Majority Opinion in Atkins v. Virginia

Justices Young, Clawson, and Hanson



Initially, it is the decision of this court that the death penalty is not a constructive or proportional punishment for any mentally retarded offender.  The Eighth Amendment’s protection against excessive, cruel and unusual punishment protects against the execution of those who are mentally retarded for two reasons.  The first involves the issue of diminished culpability; the second, that of proportionality.

It was determined and agreed upon by respondent that Atkins’ IQ is indeed 59.  There is no question that Atkins therefore falls under the medically-defined category of mentally retarded.  As stated by the counsel for the appellant, this IQ gives Atkins the mental capacities of a child no older than 12 years of age.[1]  The deficient mental capacities found in the mentally retarded diminish criminal culpability.  While it is true that diminished culpability does not warrant exemption from punishment, it is the opinion of this court that the application of the death penalty to those with diminished culpability such as Atkins is excessive, and constitutes cruel and unusual punishment as prohibited by the Eighth Amendment.  Just as the precedent established in Stanford v. Kentucky in 1989 prohibits the execution of offenders younger than 16 years of age, so must it apply to offenders with the mental capacity of a person younger than 16 years of age. 

From this finding it follows that Atkins’ punishment of execution is not proportional to his crime.  The death penalty is reserved for the most heinous of crimes,[2] most recently limited to capital murder in 16 of the 18 states with death penalty statutes on record.[3]  The severity of murder depends not only on the manner in which it was committed, but also in the intention behind it.  An accidental homicide in a drugstore holdup, for example, can hardly be considered equally severe to a premeditated murder.  The question, then, is how severe the crimes committed by Atkins truly are.  To address this, we must return to the issue of his impaired mental capacity.  Murder committed by a mentally retarded person is understood as less heinous because of the diminished culpability of the offender.  Indeed, this standard has been confirmed by the many states prohibiting the execution of mentally retarded criminals.  12 states do not maintain the death penalty as criminal punishment and 18 states prohibit the execution of mentally retarded criminals.[4]  The fact that even 18 states with the death penalty refuse to apply it to mentally retarded offenders suggests that, beyond being only questionably appropriate for criminals of average intelligence, the death penalty is already widely considered excessive for offenders with mental retardation.  In addition, the many amicus curiae briefs filed in this case, support the appellant’s allegation of a growing national consensus on the unacceptability of the execution of mentally retarded persons. 


It can be said that to categorically exempt mentally retarded offenders from the death penalty would establish a precedent open to abuse by offenders who are not mentally retarded.  For example, a defendant of average intelligence accused of murder could plausibly perform badly on an IQ test in order to claim mental retardation.  What is to prevent the accused from deliberately underperforming on an IQ test?  The answer to this lies in the strictness of the standards for determining mental retardation.  These standards require not only an assessment of the individual’s IQ, but also an examination of the individual’s mental and social history—for example, in school records—to identify a history of retardation.  This history currently constitutes a major factor in determining mental capacity.  It is expected to continue as such, and to thereby supplement or balance the IQ test as needed.  It is true that an insufficient intelligence assessment can have devastating results.  Not only can it involuntarily allow the unjust exemption of an offender from punishment, but, perhaps more tragically, it can condemn an offender to disproportionate punishment—as Atkins was.  It seems that the effect of the precedent established by this ruling would be to “err” in favor of the truly mentally retarded defendant, instead of in favor of the forger of retardation.  The court system can rely on a thorough assessment of an individual’s mental capacity to prevent abuse of the assessment practice by offenders. 


Beyond the evidence of a national consensus, this court finds that mentally retarded defendants under no circumstances can be executed on the basis of deterrence and retribution, the traditional motives of capital punishment.  The two justifications cited by this court in Gregg v. Georgia on which capital punishment may be given, deterrence and retribution, cannot be said to apply to mentally retarded individuals.  As the appellant rightfully points out, “it is abundantly clear that the death penalty as a means of deterrence is lost on the mentally retarded.”[5]   Mentally retarded offenders cannot be expected to fully consider the penalties for their crimes; indeed, the very basis on which such defendants are less culpable is their inability to understand the consequences of their actions. 

It is the same cognitive and behavioral impairments that make these defendants less morally culpable – for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses – that also make it less likely that they can process the information of the possibility of execution as a penalty, and as a result, control their conduct based on that information.[6]

In respect to retribution, such a justification for executing mentally retarded defendants also fails on the basis that such persons can not be held fully culpable for their crimes.  In Gregg this court ruled that the death penalty must be reserved for the most serious of crimes, and that the ultimate punishment of the state was dependent on a defendant’s culpability.  The culpability of a retarded defendant being diminished means that the ultimate punishment of the state can not be applied to such persons. 


Aside from the finding that a national consensus exists and the execution of mentally retarded defendants cannot be justified by the standards established in Gregg, this court disputes the respondents’ argument that such a precedent wrongly interferes in a states’ ability to decide such cases individually. Central to the respondent’s case is the notion that the punishment of mentally retarded defendants “should be up to the states’ statutes, judges and juries to determine.”[7]  Backing this argument are the assertions that mentally retarded defendants have equal access to legal counsel and there is “an utter lack of evidence to determine that the mentally retarded are disproportionately convicted based on their supposed lack of ability to persuasively present their side or unwittingly confess or offer false information in their trials.”[8]  While they may not be disproportionately punished, it is obvious that defendants with mental disabilities are inherently disadvantaged in the courtroom.  This fact has been established by the national consensus recognized in Justice Clawson’s portion of the opinion.    

Furthermore, this court disputes the notion that state courts and juries can fairly apply the law to mentally retarded defendants.  Especially in regard to juries, the apparent demeanor of mentally retarded defendants can lead a jury to wrongly conclude that they lack remorse for their crime.  As poor witnesses they can easily lose the sympathy of a jury, while their appearance may obscure the handicap that in fact limits their culpability.  Juries cannot be relied upon to always judge defendants based on their culpability when such a factor is not always visibly apparent, and the circumstances of a case sway the emotions of jurors into handing out capital punishment when it is not warranted. 

Respondents further contend that issuing a blanket ruling outlawing the execution of mentally retarded individuals will set a needless precedent that hampers a state’s right to impose justice as it sees fit.  They argue that states must be given the leeway to decide on a case by case basis whether to execute the mentally retarded depending on their level of retardation, rather than a total prohibition.  However, if this court were to let the status quo continue and leave state justice systems in charge, theoretically men such as Daryl Atkins would continue to be executed.  Atkins clearly cannot be held fully culpable for his crime, and therefore should not be sentenced to death. Yet the respondents contend that states can successfully decide culpability on a case by case basis when this particular case illustrates how states wrongly sentence such individuals.  The fact that Atkins’ sentence was upheld on several occasions proves that states may not always be able to sufficiently guarantee protection for such individuals

Convinced that a national consensus exists that sees the execution of the mentally retarded as morally corrupt, and seeing no useful purpose for such punishments, the remaining states may no  longer  judge the mentally retarded on a case by case basis on the foundation that they can fairly and accurately judge the culpability of each mentally retarded defendant.  We therefore overturn  Penry v. Lynaugh and find that the execution of the mentally retarded constitutes cruel and unusual punishment prohibited under the eight amendment of the federal constitution. 


Finally, this court believes that the death penalty is not just cruel and unusual punishment for mentally retarded individuals. We hereby declare that it is cruel and unusual punishment for anyone. For the reasons expressed in William Brennan Furman v. Georgia (1972) at 257 - 307 and Thurgood Marshall at 314 – 374, including that it denies human dignity and is not narrowly tailored to achieve its deterrent objective, we reject the use of the death penalty in all cases. While preventing the execution of the mentally retarded as well as youth is a move in the right direction, it is insufficient to ensure that our society avoids contemporary conceptions of cruel and unusual punishment. As Justice Blackmun noted in Callins v. Collins, Feb. 22, 1994:

I no longer shall tinker with the machinery of death. For more than 20 years I have develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies...

With Justice Blackmun’s words in mind, we order the termination of the use of capital punishment.


[1] Brief for the appellant, page 2, Argument I, paragraph 2.

[2] Gregg v. Georgia.

[3] The exceptions to the limitation of capital murder are Louisiana, which offers the death penalty for aggravated rape of a victim under 12 years of age, and New Jersey, which offers the death penalty for purposeful solicitation of narcotics. The Bureau of Justice Statistics, Capital Punishment 2001.

[4] Statistic obtained from

[5] Brief for the appellant.

[6] International Justice Project Brief.

[7] Brief for the respondent.

[8] Brief for the respondent.