Fourteenth Amendments. n23
In both Woodson and Sumner, the rationale of the Court
was that a mandatory death sentence was contrary to the notion of
individualized capital sentencing. n24 The Court in Sumner
contrasted the mandatory sentencing statutes with those allowing guided
discretion, such as the Georgia statute upheld in Gregg. Those
that were upheld permitted the consideration of mitigating circumstances
and a range of factors individual to the defendant, n25 while those that
were found infirm did not. n26
After deciding that mitigating circumstances were vital to proper capital
sentencing, the Court was asked to decide how vital. In Lockett v.
Ohio, n27 the Court reviewed an Ohio statute which mandated the death
penalty unless the sentencing body found at least one of three
statutorily mandated mitigating circumstances. n28 The Court held that the
sentencing body could not constitutionally be precluded from considering, as
a mitigating factor, any aspect of the defendant's character or
record or any circumstance of the offense offered by the defendant as a
sentencing factor in his favor. n29 The emphasis of the Court on treating
this information in mitigation indicates that the sentencing body
must not simply have the information, but also must be told how to apply
The mandate of guiding the sentencing body's use of mitigating factors was
confirmed in Eddings v. Oklahoma. n30 There, the trial judge, who
was responsible for sentencing, refused to consider evidence of the
defendant's difficult family history and emotional disturbance. n31 The
Supreme Court reversed, holding that while the sentencing body may
determine the weight given to particular mitigating [*215]
factors, it cannot give them no weight at all. n32 The Court stated that
while the applicable statute comported with Lockett insofar as it
allowed the presentation of all mitigating circumstances, Lockett
went further, and required that the sentencing body actually listen to
such evidence. n33 Most recently, in Hitchcock v. Dugger, n34 the
Court unanimously affirmed the holding in Eddings, holding that
for a sentencing body, in this case both an advisory jury and the trial
judge, not to consider all proffered mitigating evidence was
The mandate of the Supreme Court, then, is that all mitigating evidence
presented by the defendant must be considered by the sentencing body
specifically as mitigation in the sentencing phase. The particular
difficulty with mental impairment as a mitigating circumstance, as will be
shown, is that after a defendant's mental condition is put to the trier of
fact twice -- as to competency to stand trial and as to an insanity plea
-- that body is unable to once again consider this factor as mitigation.
The mandate of Lockett is that such evidence be considered
specifically in mitigation, and that the sentencing body must be guided to
do so. This is not happening, and that failure indicates the need for
different treatment of mental impairment in capital sentencing.
B. Woods v. State n36
The Supreme Court first had the chance to examine the constitutionality of
imposing the death penalty where the defendant was
mentally impaired in an appeal of a Florida case, Woods v. State.
n37 The Court, however, denied the petition for a writ of certiorari. n38
Woods, who was convicted of first-degree murder, was no more than sixteen
at the time of the offense. n39 Evidence presented to the trial court
indicated that he had suffered childhood seizures that had [*216]
resulted in brain damage and had an IQ of below 73, which is within the
borderline retardation range. n40
In dissenting from the denial of the writ, Justice Marshall stated that
both the youth of the petitioner and his mental condition precluded the
imposition of the death sentence under the Eighth Amendment's prohibition
of cruel and unusual punishment. n41 He went on to say that the
considerations behind precluding the death penalty
because of age, a lesser capacity to control conduct and to think in
long-range terms, were particularly compelling in light of the
petitioner's mental condition. n42
C. Penry v. Lynaugh n43
As of this writing, the Court was in the process of undertaking its most
comprehensive review of the question of capital punishment as it relates
to the mentally impaired. In Penry v. Lynaugh, the U.S. Court of
Appeals for the Fifth Circuit flatly rejected an assertion that the
execution of a mentally retarded defendant constituted cruel and unusual
punishment. n44 Despite the fact that the jury did not consider a major
thrust of Penry's evidence specifically as mitigation, n45 the court found
itself bound by its own precedent and refused to vacate the sentence as
violative of Lockett and Eddings. n46
Johnny Penry was an adult when he allegedly murdered a Texas woman in the
course of committing aggravated rape in the woman's home. n47 He forced
his way into her house, held a knife to her throat, and after a struggle,
knocked her to the floor and stabbed her with a pair of scissors. n48 He
then dragged her into her bedroom, and after beating and raping her,
stabbed her in the chest with the scissors while sitting on her. n49 In
two separate confessions, [*217] Penry stated that he had
killed the woman so that she would not be able to identify him to the
Evidence presented in the trial court indicated that Penry had been
retarded since very early childhood. n51 Three psychiatrists testified as
to Penry's IQ and, based on individual tests, each placed his IQ between
51 and 56, n52 which is in the bottom 1% of the United States population.
n53 One psychiatrist testified that Penry's speech was primitive and
unsophisticated, n54 and that during an examination he could not spell
simple words such as "cat" and "dog." n55
In terms of Penry's emotional maturity, one psychiatrist estimated that
Penry had the social maturity of a mine- or ten-year-old. n56 Penry was
described as having great difficulty controlling himself, and as being
impulsive. n57 The same doctor indicated that Penry did not possess the
ability to say, "Wait a minute, I'd better not do this." n58
Additional mitigating evidence came from Penry's family. His mother
testified that as a child Penry had exhibited aggressive behavior that was
uncontrollable. n59 He had poked other children with sharpened pencils,
punched and bit other children, and even started fires. n60 His conduct at
times was bizarre. n61 His mother also testified that she had not been
able to keep him in public schools, due to both his behavior and the fact
that he lacked the learning capacity of other children. n62 Finally, she
testified that Penry's father had abused the boy. n63
Significantly, the opinion of the Court of Criminal Appeals of Texas makes
no mention of Penry's mental condition or the other [*218]
mitigating factors in its statement of the facts of the case, n64 and
makes only cursory mention of his retardation in discussing the punishment
phase of the proceedings. n65 It is not until the opinion of the United
States Court of Appeals for the Fifth Circuit in a habeas corpus action
that it is stated that Penry could not read or write, had never finished
even the first grade, and most importantly had an IQ indicating mild to
moderate retardation. n66 That court also noted that there had been
testimony to the effect that Penry had been beaten as a child and
exhibited strange behavior both as a child and as a teenager. n67
The Court of Criminal Appeals of Texas' opinion dealt at some length with
Penry's mental condition as it related to his competency to stand trial,
n68 and to the guilt-innocence phase and his insanity defense, n69 but
hardly considered the issue with regard to sentencing. It held that even
if Penry was mildly or moderately retarded, that fact alone did not make
imposition of the death penalty improper. n70 The court
reasoned that evidence of Penry's mental condition had been fully
presented to the jury. n71 The problem, however, was the specific setting
in which the evidence was presented, and how the jury felt that they
should treat the evidence.
The briefs filed in the Penry case before the Supreme Court
indicate that for two distinct reasons the Texas scheme of capital
sentencing did not allow the jury to fully consider Penry's mental
impairment specifically as mitigation. Both reasons are rooted in the
Texas statute. The Texas scheme provides that in the sentencing phase the
trier of fact must find that (1) the conduct of the defendant that caused
the death was committed deliberately and with a reasonable expectation
that death would result; (2) the defendant would be a continuing criminal
threat to society; and (3) if raised as an issue, the defendant's conduct
was unreasonable even given any provocation on the part of the deceased.
n72 These points are referred to as the three "Special Issues"
that must be found in order to impose the death penalty.
[*219] The first problem with the Special Issues procedure was
that it did not allow the jury to consider the defendant's evidence
specifically as mitigation. The jury was told from the outset of the trial
that in its sentencing decision the only issue was its answers to the
three questions. n73 However, the very nature of the Special Issues meant
that evidence of mental retardation actually indicated
that the Issues should be answered in the affirmative, in favor of the death
penalty, a point argued to the jury by the prosecution. n74
For example, one of the Special Issues deals with predicting future
dangerousness. The Court of Criminal Appeals of Texas found that Penry's
failure to reform was sufficient evidence for the jury to find in the
affirmative on that Special Issue. n75 However, this evidence had been put
on in mitigation, as the psychiatrists stated that this failure was a
definite symptom of mental retardation. n76 Therefore,
the jury was told that this mitigating circumstance should be used
essentially as an aggravating circumstance. n77 Such an effect had two
important results. First, the jury did not use mitigating evidence in
mitigation. Second, defense counsel could be chilled from presenting
mitigating evidence if he knew that it would likely be used against his
The second major problem with the Special Issues scheme is that the jury
is not provided with the guidance as to the use of mitigating evidence
required by Lockett and Eddings. n78 The court gave no
instructions as to where or how mitigating circumstances were to be
applied to the Special Issues deliberations. n79 The statute provided no
balancing if the Special Issues were answered in the affirmative. As
suggested by Penry, if a juror believed that a mentally retarded person
should not be executed, they had to vote "no" on one of the
[*220] Special Issues at random, even if they knew the proper
answer to the specific Issue to be "yes." n80
Therefore, there existed a substantial risk that a juror could believe
that it could not give independent mitigating effect to Penry's mitigating
evidence of mental retardation and difficult family
history. n81 Since the mitigating evidence actually supported affirmative
answers to the Special Issues, and since the trial judge refused to
instruct the jury as to mitigation, the framework of the Special Issues
allowed the aggravating qualities of Penry's evidence to be considered,
while the mitigating qualities could not be. n82
The State of Texas argued that the Special Issues framework did not
unconstitutionally hinder Penry. The basic argument was that Penry had
been allowed to present all of the mitigating evidence that he wanted to,
so no specific instructions on mitigation were necessary. n83 The statute
put before the jury all possible relevant information, n84 and the
defendant couldargue that that information supported a negative answer to
one or more of the Special Issues. n85
This argument, hoverer, disregards the primary lesson of Lockett
and Eddings, which is that mitigating evidence must be considered
specifically as mitigation. n86 The state argued that other than its use
as to the Special Issues, the only other purpose of mitigating evidence
was to influence the jury to dispense mercy regardless of its answers to
the Special Issues. n87 While unintentional, this is precisely Penry's
argument. That is, a system that precludes a jury's decision in favor of
life as a result of the sentencing procedure renders that procedure
The defendant argued that the Texas system was as inequitable as the
procedures invalidated in Eddings and Hitchcock. A list
of questions focusing on aggravation or lack thereof while not separately
considering mitigation was seen as being as least as restrictive as the
limited list of mitigating circumstances provided for in Hitchcock.
n88 The sentencing body must have the means to apply mitigating evidence
[*221] in mitigation, and, like Hitchcock, this
scheme restricts that ability. n89 Given these limitations, the defendant
contended that there was no reason to believe that the jury would not
mirror the judge in Eddings and disregard the mitigating
evidence. n90 As a result, Penry argued for the Texas scheme to be held
Beyond the specific facts of the Texas statute, an additional argument
made in Penry was that executing a mentally retarded defendant
was per se unconstitutional as a violation of the Eighth and
Fourteenth Amendments. Two reasons were offered for this position. First,
a mentally retarded individual possesses a deficit in adaptive behavior
and should accordingly not be held fully accountable for his mistakes. n91
As stated in one amicus brief, both a substantial reduction in the mens
rea involved in a criminal act and the impairment of an individual's
ability to comprehend his acts and their consequences indicate that a less
severe penalty is warranted. n92 Mental retardation in
every case results in such a substantial reduction and impairment, and
thus in every case demands a less severe penalty. n93
The second reason is that the execution of a mentally retarded person
serves no valid penological purpose. n94 Retribution must relate to the
degree of blameworthiness, and the mentally retarded are by definition
less blameworthy. n95 Also, the likelihood of deterrence is significantly
reduced when the population to be deterred is unable to conform its
conduct to what is expected. n96 With no valid purpose and
disproportionate application, Penry argues, the execution of the
mentally retarded is seen as cruel and unusual punishment.
[*222] Faced with this situation, the Supreme Court is likely
to strike the Texas statute as violative of Lockett and Eddings,
but is unlikely to impose a blanket prohibition on the execution of the
mentally retarded. The Texas statute does not guide the discretion of the
sentencing body as to mitigating evidence, and does not assure that
mitigating evidence will be considered specifically in mitigation.
However, a blanket prohibition is a much greater step. The Court is
unlikely to want to draw the line as to what level of mental impairment
creates an exclusion, and is therefore likely to leave the question up to
the individual states. n97
As a result, the effect of the Penry decision will be to further
strengthen the Court's insistence on the full consideration of mitigating
circumstances. However, as to the particular factor of mental impairment,
defendants will be left with no greater protection than a properly drawn
and applied sentencing statute currently provides. Since that protection
is clearly inadequate, n98 this problem must be addressed legislatively.
II. FEDERALISM AND CAPITAL SENTENCING
The actions of the Supreme Court that leave the matter of capital
sentencing of the mentally impaired primarily to the states is consistent
with the Court's long-standing belief that most aspects of capital
punishment are properly questions for the states. The basic constitutional
concern -- whether the death penalty is per se
unconstitutional under the Eighth Amendment n99 -- was answered in Gregg
v. Georgia. n100 There, the Court held that death as a punishment was
not invariably cruel and unusual. n101 The Court asserted that the penalty
was consistent with evolving standards of decency and was in accord with
the dignity of man. n102
[*223] That having been decided, the Court discussed the
important role of the states in this area. The Court found widespread
endorsement of the penalty itself in the re-enactment of death
penalties in thirty-five states after the Furman
decision. n103 It stated that it should, and would, defer to the judgment
of the state as to whether the punishment of death was appropriate. n104
This deference to the state legislatures is clear in the language of the
In sum, we cannot say that the judgment of the Georgia Legislature that
capital punishment may be necessary in some cases is clearly wrong.
Considerations of federalism, as well as respect for the ability of a
legislature to evaluate, in terms of its particular State, the moral
consensus concerning the death penalty
and its social utility as a sanction, require us to conclude, the
absence of more convincing evidence, that the infliction of death as a
punishment for murder is not without justification and thus is not
unconstitutionally severe. n105
This deference manifested itself in many of the Court's subsequent death
penalty decisions. In McCleskey v. Kemp, the Court again
upheld the Georgia death penalty statute despite
statistical evidence that the imposition of the death penalty
in Georgia varied according to the race of both the defendant and the
victim, with a black defendant convicted of killing a white most likely to
receive the death penalty. n106 In doing so, the Court
stated that McCleskey's concerns would be best addressed by the state
legislatures. n107 The legislatures, the Court said, are "constituted
to respond to the will and consequently the moral values of the
people," n108 and, more importantly, are better qualified to evaluate
statistics in light of local conditions and experiences. n109
The most comprehensive example of the Court's reliance on the decisions of
the state legislatures came in Thompson v. Oklahoma. n110 [*224]
There, the Court vacated a death sentence imposed on a defendant who was
fifteen at the time he actively participated in the brutal murder of his
former brother-in-law. n111 There were three opinions by members of the
Court; Justice Stevens for the plurality, Justice O'Connor concurring, and
Justice Scalia for the dissent. Each relied heavily on the author's
respective evaluation of the actions of the individual state legislatures,
as to whether those actions indicated the existence of a national
consensus on the issue of the execution of a defendant who was fifteen
years of age at the time of the offense. n112 Legislative action is
traditionally used by the Court to evaluate the issue of whether a
particular sentence comports with evolving standards of decency. n113
In Thompson, the Justices could not agree as to the conclusions
to be drawn from the actions of the state legislatures. Justice Stevens,
writing for the plurality, found it most significant that of the eighteen
states that had expressly established a minimum age for execution, the
lowest minimum age is sixteen. n114 He therefore concluded that executions
of those under sixteen at the time of the offense was constitutionally
forbidden. n115 Justice O'Connor, separately concurring in the judgment,
reasoned that there was no evidence that a majority of the states had even
considered the issue of a minimum age for execution, and thus it was
impossible for her to divine a consensus. n116 Justice Scalia, writing for
the dissent, felt that the nineteen states that allowed capital punishment
but set no minimum age, along with the nationwide trend toward reducing
the age at which a juvenile can be tried as an adult, pointed to a
consensus in favor of allowing the execution of those who were fifteen
when they committed the offense. n117
The Supreme Court has thus left the issue of the death penalty
for the mentally impaired in the same place as it has most death
penalty questions -- in the hands of the individual states.
[*225] III. STATE TREATMENT OF MENTALLY IMPAIRED DEFENDANTS IN
Prior to presenting a proposed state statute, it will be helpful to give
an illustration of the way in which the states have treated the mentally
impaired in capital cases up to now. The Penry case is one
example of the difficulty state courts have had in applying mental
impairment as a mitigating circumstance. n118 These additional cases
provide further evidence that state sentencing bodies are not giving
mental impairment proper consideration in capital sentencing, and
appellate courts cannot rectify that problem. Therefore, state action to
provide a blanket exclusion from the death penalty for
defendants such as these is an immediate need.
A. Woods v. State n119
Ronald Woods, though a minor, was an inmate at the Union Correctional
Institution in Florida when he and another inmate stabbed four guards,
killing one. n120 Woods was the primary attacker of the guard who was
killed, n121 and told him that he (the guard) would die when he begged for
his life. n122 Both inmates were convicted of first-degree murder, and
Woods was sentenced to death. n123
The Supreme Court of Florida made more mention of the defendant's mental
condition n124 than did its Texas counterpart in Penry, but the
treatment was still significant in its brevity and focus. The Woods
court found only that the trial court "did not restrict the
presentation of mitigating evidence," n125 and found no evidence that
such mitigating evidence was ignored. n126 At no point did the court
discuss how the mitigating factors should be used, or how they related to
the aggravating circumstances as required by the Florida statute. n127
Again, as in Penry, the defendant's mental condition was [*226]
not given the attention at the sentencing phase required by both the
Supreme Court and the Florida statute. The statute required balancing of
aggravating and mitigating circumstances at sentencing, n128 and there is
no indication in the opinion of the Supreme Court of Florida that the
defendant's mental impairment was considered in mitigation.
B. Harris v. State n129
In Harris, the Supreme Court of Indiana upheld the death sentence
for a defendant who had been allowed to plead "Guilty but Mentally
Ill." n130 James Harris abducted his female victim from a shopping
mall parking lot, drove her to another location after using her pantyhose
to tie her hands behind her back, raped her repeatedly, then strangled and
gagged her, which caused her death. n131 At the guilty plea hearing,
evidence was introduced that indicated that Harris felt controlled by
"psychic forces" who had told him to humiliate women by raping
them. n132 The defense psychiatrist testified that Harris knew that
society found this conduct to be wrong, but believed that a higher power
forced him to be in conflict with society. n133
The court upheld the death sentence, holding that the difference between
mental illness and insanity fr punishment purposes was that one who was
mentally ill but not insane did not fully lack the capacity to
conform his behavior to societal norms. n134 Therefore, the court
concluded, "mentally ill defendants may be deterred by the death
There is no indication that the defendant Harris suffered from mental
retardation. His impairment was mental illness, an emotional,
rather than physical, infirmity. n136 This case shows that many types of
mental impairment are theoretically considered in capital sentencing
decisions, and that courts and juries have great difficulty [*227]
properly handling any type of mental impairment as a mitigating factor.
C. Fitzpatrick v. State n137 and Hudson v. State n138
A pair of Florida cases may best illustrate the difficulty that states
have had in treating mental impairment as a mitigating factor. In Fitzpatrick
v. State, the court vacated the death penalty of a
convicted murderer and remanded the case for non-capital sentencing. n139
The court described the defendant as an "emotionally disturbed
man-child" n140 with an emotional age of between nine and twelve.
The following year, the same court, while describing the case before it as
"a close call" in distinguishing it from Fitzpatrick,
refused to vacate a death sentence. n142 In Hudson v. State, the
Supreme Court of Florida stated that the lower court had found, but gave
little weight to, mitigating circumstances showing that the defendant was
under extreme emotional or mental disturbance, and had an impaired
capacity to conform his conduct to the law. n143 However, without ever
discussing the defendant's particular mental condition, the court
concluded that Hudson's claim was "not as compelling" as
The reality of capital crimes is that their factual situations are
necessarily violent or heinous. What appears to happen at the lower court
level is that once a defendant is found competent to stand trial, and is
then found guilty of a capital offense (thereby indicating the ability to
form the requisite mens rea), his mental condition is given
cursory treatment, at best, in the sentencing phase. Trial courts and
juries consistently find mental impairment to be an insufficient
mitigating circumstance, and appellate courts are not willing to question
the considerations of the court below. n145 As a result, defendants who
are functionally children are being sentenced to the ultimate adult
punishment, mainly because current death penalty statutes
do not provide adequate guidance as to the proper role of [*228]
this important mitigating factor. n146 This failure of the current
statutory schemes suggests the need for different treatment of mental
imapirment in the area of capital sentencing.
The above cases demonstrate the need for state statutes that take the
issue of mental impairment out of the aggravating-mitigating circumstance
balancing in capital sentencing. State capital sentencing statutes
currently remove entire classes of individuals, such as juveniles, from
eligibility for the death penalty, and it is time to
treat the mentally impaired in the same way. The state statute proposed
here does just that, by attempting to treat juveniles and the mentally
impaired in a consistent manner in capital cases. Such consistency is
necessary because the same considerations that preclude a defendant from
being executed because of age also apply to the mentally impaired. n147
In order to properly define the scope of the proposed statutory language,
it is important to note what the proposal is not meant to cover. First, it
is not concerned with the question of competency to stand trial. That
issue is always defined independently of the context of capital
sentencing, and should so remain. n148 Additionally, competency statutes
deal with mental condition at the time of trial and trial preparation, and
not at the time of the offense. n149
Second, this proposal does not address or in any way suggest changes in
the use of insanity or mental illness as a defense to a criminal charge.
In dealing only with sentencing, it assumes by definition that any such
proffered defense has failed.
Third, the proposed legislation does not deal with the question of
defendants who have become insane or mentally ill following conviction and
imposition of sentence. Again, other statutory provisions deal with this
contingency, n150 and it, like competency to stand trial, is concerned
with the defendant's mental condition at a time other than at the
commission of the offense.
The proposed statute reads as follows:
[*229] (A) Death Sentence Excluded. A defendant may be
sentenced to the maximum allowable term for a first degree felony, but not
sentenced to death, if the Court and Jury find that, at the time of the
commission of the crime:
(1) the defendant was under eighteen years of age; or
(2) the defendant, due to mental retardation, was
functionally under eighteen years of age; or
(3) the defendant, due to mental illness, possessed a lessened capacity to
conform his conduct to societal norms or to evaluate the consequences of
that conduct, where the lessened capacity was equivalent to that normally
attributed to juveniles (provided that such mental illness was not solely
caused by the use or abuse of drugs or alcohol).
(B) Standard of Proof. In order to exclude a defendant from the death
penalty, a finding under section (A)(1) or (2) must be by a
preponderance of the evidence, and a finding under section (A)(3) must be
by clear and convincing evidence.
In analyzing this proposal, one must first identify the allowable purposes
for the death penalty. In Gregg v. Georgia, the
Supreme Court identified two such justifications. n151 The first of these
is retribution. The Court stated that capital punishment is at one level
"an expression of society's moral outrage at particularly offensive
conduct." n152 Retribution was thus neither a forbidden goal nor one
inconsistent with notions of the dignity of man. n153
The second allowable justification is that of deterrence. While the Court
recognized that empirical studies as to the deterrent value of capital
punishment have been inconclusive, n154 it nevertheless stated that for
many, "the death penalty undoubtedly is a
significant deterrent." n155
In light of Gregg, capital sentencing as it pertains to juveniles
and the mentally impaired presents a special problem. As noted in the
introductory section, n156 the focus of death penalty
sentencing after Gregg is on the individual defendant. In Thompson
v. Oklahoma, the plurality discussed the special circumstances of
juveniles as candidates for capital punishment. n157 The opinion stated
that adolescents [*230] are less mature and less responsible
than adults, as a class, n158 and that "minors often lack
the experience, perspective, and judgment expected of adults." n159
The plurality stated that the goals of retribution and deterrence are not
met when consideration is given to the lesser culpability of a juvenile
offender, a minor's capacity for growth, and society's obligations to its
The characteristics described by the Thompson plurality are
primarily of juveniles as a class, however, and may be extremely
difficult to apply, let alone prove, in the context of an individual
sentencing hearing. It seems to fly in the face of the notion of
individualized sentencing to consider class, as opposed to individual,
characteristics. Yet, such characteristics can only be considered two ways
-- as individual traits or as class traits. Therefore, if they are too
difficult to apply individually, class treatment is the only alternative,
and the exclusion of certain classes becomes proper.
While the Thompson court dealt with the characteristics of
chronological age that render capital punishment inappropriate, the
exclusion argument is more compelling when it deals with the same
characteristics regardless of chronological age. With juveniles, it is
likely that the intellectual and emotional development of various
defendants will differ, thus making it difficult to state with certainty
when a member of a class should be treated as an adult. However, if it can
be found that, regardless of chronological age, the particular defendant
is mentally or emotionally immature, the appropriateness of a statutory
exclusion of that person from capital punishment is clear. In other words,
under the reasoning of the Supreme Court, if it makes sense to set a
minimum chronological age for execution, it makes at least as much sense
to set equivalent minimum requirements for mental condition. n161 That
this latter step has yet to be taken by any state underscores the need for
the type of legislation proposed here.
[*231] As to the specifics of this proposal, section (A)(1),
which prohibits the execution of juveniles, is taken directly from the
Model Penal Code. n162 This scheme would raise the minimum age set by the
Supreme Court in Thompson from sixteen to eighteen. n163 Without
an extended discussion of this point, which would be beyond the focus of
this Note, it may be noted that the decision to raise the age to eighteen
is supported by the American Law Institute, which, in the comments to the
Model Penal Code, states the belief that "civilized societies will
not tolerate the spectacle of the execution of children." n164
Sections (A)(2) and (3) of this proposal, dealing with mentally impaired
defendants, are a departure from the Model Penal Code approach. While the
Model Code would exclude from the death penalty those
whose mental condition calls for leniency, n165 the comments make it clear
that this provision relates to the defendant's condition at the time of
sentencing, "rather than any mitigating factor that may have existed
at the time of the crime." n166
The Model Code would continue to treat the defendant's mental condition at
the time of the offense as merely a mitigating factor. n167 The comment to
this sub-section states that impairment or incapacity less than that
required for acquittal at the guilt-innocence phase "may suffice to
suggest that the death penalty should not be
invoked." However, based on the manner in which this mitigating
factor has been treated by the states, n168 the phrase "may suffice
to suggest" is not strong enough to give appropriate consideration to
this factor. As this proposal obviously does not encompass the entire
capital sentencing scheme, it is not necessary for present purposes [*232]
to list all of the mitigating factors that should be included in such a
statute. It should be noted, however, that it would be consistent with
this proposal to keep the Model Code's mitigating factor of lacking the
capacity to appreciate the wrongfulness of the conduct, for cases that
would not meet the standards set forth in section (A)(2) or (3) of this
The reason for this particular formulation of sections (A)(2) and (3) is
that it best meets the primary concern in this area, consistency in
capital sentencing, by treating defendants with similar characteristics
similarly. n169 The aim, and the result, is to treat a functional juvenile
the same as an actual juvenile. n170
V. APPLICATION OF MEDICAL TESTIMONY UNDER THE PROPOSAL
The difficult issue raised by this proposal is the importance it
necessarily places on expert medical testimony. It will be up to the trier
of fact to make a final determination as to whether the exclusionary fact
exists, and this contemplates presenting that body with information
sufficient to allow a reasoned decision. The proposal does not give any
medical definitions or bright line tests as to when a defendant may be
found to fall within its exclusions. A jury should not be asked to simply
apply a formula, such as a raw IQ score, and have the outcome
predetermined. In formulating this proposal, it is sufficient that there
exists the requisite medical information and knowledge to allow juries to
be presented with appropriate information with which to make an informed
By way of illustration, several helpful sources, both medical and legal,
can be identified. Medically, the primary reference source is the American
Psychiatric Association's Diagnostic and Statistical [*233]
Manual of Mental Disorders (DSM-III). n171 As to section (A)(2), the
exclusion based on mental retardation, the DSM-III lists
the essential features of mental retardation as "(1)
significantly subaverage general intellectual functioning, (2) resulting
in, or associated with, behavior, ()3 with onset before deficits or
impairments in adaptive behavior, (3) with onset before the age of
18." n172 Intellectual functioning is measured by standard IQ
testing, n173 and significantly subaverage functioning is represented by
an IQ of 70 or less, plus or minus 5. n174
The factor of onset before eighteen is not relevant for purposes of this
proposal, as the same clinical situation developing after eighteen is
classified as "dementia" as opposed to "retardation."
n175 As dementia involves the loss of mental capacity to the extent of
interference with social functioning, n176 and paranoid ideation which can
result in physical attacks by the sufferer, n177 a person rendered a
functional juvenile after the age of eighteen should be treated no
differently legally than one whose disorder begins while a minor.
The DSM-III identifies four sub-types of mental retardation:
(1) Profound (IQ below 20); (2) Severe (IQ 20-34); (3) Moderate (IQ
35-49); and (4) Mild (IQ 50-70). n178 It is more likely that persons of
the latter two types will reach the sentencing phase of a capital case.
Therefore, it is important to consider the symptoms and abilities of
persons of those types in light of the requirements of this proposal. A
moderately retarded individual is unlikely to progress beyond a
second-grade academic level. n179 Once such persons become adults they
still need supervision and guidance when subjected to even mild social or
economic stress. n180 A mildly retarded individual can reach sixth-grade
level by his late teens, n181 and as an adult needs supervision and
guidance under "unusual" social or economic stress. n182
It is this lack of intellectual and reasoning capacity and lack of
sophistication in dealing with stress on one's own that the plurality
[*234] in Hompson recognized as justification for
setting a minimum age for execution. n183 Identification of the same
traits in the mentally retarded further shows the need for similar legal
treatment of juveniles and the mentally impaired. More importantly, this
information shows that specific clinical guidelines to make the
determinations needed to effectuate this proposal are not only possible,
but are currently in use and accepted.
The American Association of Mental Retardation (AAMR)
also provides a useful definition of mental retardation.
This definition refers to mental retardation as
"significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and manifested during the
developmental period." n184 To be considered as mentally retarded, a
person's adaptive behavior must be impaired to the point that he is
significantly limited in one or more of the following areas: maturation,
learning, personal independence, and social responsibility. n185
Although more difficult to quantify, and thus more difficult to apply, the
DSM-III also provides guidance into clinical definitions of mental
illnesses. These definitions include descriptions of symptoms and
associated features of the illnesses that should allow sentencing bodies
to knowledgeably apply section (A)(3) of the proposal. n186
For example, the DSM-III describes schizophrenia as involving thoughts
that are not one's own that are isnerted into the individual's mind
(thought insertion). n187 Alternatively, a schizophrenic may have
feelings, thoughts, impulses and actions that are believed by him to be
imposed by an external force, which differs from thought insertion in that
such imposition creates the delusion of being controlled. n188 The DSM-III
goes on to state that hallucinations involving external commands may be
obeyed, creating danger for the individual or others. n189 Schizophrenia
"invariably" involves impairment of routine functioning,
including social relations. n190
[*235] Paranoia is another mental illness defined in the
DSM-III. A paranoid individual is likely to have delusions that lead to
anger and resentment, which can lead to violence. n191 While daily
work-related and intellectual functioning is rarely imapired due to
paranoia, n192 social functioning is often severely impaired. n193
Another classification of mental illness in the DSM-III is entitled Major
Affective Disorders, which includes primary major manic and depressive
episodes. n194 Manic episodes may involve excessive involvement in
activities with an unrecognized potential for painful consequences. n195
Associated features of manic episodes include delusions that the voice of
God is sending the individual on a special mission, n196 or delusions of
Apart from the DSM-III, other authorities have described mental illnesses
in a manner suggesting that their application to this proposal is quite
possible. Pearlstein, a leading authority on forensic psychiatry, has
noted that the clinical view of a criminal defendant may indicate several
conditions beyond, or more accurately short of, legal incompetency. n198
For example, schizophrenia is defined as a specific reaction to an extreme
state of anxiety involving regression to mental mechanisms associated with
lower levels of integration, and thus of less mature persons. n199
Two psychologists have similarly studied paranoia as it relates to crime.
n200 While recognizing that a diagnosis of paranoia is often a borderline,
less reliable diagnostic category than other mental illnesses, n201 they
go on to note that the prototypical behavior of paranoia is delusions of
persecution. n202 Such delusions put people on unnecessary alerts, and
lead to misinterpretations of many aspects of life and thus to incorrect
or inappropriate responses. n203
[*236] One doctor created a classification of criminal
offender which he refers to as "Psychopaths." n204 In this
category, Dr. Smith included those suffering from paranoid personalities
and other "emotional instabilities." n205 Significantly,
offenders can fit into this category despite their not being insane or
certifiable as such. n206
While this is plainly a mere overview of diagnostic models for mental
illnesses, two facts about the treatment of mental illness by the DSM-III
and other authorities are clear. First, mental illnesses, while generally
transient and primarily emotional disorders, do have specific,
identifiable symptoms which medical experts can explain and apply for
sentencing bodies. Second, however, mental illnesses are not defined in
terms of functional age, making the application of section (A)(3) of this
proposal admittedly much more difficult than that of section (A)(2).
This difficulty should not be fatal to that sub-section of the proposal.
The language of section (A)(3) is derived from the characteristics of
juveniles relied on by the Supreme Court in Thompson as
justifying exclusion from capital sentencing because of age. n207 The
proposal requires that the claimed mental illness of the convicted
defendant be evaluated not in terms of specific functional age but in
terms of how the illness affected the defendant's ability to respond to
outside situations and pressures. Specifically, did the mental illness
cause the defendant to commit a capital offense when he was unable to
accurately evaluate the action and its consequences, or to respond in an
appropriate, non-criminal manner?
The proposal thus requires the trier of fact to evaluate the defendant's
mental illness and its effects along a continuum of adultjuvenile
capacity, with juveniles assumed to have a significantly reduced capacity
in these areas, the same assumption made by the Thompson court.
n208 Without question, this will involve drawing a precise line with
imprecise measurements. For this reason, section (B) of the proposal
raises the standard of proof by which this exclusion must be found to one
of clear and convincing evidence. Heightened standards are not without
precedent in capital sentencing statutes. n209 Where the measuring ability
of the sentencing body may not be precise, the clear and convincing
standard will create [*237] both a cushion against improper
measurement and a clearer direction for appellate review of the sentence.
This is accomplished without eliminating an essential element of the
proposal -- directing the sentencing body as to the proper reasons for
considering the defendant's mental impairment in mitigation.
In summary, medical information is available to allow the sentencing body
to evaluate a particular defendant in terms dictated by this proposal.
Medical sources relating to both mental retardation and
mental illness provide definitions of specific conditions and symptoms
that relate to the proposal in such a way as to allow for its manageable
From the perspective of the legal community, it is sufficient to note that
clinically-based legal definitions of the type contemplated above from the
DSM-III have been incorporated in many aspects of legal usage and
commentary. The Model Penal Code does so in a variety of areas. The
capital sentencing mitigating factor of lack of capacity to conform
conduct to societal norms n210 is akin to an individual's ability to react
to societal stress properly. Model Code section 4.02 allows evidence that
the defendant suffers from mental disease or defect both in the
guilt-innocence phase, to prove the absence of requisite mens rea,
and in the sentencing phase, in mitigation. n211
Another use of clinical definitions is found in the American Bar
Association's Mental Health Standards. n212 The Mental Health
Standards recognize a difference between mental retardation
and mental illness; the former being an impairment of learning ability,
the latter a temporary, cyclical or episodic disturbance of thought
processes or emotions. n213 The basis for this distinction in the Mental
Health Standards, however, is that mental illness is by definition
curable, while retardation is not. n214 While important in determining
under which section an attempted exclusion will fall, any distinction
between mental retardation and mental illness based on
whether the [*238] condition is curable is not significant to
this proposal. Because the proposal is concerned with mental condition at
a fixed period in time, the commission of the offense, it is not concerned
with predictions of the curability of the condition. The Mental Health
Standards provides an example of the legal profession's reliance on
clinical evaluation of mental disorders, and suggests that extending that
reliance to prevent unwarranted executions is not that large a step. n215
The obvious example of the overlap of psychiatry and the law is in the
area of insanity and diminished capacity. This involves both
constitutional prohibitions on executing insane inmates n216 and insanity
and diminished capacity as defenses in criminal actions. n217 The notion
of finding a defendant not guilty by reason of a mental disorder is
certainly more extreme than precluding a class of individuals from the death
penalty, so this proposal is not close to the limit of where
psychiatry and medicine should influence the criminal justice process.
Finally, this added responsibility of medical professionals in criminal
proceedings creates added pressure on the actors from both the legal and
medical spheres. The courts, and attorneys, must take care to select the
appropriate medical experts to render opinions as to the mental state of
the individual defendants, so that the triers of fact may make a truly
informed decision. n218 This is especially true in the area of mental
illness, where the impairment is often much harder to quantify. The weight
of authority considers psychiatry, as it relates to the treatment of
mental illness, as a branch of medicine capable of valid classification
and prediction. n219
[*239] The medical professionals in turn are faced with an
ethical dilemma in being called on to provide essential information that
could lead directly to the execution of a human being. n220 This is an
inevitable concern for doctors in a society which allows capital
punishment. The thrust of this proposal is to assure that persons
medically inappropriate for execution are not executed, and this may be as
much as a doctor in this society can ask.
Perhaps Dr. M.H. Smith best expressed the medical-legal relationship as it
relates to mental impairment:
If society chooses to decide that under certain special circumstances its
normal reaction to some act will be modified, it is, of course, at
complete liberty to do so. And society may choose to adopt the rule that
certain degrees of mental disease or defect shall materially alter its
reaction to acts committed by persons who suffer from such mental disease
or defect. We [psychiatrists] may properly lend our assistance to a Court
in order to help it to decide (for the ultimate decision must always lie
with the Court) whether such a degree of mental disease or defect exists
in any particular case. n221
It is apparent that the criminal justice system has been unsing
psychiatric and other medical information for a variety of tasks. Given
that current usage, the additional burden caused by this proposal should
not overwhelm the legal-medical partnership. It is possible for medical
professionals to provide courts and juries with appropriate information to
allow this proposal to function efficiently.
Justice O'Connor may have been guilty of extreme understatement when she
wrote that death penalty cases have consistently been
subject to "the need for special care and deliberation." n222
Any society willing to impose the ultimate sanction must also be willing
to exercise extreme caution in doing so.
The current state statutory schemes treating juveniles and the mentally
impaired in regard to capital sentencing do not meet the [*240]
test of 'special care and deliberation." State court treatment of the
mentally impaired in capital cases has been that once a defendant is found
both competent to stand trial and guilty of the capital offense, the
sentencing body in considering aggravating and mitigating circumstances
gives little, if any, consideration to the mental condition of the
defendant at the time of the offense. The practical effect of this is
often that no weight at all is given to mental impairment as a mitigating
circumstance, and that result is a violation of Lockett and Eddings.
The only practical alternative is to remove this factor from the balancing
process, and accord it the status of an exclusionary factor, along with
the factor of youth.
This proposal will inevitably be subject to the criticism that once you
adopt a blanket exclusion, you will preclude what in some cases may be an
appropriate sentence. I cannot disagree that that is a potential result.
However, if Chief Justice Warren's famous statement that the Eighth
Amendment is to be judged based on "evolving standards of
decency" n223 is to mean anything, it must mean that a society that
is willing to put people to death must be at least as willing to err
occasionally on the side of life.
Those who are chronologically juveniles and those who are functionally
juveniles constitute classes of individuals that negate the justifications
for capital punishment. Since these factors are applicable to classes of
persons rather than individuals, there is no alternative but to apply them
to the classes as a whole. This proposal provides a rational means for
states to inject a much needed dose of consistency into one facet of
capital sentencing. A society willing to put appropriate members to death
has to be able to carefully and properly define who is
"appropriate." This proposal answers a need for consistency in
sentencing those who may be the least appropriate candidates for the death
penalty -- juveniles and the mentally impaired -- and as such is
an idea whose time has come.
The United States Supreme Court recently handed down its decision in Penry
v. Lynaugh, 109 S. Ct. 2934 (1989). The Court, as predicted in
Section I(C), above, held that executing mentally retarded people
convicted of capital offenses is not categorically prohibited by the
Eighth Amendment, but overturned Penry's sentence because [*241]
the Texas capital sentencing procedure did not allow for proper
consideration of all the mitigating evidence. The Court properly
identified the problem, but its solution, leaving the matter for state
sentencing bodies with proper guidance, has been shown to be ineffective.
The outcome of Penry underscores the need for the legislation
n1 428 U.S. 153 (1976).
n2 Id. at 206-07. Furman held that "[b]ecause of
the uniqueness of the death penalty . . . it could not be
imposed under sentencing procedures that create a substantial risk that it
would be inflicted in an arbitrary and capricious manner." Id.
n3 Id. at 206.
n4 GA. CODE ANN. § 17-10-35 (1982).
n5 Id. § 17-10-30.
n6 Id. § 17-10-30(b)-(c).
n7 Id. § 17-10-30(b).
n8 Gregg v. Georgia, 428 U.S. 153, 189 (1975). See generally
England, Capital Punishment in the Light of Constitutional Evolution:
An Analysis of Distinctions Between Furman and Gregg, 52
NOTRE DAME LAW. 596 (1977); Comment, Evolutions of the Eighth
Amendment and Standards for the Imposition of the Death
Penalty, 28 DEPAUL L. REV. 351, 361-86 (1979).
n9 See, e.g., FLA. STAT. ANN. § 921.141 (West 1985 & Supp.
1989); OHIO REV. CODE ANN. §§ 2929.03-.06 (Anderson 1987 & Supp.
1987). See also MODEL PENAL CODE § 210.6 (Official Draft 1980).
n10 See, e.g., FLA. STAT. ANN. § 921.141(6) (West 1985); OHIO
REV. CODE ANN. § 2929.04(B) (Anderson 1987 & Supp. 1987). See
also MODEL PENAL CODE § 210.6(4) (Official Draft 1980).
n11 See, e.g., OHIO REV. CODE ANN. § 2929.03(A) (Anderson 1987
& Supp. 1987) (persons under 18 at time of offense excluded); TEX.
PENAL CODE ANN. § 8.07(e) (Vernon Supp. 1989) (persons under 17 at time
of offense excluded). See also MODEL PENAL CODE § 210.6(1)(d)
(Official Draft 1980) (persons under 18 at time of offense excluded).
n12 Thompson v. Oklahoma, 108 S. Ct. 2687 (1988). In Thompson,
the Oklahoma courts convicted a person who was fifteen at the time of the
offense of capital murder in the death of his brother-in-law. The Court
overturned the sentence as "cruel and unusual" in violation of
the Eighth Amendment. The plurality set a minimum age of sixteen, while
Justice O'Connor, the fifth vote to overturn, concurred but declined to
set a minimum age. Id.
n13 For the most part, this Note will use the term "mental
impairment" to refer to both mental retardation, a
physical malady, and mental illness, primarily an emotional problem. The
distinction between the two will become important in discussing the
particulars of the legislative proposal in Section IV, and will thus be
made and analyzed there. See infra notes 171-206 and accompanying
n14 See, e.g., OHIO REV. CODE ANN. § 2929.04(B)(3) (Anderson
1987 & Supp. 1987). See also MODEL PENAL CODE § 210.6(4)(b),
(4)(g) (Official Draft 1980).
n15 Compare GA. CODE ANN. § 17-10-60 to -71 (Supp. 1988) (inmate
who becomes insane subsequent to conviction statutorily precluded from
execution) with GA. CODE ANN. § 17-7-131(j) (Supp. 1988) (mental
impairment at time of offense, if proven, excludes execution). The
prohibition against execution of inmates who become insane subsequent to
conviction was later mandated by the United States Supreme Court in Ford
v. Wainwright, which held that the execution of insane inmates was a
violation of the Eighth Amendment. 477 U.S. 399 (1986).
n16 For a discussion of Gregg v. Georgia, see supra
notes 1-8 and accompanying text.
n17 Woodson v. North Carolina, 428 U.S. 280 (1976); Sumner v. Shuman, 107
S. Ct. 2716 (1987).
n18 428 U.S. 280 (1976).
n19 Id. at 286.
n20 107 S. Ct. 2716 (1987).
n21 Id. at 2718.
n22 Id. at 2718 n.1.
n23 Id. at 2727.
n24 Id. at 2721; Woodson, 428 U.S. at 303-305.
n25 Sumner, 107 S. Ct. at 2721 (citing Gregg v. Georgia, 428 U.S.
153, 197 (1976)).
n26 Id. (citing Woodson v. North Carolina, 428 U.S. 280, 303-305
n27 438 U.S. 586 (1978).
n28 Id. at 593-94.
n29 Id. at 604 (emphasis in original). See generally
Hertz & Weisberg, In Mitigation of the Penalty of Death:
Lockett v. Ohio and the Capital Defendant's Right to Consideration of
Mitigating Circumstances, 69 CALIF. L. REV. 317 (1981).
n30 455 U.S. 104 (1982).
n31 Id. at 109.
n32 Id. at 114-15.
n33 Id. at 115 n.10.
n34 481 U.S. 393 (1987).
n35 Id. at 398-99.
n36 490 So.2d 24 (Fla.), cert. denied, 479 U.S. 954 (1986)
n38 479 U.S. 954 (1986)(mem.).
n39 Woods was eighteen at the time of his trial, Woods, 490 So.
2d at 28 n.7. The trial was held at least two years after Woods' arrest
and was completed a year before a Florida Supreme Court 1984 decision,
State v. Neil, 457 So. 2d 481 (Fla. 1984)(holding that a party may be
required to state the basis for exercising a preemptory challenge) (case
unrelated to Woods except as used in Woods to establish
defendant's age), Woods, 490 So. 2d at 25, and the defendant had
been arrested for this offense in June of 1983, id. at 26.
n40 Petition for Writ of Certiorari at 20, Woods v. State, 490 So. 2d 24
(Fla. 1986) (cited in Woods v. Florida, 479 U.S. 954, 955 (1986)
(Marshall, J., dissenting from mem. decision denying cert.)).
n41 Woods, 479 U.S. at 955 (Marshall, J., dissenting from mem.
decision denying cert.). Justice Marshall has always been totally opposed
to capital punishment, but wrote this dissent to state that even if he
were to believe that the death penalty was proper in some
cases, the Eighth Amendment was clearly violated in this particular case. Id.
(Marshall, J., dissenting).
n42 Id. (Marshall, J., dissenting).
n43 832 F.2d 915, 917 (5th Cir. 1987), cert. granted, 108 S. Ct.
n44 Penry, 832 F.2d at 918.
n46 Id. at 926.
n47 Penry v. State, 691 S.W.2d 636, 641 (Tex. Crim. App. 1985).
n51 Petition for Writ of Certiorari, Joint Appendix at 18, Penry v.
Lynaugh, petition for cert. filed, 57 U.S.L.W. 3024 (U.S. Jan. 4,
1988), cert. granted, 108 S. Ct. 2896 (1988) (No.
87-6177)(testimony of Dr. Jose Garcia, psychiatrist).
n52 Id. at 34 (testimony at competency hearing).
n53 Id. (testimony at competency hearing).
n54 Id. at 16 (testimony of Dr. Garcia).
n55 Id. at 16-17 (testimony of Dr. Garcia).
n56 Id. at 41 (testimony of Dr. Jerome Brown, psychiatrist).
n57 Id. at 35 (testimony of Dr. Brown).
n58 Id. (testimony of Dr. Brown).
n59 Id. at 117 (testimony of Shirley Finlayson, defendant's
n60 Id. (testimony of Ms. Finlayson).
n61 Id. at 112 (testimony of Ms. Finlayson). When he was 12 his
mother found Penry picking off his brother's skin with a straight pin. Id.
When confronted, his only response was that he hadn't meant to do it. Id.
n62 Id. at 108 (testimony of Ms. Finlayson).
n63 Id. at 114 (testimony of Ms. Finlayson).
n64 Penry v. State, 691 S.W.2d 636, 640-41 (Tex. Crim. App. 1985).
n65 Id. at 654-55.
n66 Penry v. Lynaugh, 832 F.2d 915, 917 (5th Cir. 1987), cert.
granted, 108 S. Ct. 2896 (1988). The court did not state Penry's
mental capacity in terms of "functional" age.
n67 Penry, 832 F.2d at 917.
n68 Penry, 691 S.W.2d at 650.
n69 Id. at 652.
n70 Id. at 654-55.
n71 Id. at 655.
n72 TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon Supp. 1989).
n73 Brief of Amicus Curiae Texas Criminal Defense Lawyers Association in
Support of Petitioner at 8, Penry v. Lynaugh, petition for cert.
filed, 57 U.S.L.W. 3024 (U.S. Jan. 4, 1988), cert. granted,
108 S. Ct. 2896 (1988) (No. 87-6177) [hereinafter Defense Lawyers Brief].
n74 Brief of Billy Conn Gardner as Amicus Curiae for Petitioner at 14-15,
Penry v. Lynaugh, petition for cert. filed, 57 U.S.L.W. 3024
(U.S. Jan. 4, 1988), cert. granted, 108 S. Ct. 2896 (1988) (No.
87-6177) [hereinafter Gardner Brief].
n75 Brief of Amicus Curiae Harris County Criminal Lawyers Association at
8-9 (citing Penry, 691 S.W.2d at 653), Penry v. Lynaugh, petition
for cert. filed, 57 U.S.L.W. 3024 (U.S. Jan. 4, 1988), cert.
granted, 108 S. Ct. 2896 (1988) (No. 87-6177) [hereinafter Criminal
n78 For a discussion of Lockett and Eddings, see supra
notes 27-35 and accompanying text.
n79 Petition for Writ of Certiorari at 7-8, Penry v. Lynaugh, petition
for cert. filed, 57 U.S.L.W. 3024 (U.S. Jan. 4, 1988), cert.
granted, 108 S. Ct. 2896 (1988) (No. 87-6177) [hereinafter Petition
n80 Id. at 8.
n81 Gardner Brief, supra note 74, at 21.
n82 Id. at 21, 48.
n83 Respondent's Brief in Opposition to Petition for Writ of Certiorari at
8, Penry v. Lynaugh, petition for cert. filed, 57 U.S.L.W. 3024
(U.S. Jan. 4, 1988), cert. granted, 108 S. Ct. 2896 (1988)(No.
n84 Id. at 11.
n85 Respondent's Brief at 14, Penry v. Lynaugh, cert. granted,
108 S. Ct. 2896 (1988) (No. 87-6177) [hereinafter Respondent's Brief].
n86 For a discussion of Lockett and Eddings, see supra
notes 27-35 and accompanying text.
n87 Respondent's Brief, supra note 85, at 14-15.
n88 Defense Lawyers Brief, supra note 73, at 13.
n89 Criminal Lawyers Brief, supra note 75, at 16-18.
n90 Petition for Writ, supra note 79, at 8.
n91 Id. at 14.
n92 Brief of American Association on Mental Retardation,
American Psychological Association, Association for Retarded Citizens of
the United States, The Association for Persons with Severe Handicaps,
American Association of University Affiliated Programs for the
Developmentally Disabled, American Orthopsychiatric Association, New York
State Association for Retarded Children, Inc., National Association of
Private Residential Resources, National Association of Superintendents of
Public Residential Facilities for the Mentally Retarded, Mental Health Law
Project, and National Association of Protection and Advocacy Systems as
Amicus Curiae in Support of Petitioner at 12, Penry v. Lynaugh, petition
for cert. filed, 57 U.S.L.W. 3024 (U.S. Jan. 4, 1988), cert.
granted, 108 S. Ct. 2896 (1988) (No. 87-6177) [hereinafter AAMR
n93 Id. at 13-15.
n94 Id. at 19-20. For a discussion of the purposes of capital
punishment found valid in Gregg, see infra notes 151-155
and accompanying text.
n95 AAMR Brief, supra note 92, at 19.
n97 For a discussion of the Supreme Court's treatment of federalism in
regard to the issue of capital punishment, see infra notes 99-117
and accompanying text.
n98 For a discussion of state court treatment of the mentally impaired in
capital sentencing, see supra notes 47-71 and infra
notes 118-146 and accompanying text.
n99 U.S. CONST. amend. VIII. That amendment in pertinent part prohibits
"cruel and unusual punishments." Id. The Eighth
Amendment is applicable to the states as incorporated through the
Fourteenth Amendment. Robinson v. California, 370 U.S. 660 (1962).
n100 428 U.S. 153 (1976).
n101 Id. at 169.
n102 Id. at 173-87. The evolving standards of decency test is the
Court's evaluation of capital punishment in terms of society's current
view of that sentence, as indicated primarily by legislative actions and
trends in jury decisions. The dignity of man test, in effect, allows the
Court to override current standards if they do not give sufficient weight
to considerations of human dignity.
n103 Id. at 179-80.
n104 Id. at 186-87.
n105 Id. (emphasis added).
n106 481 U.S. 279, 286-91 (1987), reh'g denied, 482 U.S. 920
(1987). The Court assumed the statistical evidence to be correct, but
found that it did not give rise to a constitutional violation. The death
penalty was assessed in 22% of the cases involving black
defendants and white victims, 8% of the cases involving white defendants
and white victims, 3% of the cases involving white defendants and black
victims, and 1% of the cases involving black defendants and black victims.
Id. at 286. Further, prosecutors were over four times more likely
to seek the death penalty when the victim was white and
the defendant black compared to when both the victim and the defendant
were black. Id. at 287.
n107 Id. at 319.
n108 Id. (quoting Furman v. Georgia, 408 U.S. 238, 383 (1972)).
n109 Id. (quoting Gregg v. Georgia, 428 U.S. 153, 186 (1976)).
n110 108 S. Ct. 2687 (1988).
n111 Id. at 2690, 2700.
n112 For a discussion of the individual opinions, see infra notes
114-117 and accompanying text.
n113 For a discussion of the standard use in Gregg to evaluate
the death sentence under the Eighth Amendment, see supra note 102
and accompanying text.
n114 Thompson, 108 S. Ct. at 2695.
n115 Id. at 2700.
n116 Id. at 2709-10 (O'Connor, J., concurring).
n117 Id. at 2716-21 (Scalia, J., dissenting).
n118 For a discussion of the state court treatment of the Penry
case, see supra notes 47-71 and accompanying text.
n119 Woods v. State, 490 So. 2d 24 (Fla.), cert. denied, 107 S.
Ct. 446 (1986) (mem.).
n120 Woods, 490 So. 2d at 25.
n121 Id. at 27.
n124 Id. at 27-28. Woods had an IQ of 73, and had sustained brain
damage as a child. Woods v. Florida, 107 S. Ct. 446, 446 (Marshall, J.,
dissenting from denial of cert.). For further discussion of Woods' mental
condition, see supra notes 36-42 and accompanying text.
n125 Woods v. State, 490 So. 2d at 28.
n127 The Florida statute provides that in order to sentence a defendant to
death, the trier of fact must find that mitigating circumstances, if any,
do not outweigh the aggravating circumstances of the offense. FLA. STAT.
ANN. § 921.141(3)(b) (West 1985). Mitigating circumstances include the
fact that the crime was committed under extreme mental or emotional
disturbance, id. § 921.141(6)(b), and that the defendant's
capacity to appreciate the criminality of his conduct or to conform his
conduct to societal norms was substantially impaired. Id. §
n128 Woods, 490 So. 2d at 24-28.
n129 Harris v. State, 499 N.E.2d 723 (Ind. 1986), Cert. denied,
482 U.S. 909 (1987).
n130 Harris, 499 N.E.2d at 724, 731.
n131 Id. at 724.
n133 Id. at 724-25.
n134 Id. at 727 (emphasis added).
n135 Id. (emphasis added).
n136 For a discussion of the difference between mental retardation
and mental illness in terms of this Note's proposal, see infra
notes 171-206 and accompanying text.
n137 527 So. 2d 809 (Fla. 1988).
n138 538 So. 2d 829 (Fla. 1989).
n139 527 So. 2d 809 (Fla. 1988).
n140 Id. at 812.
n141 Id. "Emotional age" was used by the court to
indicate the level of the defendant's emotional maturity, placing the
defendant on a level of maturity equivalent to that of a normal nine- to
n142 Hudson v. State, 538 So. 2d 829 (Fla. 1989).
n143 Id. at 831 n.5.
n144 Id. at 832.
n145 The Supreme Court of Florida in Hudson stated specifically
that it was not within the province of the reviewing court to reweigh
aggravating and mitigating factors. Id. at 831.
n146 For discussion of the importance of guiding and limiting the
discretion of the sentencing body, see supra note 8 and
n147 For a comparison of the characteristics of the mentally impaired and
juveniles, see infra note 161 and accompanying text.
n148 See, e.g., FLA. STAT. ANN. § 916.12 (West 1985).
n149 For example, Florida defines incompetence to stand trial as not
having "sufficient present ability" to consult the lawyer with a
reasonable degree of understanding, or not having a rational and factual
understanding of the proceedings. Id. § 916.12(1).
n150 See, e.g., OHIO REV. CODE ANN. §§ 2949.28-.32 (Anderson
n151 428 U.S. 153, 183 (1976).
n153 Id. Justice Stewart stated, "[T]he decision that
capital punishment may be the appropriate sanction in extreme cases is an
expression of the community's belief that certain crimes are themselves so
grievous an affront to humanity that the only adequate response may be the
penalty of death." Id. at 184.
n154 Id. at 184-85.
n155 Id. at 185-86.
n156 See supra note 3 and accompanying text.
n157 108 S. Ct. 2687, 2698-2700 (1988).
n158 Id. at 2698 (emphasis added).
n159 Id. (citing Belotti v. Baird, 443 U.S. 622, 635 (1979);
Eddings v. Oklahoma, 455 U.S. 104, 115-16 (1982)).
n160 Id. at 2699. For a discussion of this point from an amicus
brief in Penry, see supra notes 95-96 and accompanying
n161 See Smith v. Kemp, 664 F. Supp. 500 (M.D. Ga. 1987). There,
Judge Fitzpatrick stated that
No justification can be had for the execution of a child of ten or eleven
in any society that calls itself civilized. If a child of ten or eleven
should not be executed under any circumstances, then surely a person who
may have a chronological age of twenty, but a mental age of ten or eleven,
should not be put to death.
Id. at 507 (quoted in Blume & Bruck, Sentencing the
Mentally Retarded to Death: An Eighth Amendment Analysis, 41 ARK. L.
REV. 725, 725 (1988)).
n162 MODEL PENAL CODE § 210.6(1)(d) (Official Draft 1980).
n163 Thompson, 108 S. Ct. at 2700.
n164 MODEL PENAL CODE § 210.6 commentary at 133 (Official Draft and
Revised Comments 1980). The commentary goes on to recognize that any
bright line age cutoff will potentially exclude arguably appropriate
candidates, but concludes that "however dangerous some children may
be, the death penalty should be reserved for mature
adults." Id. Many commentators have supported this position.
See, e.g., Streib, The Eighth Amendment and Capital
Punishment of Juveniles, 34 CLEV. ST. L. REV. 363 (1986) (detailing
the history of execution of juveniles in America and concluding that 18 is
the most appropriate minimum age); Comment, Death at an Early Age:
International Law Arguments Against the Death Penalty
for Juveniles, 57 U. CIN. L. REV. 1001 (1988) (arguing for United
States to adopt international law standards and prohibit execution of
those under 18 at time of the offense).
n165 MODEL PENAL CODE § 210.6(1)(e) (Official Draft 1980).
n166 MODEL PENAL CODE § 210.6 commentary at 134 (Official Draft and
Revised Comments 1980).
n167 MODEL PENAL CODE § 210.6(4)(b), (4)(g) (Official Draft 1980).
n168 For discussion of state court treatment of the mentally impaired as
regards capital punishment, see supra notes 47-71, 118-146 and
n169 The term "consistency" has been used here to refer to
treating those with a given chronological age and those with the same
mental or emotional age in the same way. It is important to note that this
concept lies at the heart of the Supreme Court's death penalty
jurisprudence. One of the important features of the Georgia statute upheld
in Gregg v. Georgia, 428 U.S. 153 (1975), was that the appellate review
must specifically determine whether the death penalty in
the case before it was proportionate to the penalty imposed in similar
cases. GA. CODE ANN. § 17-10-35(c)(3) (1982). The court specifically
noted that this provision guards against arbitrary and capricious death
sentences. Gregg, 428 U.S. at 198. Consistency is thus not simply
an ideal, but is a factor in whether a death sentence is constitutional.
n170 One existing proposal would treat the mentally retarded in capital
sentencing by imposing a presumption in favor of life, with the death
penalty imposed only if the sentencing body finds the defendant
to be (1) as culpable and responsible as a non-retarded individual, (2)
incapable of rehabilitation, and (3) a continuing threat to society if not
executed. Blume & Bruck, infra note 161, at 763. However,
sentencing bodies up to this point clearly have not been able to properly
evaluate mental impairment. In the case of a heinous crime a jury is
likely to find these factors, and I remain convinced that a blanket
exclusion is the only constitutional alternative.
n171 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL
OF MENTAL DISORDERS, (3d ed. 1980) [hereinafter DSM-III].
n172 Id. at 36.
n175 Id. at 37.
n176 Id. at 107.
n177 Id. at 109.
n178 Id. at 39. All stated IQ levels are based on individually
administered general intelligence tests, and are subject to a 5-point
margin of error. Id. at 36.
n179 Id. at 39.
n183 Thompson v. Oklahoma, 108 S. Ct. 2687, 2699 (1988). For discussion of
this portion of Thompson, see supra notes 157-60 and
n184 AMERICAN ASSOCIATION ON MENTAL DEFICIENCY, CLASSIFICATION IN MENTAL
RETARDATION 1 (H. Grossman, ed. 1983) (quoted in Blume &
Bruck, supra note 161, at 730) [hereinafter AAMD CLASSIFICATION].
The American Association on Mental Deficiency (AAMD) is now the American
Association of Mental Retardation (AAMR).
n185 AAMD CLASSIFICATION, supra note 184, at 23 (quoted in Blume
& Bruck, supra note 161, at 731).
n186 For the language of section (A)(3) of the proposed statute, see supra
n187 DSM-III, supra note 171, at 182.
n189 Id. at 183.
n190 Id. at 185.
n191 Id. at 195.
n194 Id. at 205-18.
n195 Id. at 206.
n196 Id. at 207.
n198 S. PEARLSTEIN, FORENSIC PSYCHIATRY AND LEGAL PROTECTIONS OF THE
INSANE 35 (1986). "Forensic psychiatry" is defined as the
science of psychiatry applied to the substantive law of the case before a
court. Id. at 73.
n199 Id. at 49.
n200 Ullman & Krasner, Paranoid Behaviors and Personality
Disorders in PSYCHOLOGICAL APPROACHES TO CRIME AND ITS CORRECTION
232-50 (I. Jacks & S.G. Cox, eds. 1984).
n201 Id. at 232.
n203 Id. at 233.
n204 M.H. SMITH, THE PSYCHOLOGY OF THE CRIMINAL 146-49 (1983).
n207 Thompson v. Oklahoma, 108 S. Ct. 2687, 2698-99 (1988).
n209 See e.g., GA. CODE ANN. § 17-10-30(c) (1982) (finding of
aggravating circumstance must be beyond a reasonable doubt).
n210 MODEL PENAL CODE § 210.6(4)(g) (Official Draft 1980).
n211 Id. at § 4.02. The commentary to this section notes that
the ALI "perceived no justification for a limitation on evidence that
may bear significantly on a determination of the mental state of the
defendant at the time of the commission of the crime," id.
at § 4.02 commentary at 219, and that psychiatric evidence should be
admissible in this context. Id.
n212 ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS (1984) (adopted as
chapter seven of the ABA STANDARDS FOR CRIMINAL JUSTICE (2d ed. 1980) on
August 7, 1984) (cited in Ellis & Luckasson, infra note 213,
at 415) [hereinafter MENTAL HEALTH STANDARDS].
n213 Ellis & Luckasson, Mentally Retarded Criminal Defendants,
53 GEO. WASH. L. REV. 414, 424 (1985).
n215 See also George, The American Bar Association's Mental
Health Standards: An Overview, 53 GEO. WASH. L. REV. 338 (1985);
Zenoff, Controlling the Dangers of Dangerousness: The ABA Standards
and Beyond, 53 GEO. WASH. L. REV. 562 (1985). Illustrative of the
entire theme of this proposal, the difficulty that the courts have had in
sentencing the mentally disabled, is that Professor Zenoff chose to begin
her article with a quote from ALICE IN WONDERLAND: "Sentence first --
verdict afterwards." Id. at 562 (quoting L. CARROLL, ALICE'S
ADVENTURES IN WONDERLAND 168 (1969)).
n216 See Note, Ford v. Wainwright: A Coda in the
Executioner's Song, 72 IOWA L. REV. 1461 (1987).
n217 See H. CHEN, A STUDY OF THE SOCIAL AND MENTAL ASPECTS OF
PUNISHMENT AND CRIMINAL LIABILITY 280-314 (1975); N. MORRIS, MADNESS AND
THE CRIMINAL LAW (1982); Sendor, Crime as Communication: An
Interpretive Theory of the Insanity Defense and the Mental Elements of
Crime, 74 GEO. L.J. 1371 (1986).
n218 Ellis & Luckasson, supra note 213, at 484-93 (the Mental
Health Standards recognize that medical professionals often have
limited areas of expertise, such that great care must be taken to match
the professional with the defendant).
n219 See, e.g., S.B. GUZE, CRIMINALITY AND PSYCHIATRIC DISORDERS
(1976) (arguing that mental illnesses are no different than physical
illnesses in their ability to be diagnosed, predicted and treated based on
valid diagnosis); cf. Szasz, Criminal Responsibility and
Psychiatry, in LEGAL AND CRIMINAL PSYCHOLOGY 146-68 (H. Toch, ed.
1964) (arguing that "mental illness" is a metaphysical
expression, and that there is no scientific difference between persons who
are mentally ill and those who are mentally healthy).
n220 See Note, Medical Ethics and Competency to be Executed,
96 YALE L.J. 167 (1986) (discussing this ethical dilemma in deciding
whether a sentenced inmate has become insane).
n221 SMITH, supra note 204, at 10.
n222 Thompson v. Oklahoma, 108 S. Ct. 2687, 2710 (1988) (O'Connor, J.,
concurring). The opinion also noted that "the death penalty
has been treated differently from all other punishments." Id.
(O'Connor, J., concurring) (citing California v. Ramos, 463 U.S. 992,
998-99, 999 n.9 (1983)).
n223 Trop v. Dallas, 356 U.S. 86, 101 (1958) (Warren, C.J., plurality