In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution’s prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).
The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily. However, the Supreme Court left it to the individual states to determine which offenders fit the definition of “mental retardation,” in order to enforce this constitutional restriction.
In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” 135 S.W. 3d 1 (2004). If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:
(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.
If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:
- Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, and authorities – think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?
- Has the person formulated plans and carried them through, or is his conduct impulsive?
- Does his conduct show leadership, or does it show that he is led around by others?
- Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
- Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?
- Can the person hide facts or lie effectively in his own or others’ interests?
- Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?
The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision.
In 2012, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense. The habeas court found that the applicant established mental retardation. The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.
This is an interesting area of law to me. I’ve had the occasion to dig into some literature on autism, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA. Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.
