IN THE SUPREME COURT OF FLORIDA

No. SC04-192

ELMER LEON CARROLL

Appellant,

versus,

STATE OF FLORIDA

Appellee.

ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

Case No. CR90-12464

INITIAL BRIEF OF APPELLANT

MICHAEL P. REITER Florida Bar No. 0320234

4543 Hedgewood Drive Tallahassee, FL (850) 893-4668

COUNSEL FOR APPELLANT TABLE OF CONTENTS

PRELIMINARY STATEMENT...... ii REQUEST FOR ORAL ARGUMENT...... ii

TABLE OF AUTHORITIES ...... iii-vi

STATEMENT OF CASE AND FACTS...... vi- xiii

SUMMARY OF ARGUMENT...... xiii

ARGUMENT

ISSUE I

WHETHER THE TRIAL COURT ERRED BY DENYING A SUCCESSIVE POSTCONVICTION MOTION ALLEGING AN ATKINS CLAIM WITHOUT AN EVIDENTIARY HEARING?. . 1- 22

ISSUE II

WHETHER THE TRIAL COURT ERRED IN DENIAL OF A RING CLAIM BECAUSE OF A PRIOR VIOLENT FELONY WHEN OTHER ISSUES WERE RAISED BUT NOT DISCUSSED BY THE COURT’S ORDER?...... 22- 39

CONCLUSION AND RELIEF SOUGHT ...... 39

CERTIFICATE OF SERVICE ...... 40

CERTIFICATE OF TYPE SIZE AND STYLE ...... 40

i PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit court’s order denying Appellant’s Successive Motion without a hearing. The motion was brought pursuant to Fla. R. Crim. P.

3.850 and 3.851.

The following symbols will be used to designate references to the records in the instant case:

“R” ...; Record on Direct Appeal.

“PCT”...; Transcript of Postconviction Hearing.

REQUEST FOR ORAL ARGUMENT

Mr. Carroll has been sentenced to death; Therefore, the resolution of the issues involved in this action will determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument certainly would be appropriate in this case, given the seriousness of the claims at issue and the stakes involved. Mr. Carroll, through counsel, accordingly urges that the Court permit oral argument.

ii TABLE OF AUTHORITIES

CASES PAGE

Allen v. United States, 122 S. Ct. 2653 (2002) ...... 34

Amendments to Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure, 29 Fla. L. Weekly S247 (May 20, 2004) ...... 8

Apprendi v. New Jersey, 530 U.S. 466 (2000) ...... 23,24,31,33,34

Atkins v. Virginia, 536 U.S. 304 (2002) ...... xiii,xx,1,3,15,17,18,20,21 Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002), ...... 33,37,38

Caldwell v. Mississippi, 472 U.S. 320 (1985), ...... 29

Carroll v. State, 636 So. 2d 1316 (Fla. 1994) ...... xiv,37

Carroll v. State, 815 So. 2d 601 (Fla. 2002) ...... xiv,37

DeJonge v. Oregon, 299 U.S. 353 (1937) ...... 36

Ford v. Wainwright, 477 U.S. 399 (1986) ...... 17, 18

Freeman v. State, 761 So. 2d 1055 (Fla. 2000) ...... 1

Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980) .. 19

Gregg v. Georgia, 428 U.S. 153, 183, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) ...... 19,21

Hamilton v. State,

iii 29 Fla L. Weekly S281 (June 3, 2004) ...... 1

Huff v. State, 622 So. 2d 982 (Fla. 1993) ...... xv

In re Winship, 397 U.S. 358 (1970) ...... 31

Jacobs v. State, 29 Fla. 1, L.3 Weekly S319 (June 24, 2004 ...... Jones v. United States, 526 U.S. 227, 243 n. 6 (1999) ...... 33

King v. Moore, 831 So. 2d 143 (Fla. 2002) ...... 24,25

Mullaney v. Wilbur, 421 U.S. 684, 698 (1975) ...... 32

Peede v. State, 748 So. 2d 253 (Fla. 1999) ...... 1

Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989) .. 18

Pinillos v. Cedars of Lebanon Hosp. Corp., 403 So. 2d 365 (Fla. 1981) ...... 13-15

Porter v. Moore, No. SC01-2707 (Fla. June 20, 2002) ...... 37

Porter v. State, 564 So. 2d 1060, 1063 (Fla. 1990) ...... 37

Ring v. Arizona, 536 U.S. 584 (2002) ...... xiii,1,22-25,28-31,34,37-39

Schriro v. Summerlin, 2004 U.S. Lexis 4574 (June 24, 2004)...... 23, 24

State v. Dye, 346 So. 2d 538, 541 (Fla. 1977) ...... 35

State v. Gray,

iv 435 So. 2d 816, 818 (Fla. 1983) ...... 35,36

Thornhill v. Alabama, 310 U.S. 88 (1940) ...... 36

United States v. Dionisie, 410 U.S. 19, 33 (1973) ...... 36

United States. v. Allen), 247 Fd. 3d 741 (8th Cir. 2001) ...... 34

Walton v. Arizona, 497 U.S. 639 (1990) ...... 24-26, 29

Witt v. State, 387 So. 2d 922 (Fla. 1980) ...... 24

Wood v. Georgia, 370 U.S. 375, 390 (1962) ...... 36

STATUTES AND RULES

§ 775.082, Fla. Stat...... 38

§ 921.137(1), Fla. Stat ...... 8,13,16,21

§ 921.141(3), Fla. Stat...... 31, 35, 38

18 U.S.C. sections 3591 ...... 38

18 U.S.C. section 3592(c) ...... 38

Fla. R. Crim. P. 3.140(o) ...... 39-41

Fla. R. Crim. P. 3.203 ...... 8,13,16,21

Fla. R. Crim. P. 3.850 ...... 39-41

Fla. R. Crim. P. 3.851 ...... 39-41

ARTICLES

Christopher Slobogin; What Atkins Could Mean For People With Mental Illness, 33 N.M.L. Rev. 293 (Spring, 2003) ... 20-23

v Mental Retardation: A Symptom and Syndrome, Department of Psychology, University of Alabama at Birmingham ...... 10

Mentally Retarded Criminal Defendant, 53 George Wash. L. Rev. 414, 487-488 (1985) ...... 7

MANUALS AAMR Adaptive Behavior Scales (ABS) ...... 16

Inventory for Client and Agency Planning (ICAP) .... 16, 17

Scales of Independent Behavior - Revised ...... 16

StatisticalThe American Psychiatric Association, Diagnostic and Manual of Mental Disorders, (4th ed. 1994) ..... 9, 13-15

Vineland Adaptive Behavior Scales ...... 16

vi STATEMENT OF CASE AND FACTS

On November 26, 1990, Mr. Carroll was indicted for one count of first degree felony murder and one count of sexual battery on aperson less than twelve years of age (R. 996-97).

On March 21,1992, the jury convicted Mr. Carroll as charged

(R. 1281). Penalty phase was conducted on April 13, 1992.

Following instructions and deliberations, the jury recommended that the sentence of death be imposed for the first degree felony murder of Christine McGowan (R. 1277-80; 883-964). The trial court sentenced Mr. Carroll to death, finding three aggravating circumstances and one nonstatutory mitigating circumstance (R. 965-99).

Mr. Carroll appealed his convictions and sentence of death, which were affirmed. Carroll v. State, 636 So. 2d 1316

(Fla. 1994). Mr. Carroll sought postconviction relief by filing a Florida Rule of Criminal Procedure 3.850 motion on

February 1, 1996 (PC-R. 450-571). An amended motion was filed

January 31, 1997 (PC-R. 696-832). An evidentiary hearing was held on August 4-5, 1997. On October 20, 1998, the circuit court entered its order denying Mr. Carroll relief on all claims (PC-R. 1157-85). Mr. Carroll appealed the denial of postconviction relief, which the Florida Supreme Court affirmed. Carroll v. State, 815 So. 2d 601 (Fla. 2002).

vii Mr. Carroll filed a successive postconviction motion on

April 22, 2003, pursuant to Florida Rules of Criminal

Procedure 3.850 and 3.851. A Huff1 hearing was conducted in

June 2003. The Court entered its order on January 12, 2004, denying Appellant’s successive postconviction motion without an evidentiary hearing. A Notice of Appeal was filed on

February 4, 2004.

FACTS

The facts in this case, pertaining to whether Mr. Carroll is mentally retarded, are simple--although controversial.

Intelligence Quotient

At the original trial and evidentiary hearing, a substantial number of mental health experts testified to their findings of Mr. Carroll’s IQ score.

Dr. Michael Gutman testified at the trial as follows:

“Our psychological tests showed him to have an IQ of sixty or in the sixty to sixty-nine range. Others showed it to be in the – in the high seventies to low eighties. So there was inconsistencies in the intellectual functioning and IQ testing of how smart he was.”

(R. Vol. 4, p. 512, L11)

Dr. Edward Benson testified at trial as follows:

“...And the third diagnosis I had was borderline

1Huff v. State, 622 So. 2d 982 (Fla. 1993).

viii intelligence quotient, by previous psychological tests

which showed at 79 some years past when he was regressed.”

(R. Vol. 5, p. 758, L18).

Dr. Crown testified at the evidentiary hearing:

Q. You indicated that the school records you looked to – and specifically what would that be under?

A. They are records of psychological testing conducted on Elmer Carroll at Clermont Elementary School when he as in the fifth grade when he was 12 years, two months old. The test was administered on October seventh of 1968. He was given the Weschler Intelligence Scale for children, which, which is the standard, was the standard test that was used in ‘96 (Sic.) It yielded a full-scale I.Q. of 80. My full scale I.Q. was 81. There’s a correct variance of 15 points. Allowing this is a one point difference, 81, it’s highly unlikely that someone could fake that number of a deliberate basis beginning when they were 12 years old.

(PCT Vol. 2, p. 237).

* * * * *

Q. You’re aware there has been a fairly wide range of I.Q.’s found?

A. Well, from test to test, the tests were repeated one year later when he was 13. And we had a full scale I.Q. when he was 13 of 80. I’m aware of another test that produced a verbal I.Q. of 58. That was the, there were done in, I believe, ‘90.

Q. Why do you think it was so much lower?

A. I believe it was so much lower because at the time

ix Elmer Carroll was psychotic. And psychotic individuals tend not to be able to attend to task and tend to produce extremely diminished scores. Which, which means that a person who was floridly psychotic is not a

good candidate for that type of cognitive testing because being psychotic, a psychosis is a thought disorder.

(PCT Vol. 2, p. 238).

* * * * *

Q. Are you aware that testimony was adduced at the trial of this case indicating his overall I.Q. was only 79?

A. Below one standard deviation, one standard deviation. The area below 85 would move in the borderline range.

Q. Cut off for borderline, whatever falls below that?

A. Next would be mental retardation; depending on the definition we use, would be an I.Q. areas of 69 or 70.

Q. Which definition do you use?

A. Current definition, the one that’s accepted under present standard nomenclature is 74. That’s the American Sovereign’s mental deficiency definition.

(PCT Vol. 2, p. 257-258).

Dr. Elizabeth McMahon stated the following at the evidentiary hearing:

Q. That was probably – in your opinion, would Mr. Carroll have suffered from this prior to being incarcerated?

x A. Oh, yes, yeah. In his testing prior to anything. I mean we’re not talking malingering when he’s 12 or 13 years old in school. Back then his test scores are the same. He still can’t read, can’t do arithmetic, still having, he’s very slow.

The teachers repeat this as, as well, the fact is that he starts off with okay grades, he starts off in the first, second, third grade, makes A’s and B’s. Gradually you see it down to all F’s, until he drops out of school in the 7th grade.

(PCT Vol. 2, p. 329).

Adaptive Behavior

Although no evidence was presented that any tests were administered to Mr. Carroll to determine deficits of adaptive behavior, there was testimony revealing some of his deficits in that area.

Dr. Crown testified as follows:

He also revealed to me hadn’t really learned how to read until he was 26 years old.

(PCT Vol. 2, p. 227).

* * * * *

So, we could expect him to be problem solving at about the level of someone who’s 11 years and five months old, preadolescent.

(PCT Vol. 2, p. 229).

* * * * *

He has an age equivalency in terms of attentional capacities that place him at the, about the level of someone who was about eighty years old suffering from the beginning of a degenerative process.

xi (PCT Vol. 2, p. 231).

* * * * *

I found in terms of non-verbal memory and recall he would confabulation, had constancy deficits. This meant when we eliminate language totally he has a great deal of difficulty processing information, even with, on a non- language basis. Additionally, I found that in measures of mental capacity or mental flexibility or conceptual flexibility that he produced errors when errors would not be expected due to frustration, and actually became quite confused even

involving simple tasks, the equivalent of connecting dots in sequence. He displayed construct deficits.

(PCT Vol. 2, p. 231).

* * * * *

He also tended to perservation. That means he’s stuck to a wrong answer and would not consider options in changing. He had a great deal of difficulty using new information, taking in new information, taking it in and applying it in a problem-solving situation. For that he was three standard deviations below the mean...

(PCT Vol. 2, p. 232).

In terms of his general ability, his reading ability was about the second grade level, spelling at about the third grade, simple arithmetic at about the fifth grade level. That’s actually a range in the .08 percentile. That means that roughly better than 99 out of 100 people are able to process this better than he.

(PCT Vol. 2, p. 232).

* * * * *

Q. What about the fact his mother had been drinking?

xii A. From all accounts, his mother drank regularly, was heavily involve with alcohol and didn’t take time out from her drinking during the course of her pregnancy. And of course that certainly suggests exposure to alcohol in utero.

Q. What sort of effect, based on your experience, does that have on, could that have on the brain?

A. It tends to fall under the broad inclusionary category that’s referred to as fetal alcohol syndrome. But fetal alcohol syndrome presents itself with a border line I.Q., with learning difficulties and problems and with problems in control, behavioral control. From a review of these records, it’s clear that Elmer

Carroll has all of those problems that would meet the criteria for fetal alcohol syndrome.

(PCT Vol. 2, p. 244).

SUMMARY OF ARGUMENT

The Appellant’s Atkins2 claim in his successive postconviction motion was facially sufficient and not conclusively refuted by the record, and therefore should have been granted an evidentiary hearing. The facts for the element of “Adaptive Skills” pertaining to mental retardation or the claim of “Equal Protection” for the mentally ill were not adequately presented at trial or at the evidentiary hearing. The Trial Court could not intelligently

2Atkins v. Virginia, 536 U.S. 304 (2002).

xiii rule upon the issue without the crucible of an evidentiary hearing.

The Trial Court’s order denying Appellant’s Ring3 claim limits its denial on the ground of a prior violent felony conviction. The Trial Court’s order fails to discuss the effects of the other errors alleged in the motion. It is the contention of the Appellant that the other errors alleged are not negated based upon the prior violent felonies. The Trial

Court should have granted an evidentiary hearing.

3Ring v. Arizona, 536 U.S. 584 (2002).

xiv ARGUMENT

ISSUE I

WHETHER THE TRIAL COURT ERRED BY DENYING A SUCCESSIVE POSTCONVICTION MOTION ALLEGING AN ATKINS CLAIM WITHOUT AN EVIDENTIARY HEARING?

This Court has consistently expressed the requirement for an evidentiary hearing where the postconviction motion is facially sufficient and not conclusively refuted by the record. Hamilton v. State, 29 Fla. L. Weekly S281 (Fla. June

3, 2004); Freeman v. State, 761 So. 2d 1055 (Fla. 2000); and

Peede v. State, 748 So. 2d 253 (Fla. 1999). Further, in a recent case, this Court has described a more detailed description of what the trial court is required to perform under Fla. R. Crim. P. 3.850. In Jacobs v. State, 29 Fla. L.

Weekly S319 (June 24, 2004), this Court stated:

Under these comprehensive provisions a trial court's consideration of a motion under rule 3.850 involves a number of possible steps: First, a trial court must determine whether the motion is facially sufficient, i.e., whether it sets out a cognizable claim for relief based upon the legal and factual grounds asserted. It would logically follow that if no valid claim is alleged, the court may deny the motion outright, and the court need not examine the record. Second, if the court determines that the motion is facially sufficient, the court may then review the record. If the record conclusively refutes the alleged claim, the claim may be denied. In doing so, the court is required to attach those portions of the record that conclusively refute the claim to its order of denial. Third, if the court determines that the motion is facially sufficient and that there are no files or records conclusively

1 showing that the movant is not entitled to relief, the court may order the state attorney's office to file a response to the defendant's motion. The state attorney must respond to the allegations of the motion, state whether the movant has pursued any other available remedies (including any other postconviction motions), and state whether the defendant received an evidentiary hearing. Fourth, after the state attorney has filed the required response, the trial judge must determine whether the claims alleged in the motion have been denied at a previous stage in the proceedings. Finally, if the claims presented in the motion have not been denied previously, the judge shall then determine whether an evidentiary hearing is required in order to resolve the claims alleged in the motion. Thus, if the trial court finds that the motion is facially sufficient, that the claim is not conclusively refuted by the record, and that the claim is not otherwise procedurally barred, the trial court should hold an evidentiary hearing to resolve the claim. Thus, rule 3.850 distinguishes between claims that are facially insufficient and those that are facially sufficient but are also conclusively refuted by the record. A determination of facial sufficiency will rest upon an examination of the face, or contents, of the postconviction motion. Because the determination of facial sufficiency under rule 3.850 is one of law and involves an evaluation of the legal sufficiency of the claim alleged, the evidence in the record will ordinarily be irrelevant to such an evaluation. The examination of the record will ordinarily come only after a claim is found to be facially sufficient, and the purpose of that examination will be solely to determine whether the record conclusively refutes the claim.

[emphasis added]

Although the Trial Court’s order denying Appellant’s motion without an evidentiary hearing didn’t state whether the

2 motion was facially sufficient, it is evident that the Trial

Court did because the Trial Court utilized the second step of the analysis expressed above: the motion was facially sufficient, but refuted by the record. The order described some testimony and facts apparently gleaned from the trial and the evidentiary hearing. However, the Trial Court failed to specifically comply with the second step because it failed to attach to the order those portions of the record the Trial

Court believed conclusively refuted Appellant’s claim. The

Trial Court also failed to state what standard of proof it utilized in determining that the record refuted Appellant’s claim, especially since there was evidence of IQ scores below

70.

Mental Retardation

"Significantly Subaverage General Intellectual

Functioning"

Attachments or not, it is clear from the Trial Court’s rationale that the determination of whether an individual is mentally retarded begins and ends with his IQ score: “Clearly,

Defendant does not meet the definition of mentally retarded as set forth in Atkins because his IQ score is and was over 75.”

(Order p. 8).

The Trial Court’s statement as to 75 “set forth by

3 Atkins” is inaccurate. The Court in Atkins specifically provided for the states to determine their own definition of

“mentally retarded.” The Court in Atkins merely makes references to organizations that utilize an IQ of 75 as a definition of someone who is mentally retarded. No rule or definition was announced by that Court binding upon any state.

The issue of what IQ score should be considered as the cutoff for mental retardation will be discussed below.4 Further, the

Trial Court’s finding that the Appellant’s IQ is over 75 is premature, because the records utilized by the Trial Court to make that finding were incomplete, inconsistent, and analyzed outside the context of a mental retardation hearing. There are a number of record cites showing inconsistencies in the

Appellant’s scores over the years, some below 75.

The Trial Court’s order cites to some records reporting

IQ scores of the Appellant: (1) The testimony contained on page 229 indicates that Defendant’s IQ is 81, not 75 [Order p.

10];(2) The only mention of an IQ score of 75 is found on page

392 of the postconviction transcript where one of the experts testified that Defendant’s school records showed “I.Q.’s ranging from 80 to in the 75 to 85 range”; and (3) All of the

4The undersigned is cognizant of this Court’s new rule and Florida Statutes regarding “two standard deviations” from the mean. This will be discussed below.

4 testimony presented both at trial and during the postconviction proceedings confirm that Defendant’s IQ score ranged from 75 to 85 while Defendant was in school. (PCT 237-

238, 392)(Order p. 7).

However, there was other testimony regarding Appellant’s

IQ test scores. Dr. Michael Gutman testified at the trial as follows:

“Our psychological tests showed him to have an IQ of sixty or in the sixty to sixty-nine range. Others showed it to be in the – in the high seventies to low eighties. So there was inconsistencies in the intellectual functioning and IQ testing of how smart he was.”

(R. Vol 4, p. 512, L11).

Dr. Edward Benson testified at trial as follows:

“...and the third diagnosis I had was borderline intelligence quotient, by previous psychological tests which showed at 79 some years past when he was regressed.”

(R. Vol. 5, p. 758, L18).

At the postconviction evidentiary hearing, Dr. Crown testified as follows:

“He had a great deal of difficulty using new information, taking in new information. Taking it in and applying it in a problem-solving situation. For that he was three standard deviations below the mean. Again, that places him at around the 10th percentile level. In terms of his general ability, his reading ability was at about the second grade level, spelling at about the third grade, simple arithmetic

5 at about the fifth grade level. That’s actually a range in the .08 percentile. That means that roughly better than 99 out of 100 people are able to process this better than he. And even at his best, 98 out of a hundred are able to function at a level that’s significantly high than he is.”

(PCT Vol. 2, p. 229).

During cross-examination of Dr. Crown by the State, the following exchange occurred:

Q. Are you aware that testimony was adduced at the trial of this case indicating his overall I.Q. was only 79?

A. There’s no difference between 79 and 81. Statistically, there’s a variance of 15 points. I say 81, it’s really plus/minus 15, so 79 statistically the same as 81.

Q. What is the cutoff for borderline retardation?

A. Below one standard deviation, one standard deviation. The area below 85 would move in the borderline range.

Q. Cutoff for borderline, whatever falls below that?

A. Next would be mental retardation; depending on the definition we use, would be an IQ areas of 69 or 70.

Q. Which definition do you use?

A. Current definition, the one that’s accepted under present standard nomenclature is 74. That’s the American Sovereign’s mental deficiency definition.

(PCT Vol. 2, p. 257-258).

Also in the Trial Court’s order denying an evidentiary hearing, he states: “Rather, testimony showed that initially

6 Defendant made A’s and B’s in elementary school which negates any inference that Defendant could be mentally retarded.” (PCT

330). However, this statement is taken out of context because

Appellant attended special education classes. Dr. Elizabeth

McMahon stated the following:

Q. That was probably – in your opinion, would Mr. Carroll have suffered from this prior to being incarcerated?

A. Oh, yes, yeah. In his testing prior to anything. I mean we’re not talking malingering when he’s 12 or 13 years old in school. Back then his test scores are the same. He still can’t read, can’t do arithmetic, still having, he’s very slow.

The teachers repeat this as, as well, the fact is that he starts off with okay grades, he starts off in the first, second, third grade, makes A’s and B’s.

Gradually you see it down to all F’s, until he drops out of school in the 7th grade.

(PCT Vol. 2, p. 329).

Inasmuch as there was a substantial variance of test scores reported--from sixties to high seventies and low eighties--fairness would dictate that the Trial Court should have granted an evidentiary hearing to explore the explanations as to those varying scores and the rationale behind the establishment of the cutoff IQ score. All of these reported scores were testified outside the criteria

7 necessary to determine whether Appellant was mentally retarded. None of the mental health experts were requested to review the Appellant in the context of mental retardation.

None of the testimony considered both prongs of the definition of mental retardation.

Courts should not operate under the illusion that the simple administration of any test will resolve all questions regarding a retarded person’s status in a criminal case. Systematic assessment requires the thoughtful selection and administration of valid examination instruments together with careful observation, interviewing, and analysis of all the data by a professional with proper training and experience.

Mentally Retarded Criminal Defendant, 53 George Wash. L. Rev.

414, 487-488 (1985).

At an evidentiary hearing, it would be established that most recently Appellant has scored an IQ result of 75. Also at an evidentiary hearing, it would be established that at the time of the offense, the Appellant was most certainly

“functionally mentally retarded,” due to his psychosis and a score of 58 on his IQ test.

This Court has set out a rule regarding the definition of mental retardation: Amendments to Florida Rules of Criminal

Procedure and Florida Rules of Appellate Procedure, 29 Fla. L.

Weekly S247 (May 20, 2004).

Fla. R. Crim. P. 3.203 defines mental retardation as:

8 (b) Definition of Mental Retardation.5 As used in this rule, the term

"mental retardation" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term "significantly subaverage general intellectual functioning," for the purpose of this rule, means performance that is two or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and Family Services in rule 65B-4.032 of the Florida Administrative Code. The term "adaptive behavior," for the purpose of this rule, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.

It is imperative to note that while Fla. R. Crim. P.

3.203 and § 921.137(1), Fla. Stat. refer to “two or more standard deviations,” they fail to consider the fallibility of the tests. They also fail to explain any rational basis for the establishment of “two or more standard deviations,” or the interrelationship between IQ scores and adaptive behavior.

They fail to express any flexibility between the two components--whether intentional or not. The American

Psychiatric Association, Diagnostic and Statistical Manual of

5The undersigned would point out that this Court has extended the time for the adoption of this rule to October 1, 2004, and has allowed additional comments regarding the rule to be submitted on or before August 10, 2004. The undersigned respectfully requests this Court to consider this brief as compliance with submission of additional comments as set out in this Court’s opinion.

9 Mental Disorders, (4th ed. 1994)(DSM-IV) explains these circumstances.

General intellectual functioning is defined by the intelligence quotient (IQ or equivalent) obtained by assessment with one or more of the standardized, individual administered intelligence tests (e.g. Wechsler Intelligence Scales for Children-revised, Stanford-Binet, Kaufman Assessment Battery for Children). Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary instrument to instrument (e.g., a Wechsler IQ of 70 is considered to represent a score of 65-75). Thus, it is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficit in adaptive behavior. Conversely, Mental Retardation would not be diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or impairments in adaptive functioning. The choice of testing instruments and interpretation of results should take into account factors that may limit test performance (e.g., the individual’s sociocultural background, native language, and associated communicative, motor, and sensory handicaps). When there is significant scatter in the subtest scores, the profile of strengths and weaknesses, rather than the mathematically derived full-scale IQ, will more accurately reflect the person’s learning abilities. When there is a marked discrepance across verbal and performance scores,

averaging to obtain a full-scale IQ score can be misleading.

(p. 40-41) [emphasis added].

The records of the Appellant clearly indicate that there

10 was a significant scatter between IQ test scores--60s to low

80s. According to DSM-IV, when scattered scores occur, the subtest scores are more reliable than the full-scale score.

Dr. Crown testified that in some areas Appellant was more than three standard deviations below the mean: “Taking it in and applying it in a problem-solving situation. For that he was three standard deviations below the mean.” (PCT Vol. 2, p.

229).

Ultimately, the Trial Court correctly found that the

Appellant had facially stated a claim for relief, but incorrectly determined that record refuted the Appellant’s claim. The Trial Court had insufficient information to make that determination without an evidentiary hearing.

What also needs to be considered is the history and basis for an IQ level of below 70 as the defining cutoff number for mental retardation. This arbitrary number was established by the American Association on Mental Deficiency (Retardation) in

1973. Before Appellant turned 18 years of age, his IQ test scores qualified him as “mentally retarded” according to existing standards that set out the definition of mentally retarded by the American Association on Mental Deficiency

(Retardation). A brief history of mental retardation has been written in an article entitled: Mental Retardation: A Symptom

11 and Syndrome, Department of Psychology, University of Alabama at Birmingham (Complete article can be found at www.uab.edu/cogdev/mentreta.htm). A relevant portion of the article states as follows:

As a result of the conflicting views and definitions of mental retardation, a growing number of labels used to refer to individuals with mental retardation, and a change in emphasis from a genetic or constitutional focus to a desire for a function-based definition, the American Association on Mental Deficiency (Retardation) proposed and adopted a three-part definition in 1959. "Mental retardation refers to subaverage general intellectual functioning which originates in the developmental period and is associated with impairment in adaptive behavior" (Heber, 1961). Although this definition included the three components of low IQ (<85), impaired adaptive behavior, and origination before age 16, only IQ and age of onset were measurable with the existing psychometric techniques. Deficits in adaptive behavior were generally based on subjective interpretations by individual evaluators even though the Vineland Social Maturity Scale was available (Sheerenberger, 1983). In addition to the revised definition, a five level classification scheme was introduced replacing the previous three level system which had acquired a very negative connotation. The generic terms of borderline (IQ 67-83), mild (IQ 50-66), moderate (IQ 33-49), severe (16-32), and profound (IQ <16) were adopted. Due to concern about the over or misidentification of mental retardation, particularly in minority populations, the definition was revised in 1973 (Grossman, 1973) eliminating the borderline classification from the interpretation of significant, subaverage, general intellectual functioning. The upper IQ boundary changed from <85 to < 70. This change significantly reduced the number of individuals who were previously identified as mentally retarded impacting the eligibility criteria for special school services and

12 governmental supports. Many children who might have benefitted from special assistance were now ineligible for such help. A 1977 revision (Grossman, 1977) modified the upper IQ limit to 70 - 75 to account for measurement error. IQ performance resulting in scores of 71 through 75 were only consistent with mental retardation when significant deficits in adaptive behavior were present. The most recent change in the definition of mental retardation was adopted in 1992 by the American Association on Mental Retardation. "Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18" (American Association on Mental Retardation, 1992). On the surface, this latest definition does not appear much different than its recent predecessors. However, the focus on the functional status of the individual with mental retardation is much more delineated and critical in this definition. There is also a focus on the impact of environmental influences on adaptive skills development that was absent in previous definitions. Finally, this revision eliminated the severity level classification scheme in favor of one that addresses the type and intensity of support needed: intermittent, limited, extensive, or pervasive. Practically, a child under age 18 must have an IQ < 75 and deficits in at least 2 of the adaptive behavior domains indicated in the definition to obtain a diagnosis of mental retardation.

[emphasis added].

Assuming the authors of the article are correct as to why the definition changed in 1972, the implication is that social, racial, and financial motives were at play, rather

13 than what is truly “significant subaverage general intellectual functioning.”

The Appellant recognizes the State’s inherent right to make legislation for the interest of its citizens, and to define “significantly subaverage general intellectual functioning” for mental retardation. However, it is also the

State’s obligation to have a “rational” basis of its legislation when affecting a constitutional right. In,

Pinillos v. Cedars of Lebanon Hosp. Corp., 403 So. 2d 365

(Fla. 1981), this Court stated:

Since no suspect class or fundamental right expressly or impliedly protected by the constitution is implicated by section 768.50, we find that the rational basis test rather than the strict scrutiny test should be employed in evaluating this statute against plaintiffs' equal protection challenge. The rational basis test requires that a statute bear a reasonable relationship to a legitimate state interest, and the burden is on the challenger to prove that a statute does not rest on any reasonable basis or that it is arbitrary.

Assuming for the moment no suspect class is involved, it is the Appellant’s contention that while the State has a reasonable basis to legislate a legitimate state interest in establishing a standard of qualification for mental retardation, the State must at least establish a reasonable basis for establishing that standard. This is especially critical in death penalty cases, since execution is a

14 permanent result. National consensus of the mental health community should not be adopted as the standard, when that standard was created for social, racial, and financial purposes. Courts, in general, have never bowed to the unquestioned experts’ opinion. Courts and juries have always inquired into explanations for expert opinions and have frequently disregarded those opinions. Fla. R. Crim. P. 3.203 and § 921.137(1), Fla. Stat. do not rest on any reasonable basis and is arbitrary. This Court should not blindly accept a “national consensus” to define “significant subaverage intellectual functioning” without proper inquiry in order to determine the psychological and medical reasoning behind the standard.

Appellant is entitled to an evidentiary hearing, as the records do not conclusively refute the Appellant’s claim of mental retardation.

“Adaptive Behavior”

According to DSM-IV, the second prong of the definition is even more important than using IQ scores as a determination of mental. Although the Trial Court primarily based its decision on Appellant’s IQ, it did, however, make mere reference in its order regarding adaptive skills: “While

Defendant’s childhood was difficult and unusual, there was no

15 evidence presented which showed that Defendant had not adapted to his environment.” (Order p. 8).

First, “adapted to his environment” is not the standard.

Second, no evidence specifically referencing “adaptive behavior” was presented at trial or at the evidentiary hearing, because the Appellant made no claim of mental retardation. At trial and at the evidentiary hearing, it was apparent that Trial Counsel’s strategy was to establish the mental infirmities of Appellant. Whether he was mentally retarded and/or just mentally ill, the labels were unimportant; it was the effect of Appellant’s thought processes that were paramount for counsel to establish. Note that at the time of trial and the evidentiary hearing, Atkins had not been decided and there was no exemption from execution for mentally retarded individuals. As pointed out by the

Trial Court in its order, Appellant’s primary defense was that he was insane at the time of the offense. (Order p. 1-2).

However, some testimony was presented at trial and at the evidentiary hearing relating to elements of Appellant’s behavior and adaptive skills during childhood and adolescence:

(1) Dr. Crown testified--as noted above--“he had a great deal of difficulty using new information, taking in new information. Taking it in and applying it in a problem-

16 solving situation.” (PCT Vol. 2, p. 232); (2) Dr. Crown also testified: “In terms of his general ability, his reading ability was about the second grade level, spelling at about the third grade, simple arithmetic at about the fifth grade level. That’s actually a range in the .08 percentile. That means that roughly better than 99 out of 100 people are able to process this better than he.” (PCT Vol. 2, p. 232); and (3)

Dr. McMahon testified--as noted above--“He still can’t read, can’t do arithmetic, still having, he’s very slow.” (PCT Vol.

2, p. 329).

The Trial Court’s finding that “no evidence [w]as presented which showed that Defendant had not adapted to his environment,” amounted to no more than pure conjecture in conjunction with applying the wrong standard. The Appellant contends that he should be provided an opportunity at an evidentiary hearing to establish the elements of deficit adaptive skills/behavior existing prior to the age of 18.

According to W.E. Benet, Benet Clinical Assessment,

Psychological Assessment and Testing, adaptive behavior can be assessed and measured by at least four of the most widely used adaptive behavior assessments in the United States: the Scales of Independent Behavior - Revised (SIB-R), the Vineland

Adaptive Behavior Scales, the AAMR Adaptive Behavior Scales

17 (ABS), and the Inventory for Client and Agency Planning

(ICAP). No evidence was presented that any of these tests, or any other tests, were administered to the Appellant to determine if deficits in adaptive behavior existed.

Equal Protection for the Mentally Ill

Even if it is determined that the Appellant does not meet the standards of mental retardation, the record is undisputed that he suffers from severe mental illness and was psychotic at the time of the offense. Individuals who are mentally ill suffer many of the same deficits as mental retardation and should be treated similarly. Fla. R. Crim. P. 3.203 and §

921.137(1), Fla. Stat. violate Appellant’s federal and state constitutional right to Equal Protection.

The Trial Court’s order denying Appellant’s motion states the Appellant’s position regarding Atkins is partially correct: “...he seeks to have the holding in Atkins extended to the mentally ill in addition to the mentally retarded.”

However, the Trial Court misapprehends the extent of

Appellant’s claim. Although, the Trial Court acknowledges

Appellant’s Equal Protection claim, it fails to discuss its application. The Trial Court simply separates the issue of mental retardation from mental illness issues. The Trial

Court stated: “There is, however, no need for the Atkins

18 decision to be applied to the mentally ill because the Supreme

Court has already held that the Eighth Amendment of the United

States Constitution prohibits the execution of insane prisoners and there are already numerous safeguards in place for the protection of the truly insane.” (Order p. 9). In support of this finding the Trial Court cites Ford v.

Wainwright, 477 U.S. 399 (1986).

The crux of the issue in Ford is whether a prisoner is able to rationally understand his/her impending execution and the reason for it. Ford, 477 U.S. at 422. This standard only applies in a post-warrant situation to anyone, whether mentally retarded or mentally ill. The Court in Atkins points this out in footnote 8, that Jerome Bowden, a mentally retarded individual, was executed because he understood the nature of his crime and his punishment. Id. at 346. However, the Atkins standard is based upon a particular mental condition of an individual “categorically exclud[i]ng” him from being eligible for the death penalty, not his state of mind at the time of execution.

At the outset of the Atkins opinion, Justice Stevens stated:

Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning,

19 judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are "cruel and unusual punishments" prohibited by the Eighth Amendment to the Federal Constitution.

Id. at 306. [emphasis added].

Atkins went on further to state the justifiable basis for upholding the death penalty: “retribution and deterrence.”

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U.S. 153, 183, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976), identified "retribution and deterrence of capital crimes by prospective offenders" as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person "measurably contributes to one or both of these goals, it 'is nothing more than the purposeless and needless imposition of pain and suffering,' and hence an unconstitutional punishment." Enmund, 458 U.S. at 798. With respect to retribution -- the interest in seeing that the offender gets his "just deserts" -- the severity of the appropriate punishment

20 necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980), we set aside a death sentence because the petitioner's crimes did not reflect "a consciousness materially more 'depraved' than that of any person guilty of murder." Id., at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence -- the interest in preventing capital crimes by prospective offenders - - "it seems likely that 'capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,'" Enmund, 458 U.S. at 799. Exempting the mentally retarded from that punishment will not affect the "cold calculus that precedes the decision" of other potential murderers. Gregg, 428 U.S. at 186. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded] offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet 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 upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty

21 with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

Id. at 349-350.

Certainly, it cannot be justifiably argued that by substituting “mentally ill” for “mentally retarded” in the above discussion, the same analysis doesn’t apply. Doesn’t the mentally ill have disabilities in the areas of “reasoning, judgment, and control of their impulses?” Doesn’t the explanation of “retribution and deterrence” apply equally as well to the mentally ill? Of course it does. So, then hasn’t the application of Atkins been applied to the mentally ill?

The answer to these questions have been argued in extreme detail by Christopher Slobogin in his article entitled: What

Atkins Could Mean For People With Mental Illness, 33 N.M.L.

Rev. 293 (Spring, 2003). (Appendix A).

There was substantial debate between the majority and dissent in Atkins about consensus, retribution, and deterrence considerations as justification for “why have a death penalty and who is immune?” Justice Scalia pointed out that incapacitation was also a justifiable use of the death penalty, not considered by the majority. Atkins, 536 U.S. at

350.

22 However, it is ironic that while the courts try to incorporate legal concepts into practical results, a quagmire of logical inconsistencies occurs. For example, Justice

Scalia states:

The Court conveniently ignores a third "social purpose" of the death penalty -- "incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future," Gregg v. Georgia, 428 U.S. 153, 183, n. 28, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976).

Yet our laws prohibit the conviction, let alone execution, of an individual who is found to be mentally ill and does not “know right from wrong or the consequences of his actions.” Under this type of circumstance a mentally retarded or mentally ill person who is acquitted due to this legal concept may very well be able to “otherwise commit crimes in the future.”

Life incarceration without parole also incapacitates, at least to the general public, those who could be dangerous in the future. If the basic principles of excluding the mentally retarded from execution are truly stated in Atkins, which is:

“Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct;” then how can it be

23 rationally justified that the same doesn’t apply to the mentally ill?

Christopher Slobogin states this thought clearly in his conclusion:

Now that people with mental retardation cannot be executed, execution of people who have significant mental illness at the time of the offense is difficult to defend on rational grounds, whether the forum is judicial, legislative, or executive. n144. The primary reason such executions continue is a disproportionate fear of people with mental illness. Prohibiting imposition of the death penalty on these people would dramatically highlight the irrationality of that fear.

(Appendix A, p. 10).

The Appellant is entitled to an evidentiary hearing on whether he qualifies as mentally retarded, whether Fla. R.

Crim. P. 3.203 and § 921.137(1), Fla. Stat. are constitutional, whether he is mentally ill, and whether execution of the mentally ill violates equal protection.

ISSUE II

WHETHER THE TRIAL COURT ERRED BY DENYING A RING CLAIM BECAUSE OF A PRIOR VIOLENT FELONY WITHOUT DISCUSSING THE OTHER ISSUES RAISED IN RING?

At the outset of this argument, Appellant concedes the

Trial Court’s order is accurate that this Court has consistently rejected postconviction claims that Florida’s

24 capital sentencing scheme is unconstitutional based on Ring, and that Appellant was found to have been previously convicted of two prior felony convictions involving the use or threat of violence to the person.

Further, Appellant is cognizant that the Court in Schriro v. Summerlin, 2004 U.S. Lexis 4574 (June 24, 2004) declared that Ring is not retroactive because its ruling amounted to a new procedural rule. The Court explained:

In Apprendi, we interpreted the constitutional due- process and jury-trial guarantees to require that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S., at 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348. In Ring, we applied this principle to a death sentence imposed under the Arizona sentencing scheme at issue here. We concluded that, because Arizona law authorized the death penalty only if an aggravating factor was present, Apprendi required the existence of such a factor to be proved to a jury rather than to a judge. 536 U.S., at 603-609, 153 L. Ed. 2d 556, 122 S. Ct. 2428.

Id. [emphasis added].

The Court went on to state:

A decision that modifies the elements of an offense is normally substantive rather than procedural. New elements alter the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful or vice versa. See Bousley, 523 U.S., at 620- 621, 140 L. Ed. 2d 828, 118 S. Ct. 1604. But that is not what Ring did; the range of conduct punished by

25 death in Arizona was the same before Ring as after. Ring held that, because Arizona's statutory aggravators restricted (as a matter of state law) the class of death-eligible defendants, those aggravators effectively were elements for federal constitutional purposes, and so were subject to the procedural requirements the Constitution attaches to trial of elements. 536 U.S., at 609, 153 L. Ed. 2d 556, 122 S. Ct. 2428. This Court's holding that, because Arizona has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court's making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive.

Id. [emphasis added].

However, this Court has ruled that in Florida the test for retroactivity is Witt v. State, 387 So. 2d 922 (Fla.

1980).

Inasmuch as the Trial Court failed to address the arguments within the motion regarding Appellant’s Ring claim, the relevant portions of the motion are restated herein. It is the contention of Appellant that the highlighted portions of the Summerlin case indicates that Ring applies to Florida because the Court specifically states that “Apprendi required the existence of such a factor to be proved to a jury rather than to a judge.”

Ring overruled Walton v. Arizona, 497 U.S. 639 (1990),

“to the extent that it allows a sentencing judge sitting without a jury, to find an aggravating circumstance necessary

26 for imposition of the death penalty.” Ring, 122 S. Ct. at

2443. The role of the jury in Florida’s capital sentencing scheme, and in particular Mr. Carroll’s capital trial, neither satisfies the Sixth Amendment, nor renders harmless the failure to satisfy Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring. On October 24, 2002, the Florida Supreme Court rendered its decisions in Bottoson v. Moore, 833 So. 2d 693

(Fla. 2002) and King v. Moore, 831 So. 2d 143 (Fla. 2002), relating to the United States Supreme Court’s decision in Ring and, thus, its impact upon the constitutionality of Florida’s death penalty sentencing scheme. A careful reading of the various separate opinions in those decisions establish that

Mr. Carroll is entitled to sentencing relief.

In both Bottoson and King, each justice wrote separate opinions explaining his or her reasoning for denying both petitioners relief. In both decisions, a per curiam opinion announced the result. In neither case does a majority of the sitting justices join the per curiam opinion or its reasoning.

In both cases, four justices wrote separate opinions explaining that they did not join the per curiam opinion, but

“concur[red] in result only.” Bottoson, 833 So. 2d at 695;

27 King, 831 So. 2d at 145.6 When the four separate opinions that concur in result only are analyzed, it is clear that relief was denied in the two cases based upon facts present in those cases that are not present in Mr. Carroll’s case. Under the logic of those four separate opinions, concurring in result only, Mr. Carroll is entitled to sentencing relief as a result of Ring v. Arizona.

Mr. Carroll’s Case.

With the four specially concurring opinions in mind, certain facts regarding Mr. Carroll’s case need to be highlighted. Initially, at the beginning of the penalty phase, the Judge’s preliminary instructions to the jury were:

Ladies and gentleman of the jury, you have found the defendant guilty of felony first degree murder. The punishment for this crime is either death or life imprisonment without possibility of parole for 25 years. The final decision as to what punishment shall be imposed rests solely with the judge of this court. However, the law requires that you, the jury, render to this Court an advisory sentence as to what punishment should be imposed upon the defendant.

(R. 885)[emphasis added].

The record also shows the prosecutor’s penalty phase

6In many ways, the Bottoson v. Moore decision contains the primary opinions of the seven justices. The Court had seven participating justices in that decision, while in King v. Moore, Justice Quince was recused. Generally, the separate opinions in King rely upon the separate opinions in Bottoson as more fully reflecting the reasoning of its author.

28 closing argument emphasized that the jurors’ role was to provide a mere recommendation:

It’s not an easy thing to do but I’m asking you, each and every one of you, individually, and you as a group, to vote to recommend the death penalty for Elmer Carroll. By your vote, tell Elmer Carroll you do not deserve to live.

(R. 946).

Defense counsel reiterated that the jurors were not responsible for the final determination whether Mr. Carroll would live or die:

Ladies and gentlemen, during this phase of the proceeding, of course, what [the prosecutor] said is that the jury has an opportunity now to advise the court, advise the court based on the law and the evidence as to a sentence. This is not to advise the court as to whether we are inflamed, whether or not we’re upset, whether our passion has overrode our judgment and whether we refuse to follow the law.

The question is whether or not the jury in this case now, during this proceeding, will render an advisory recommendation based upon the law and the evidence.

(R. 947).

While instructing the jurors prior to their sentencing deliberations, the judge never informed the jury that their recommendation would be entitled to great weight:

Ladies and gentlemen of the jury, it is now your duty to advise the Court as to what punishment should

29 be imposed upon the defendant for his crime of felony first degree murder. As you have been told, the final decision as to what punishment should be imposed is the responsibility of the Judge; however, it is your duty to follow the law that will now be given to you by the Court and render to the Court an advisory sentence based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty, and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.

Your advisory sentence should be based upon the evidence that you have heard while trying the guilt or innocence of the defendant and the evidence that has been presented to you in these proceedings.

(R. 952-953)[emphasis added].

The jury was further advised that, “In these proceedings it is not necessary that an advisory sentence be unanimous” (R. 955) but that the decision may be made by a majority of the jury (R. 956; also at R. 88). The

Court also stated:

You will now retire to consider your recommendation. When you have reached an advisory sentence in conformity with these instructions, then the form of recommendation should be signed by your foreman and returned to the court.

(R. 956).

Jurors’ Awareness of the Impact of Their Recommendation.

Mr. Carroll’s jury was specifically instructed that its role was merely to make a recommendation by a majority vote.

The jury was never told that its recommendation was binding in

30 any way. Under the circumstances, the jurors’ sense of responsibility for determining Mr. Carroll’s sentence was substantially diminished.

Justice Lewis explained in his view that “the validity of jury instructions given in [Bottoson’s] case should be addressed in light of [Bottoson’s] facial attack upon

Florida’s death penalty scheme on the basis of the holding in

Ring v. Arizona.” Bottoson, 833 So. 2d at 733.7 According to

Justice Lewis:

[I]n light of the dictates of Ring v. Arizona, it necessarily follows that Florida’s standard penalty phase jury instructions may no longer be valid and are certainly subject to further analysis under the United States Supreme Court’s Caldwell v. Mississippi, 472 U.S. 320 (1985), holding.

Id., at 731.

Pursuant to this view, Justice Lewis proceeded in his opinion to carefully review the voir dire proceedings and the jury instructions, thereby suggesting that a case-by-case analysis is warranted in determining whether any death- sentenced individuals are entitled to postconviction relief in the light of Ring v. Arizona. In his opinion, Justice Lewis

7Justice Lewis acknowledged that Ring v. Arizona has application to Florida’s death penalty statute when he wrote, after Ring, a jury’s “life recommendation must be respected.” Bottoson, 833 So. 2d at 728. He concluded that as to jury overrides in favor of death, Florida law and Ring are in “irreconcilable conflict.” Id.

31 concluded, “there was a tendency to minimize the role of the jury, not only in the standard jury instructions, but also in the trial court’s added explanation of Florida’s death penalty scheme.” Id. at 734. However, he found the standard jury instructions and judicial commentary were not so flawed in Mr.

Bottoson’s case to warrant reversal. Justice Lewis explained,

“although the standard jury instructions may not be flawed to the extent that they are invalid or require a reversal in this case, such instructions should now receive a detailed review and analysis to reflect the factors which inherently flow from

Ring.” Id. (emphasis added). Clearly, Justice Lewis’ position carries with it the unstated inference that a reversal will be required in some cases where the proper analysis is conducted and it is determined that the minimization of the jury’s role exceeded that occurring in Bottoson.

The circumstances of Mr. Carroll’s case are much more extreme than those Justice Lewis addressed in Bottoson v.

Moore. The jury repeatedly heard during the voir dire examination that their penalty phase role was to render a recommendation (R. 87-89, approximately eight times; R. 151).

They were told that the recommendation was not binding upon the judge. They were told that the decision as to what sentence to impose was the judge’s decision. One time during

32 the entire trial, prior to voir dire, the jury was informed that their decision would be accorded great weight, and in the same sentence the judge informed them that their recommendation was not binding and that it is the Court who determines punishment:

Although the verdict of penalty jury is advisory in nature and not binding upon the court, the jury’s recommendation is given great weight and deference when the court determines what punishment is appropriate.

(R. 87).

The judge never instructed the jury at any time during the penalty phase that their recommendation was entitled to any sort of weight, but instead stressed that theirs was only an advisory recommendation, and that the Court makes the final determination (R. 952-956).

Under the analysis that Justice Lewis requires, Mr.

Carroll is entitled to relief. The diminution of the juror’s role in Mr. Carroll’s case far exceeded what Justice Lewis noted was present in Bottoson.

In her opinion in Bottoson, Justice Pariente expressed her agreement with Justice Lewis: “I agree with Justice Lewis that there are deficiencies in our current death penalty sentencing instructions.” 833 So. 2d at 723.

In explaining his view of Ring and its application to the

33 Florida death penalty statute, Chief Justice Anstead stated:

Thus, Ring requires that the aggravating circumstances necessary to enhance a particular defendant’s sentence to death must be found by a jury beyond a reasonable doubt in the same manner that a jury must find that the government has proven all the elements of the crime of murder in the guilt phase. It appears that the provision for judicial findings of fact and the purely advisory role of the jury in capital sentencing in Florida falls short of the mandates announced in Ring and Apprendi for jury fact-finding.

Bottoson, 833 So. 2d at 706.8

Other Errors in Light of Ring.

The Due Process Clause of the Fourteenth Amendment requires the State to prove beyond a reasonable doubt every fact necessary to constitute a crime. In re Winship, 397 U.S.

358 (1970). The existence of “sufficient aggravating circumstances” that outweigh the mitigating circumstances is an essential element of death-penalty-eligible first degree murder because it is the sole element that distinguishes it from the crime of first degree murder, for which life is the only possible punishment. Fla. Stat. Secs. 775.082, 921.141.

For that reason, Winship requires the prosecution to prove the

8Chief Justice Anstead also indicated, “another factor important to my decision to concur in denying relief [ ] is that the U.S. Supreme Court has specifically denied Bottoson’s petition for review and lifted the stay it previously granted as to his execution.” Bottoson, 833 So. 2d at 704 n.17. However, that circumstance is not present in Mr. Carroll’s case, and thus, a different result is warranted.

34 existence of that element beyond a reasonable doubt. Mr.

Carroll’s jury was told otherwise. The instructions given to

Mr. Carroll’s jury violated the Due Process Clause of the

Fourteenth Amendment and the Sixth Amendment’s right to trial by jury because it relieved the State of its burden to prove beyond a reasonable doubt the element that “sufficient aggravating circumstances exist” which outweigh mitigating circumstances by shifting the burden of proof to Mr. Carroll to prove that the mitigating circumstances outweigh sufficient aggravating circumstances. Mullaney v. Wilbur, 421 U.S. 684,

698 (1975).

The Court gave the jury its final instructions:

[I]t is your duty to follow the law that will now be given to you by the Court and render to the Court an advisory sentence based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.

(R. 952-953)[emphasis added] and:

If you find the aggravating circumstances do not justify the death penalty, your advisory sentence should be one of life imprisonment without possibility of parole for 25 years.

Should you find sufficient aggravating circumstances do exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstances.

(R. 954)[emphasis added].

35 The imposition of this additional requirement upon the defendant was particularly onerous because comments by the prosecutor and the judge implied that the Court felt that death was the appropriate punishment. Prior to voir dire, the

Court instructed the potential jurors upon the nature of aggravating factors as follows:

The law of this state permits imposition of the death penalty only in those cases where there is shown to exist justification of one or more aggravating circumstances. The burden rests solely upon the state to prove beyond and to the exclusion of every reasonable doubt the existence of those aggravating circumstances upon which it will – upon which you will base your recommendation of death.

(R. 88)[emphasis added].

Mr. Carroll’s death sentence is also invalid and must be vacated because the elements of the offense necessary to establish capital murder were not charged in the indictment in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Florida Constitution, and

Due Process.

Mr. Carroll was indicted on one count of felony murder and one count of sexual battery upon a person less than twelve years of age, robbery, and one count of grand theft (R. 996).

The indictment failed to charge the necessary elements of capital first degree murder (R. 996-997).

36 Jones v. United States, 526 U.S. 227, 243 n. 6 (1999), held that “under the Due Process Clause of the Fifth Amendment and the notice and jury guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”

Apprendi, 530 U.S. at 466, held that the Fourteenth Amendment affords citizens the same protections when they are prosecuted under state law.9 Ring held that a death penalty statute’s aggravating factors operate as “the functional equivalent of an element of a greater offense.” 122 S. Ct. at 2441 (quoting

Apprendi, 530 U.S. at 494, n. 19).

On June 28, 2002, after the Court’s decision in Ring, the death sentence imposed in United States. v. Allen, 247 F. 3d

741 (8th Cir. 2001), was overturned when the Supreme Court granted the writ of certiorari, vacated the judgment of the

United States Court of Appeals of the Eighth Circuit upholding the death sentence, and remanded the case for reconsideration in light of Ring’s holding that aggravating factors that are prerequisites of a death sentence must be treated as elements of the offense. Allen v. United States, 122 S. Ct. 2653

9The grand jury clause of the Fifth Amendment has not been held to apply to the States. Apprendi, 530 U.S. at 477, n. 3.

37 (2002). The question presented in Allen was:

Whether aggravating factors required for a sentence of death under the Federal Death Penalty Act of 1994, 18 U.S.C. sec 3591 et. seq, are elements of a capital crime and thus must be alleged in the indictment in order to comply with the Due Process and Grand Jury clauses of the Fifth Amendment.

Like the Fifth Amendment to the United States

Constitution, Article I, Section 15 of the Florida

Constitution provides that “no person shall be tried for a capital crime without presentment or indictment by a grand jury.” Like 18 U.S.C. sections 3591 and 3592(c), Florida’s death penalty statutes, § 775.082, Fla. Stat. and § 921.141,

Fla. Stat. makes imposition of the death penalty contingent upon the government proving the existence of aggravating circumstances, establishing “sufficient aggravating circumstances” to call for a death sentence, and that the mitigating circumstances are insufficient to outweigh the aggravating circumstances. Fla. Stat. § 921.141(3). Florida law clearly requires every “element of the offense” to be alleged in the information or indictment. In State v. Dye,

346 So. 2d 538, 541 (Fla. 1977), this Court said “[a]n information must allege each of the essential elements of a crime to be valid. No essential element should be left to inference.” Further, in State v. Gray, 435 So. 2d 816, 818

(Fla. 1983), this Court stated “[w]here an indictment or

38 information wholly omits to allege one or more of the essential elements of the crime, it fails to charge a crime under the laws of the state,” an indictment in violation of this rule cannot support a conviction; the conviction can be attacked at any stage, including “by habeas corpus.”

It is impossible to know whether the grand jury in this case would have returned an indictment alleging the presence of aggravating factors, sufficient aggravating circumstances, and insufficient mitigating circumstances, and thus charging

Mr. Carroll with a crime punishable by death. The State’s authority to decide whether to seek the execution of an individual charged with a crime hardly overrides--in fact--is an archetypical reason for the constitutional requirement of neutral review of prosecutorial intentions. See e.g., United

States v. Dionisie, 410 U.S. 19, 33 (1973); Wood v. Georgia,

370 U.S. 375, 390 (1962).

The Sixth Amendment requires that “[i]n all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation ...” A conviction on a charge not made by the indictment is a denial of due process of law.

State v. Gray, supra, citing Thornhill v. Alabama, 310 U.S. 88

(1940), and DeJonge v. Oregon, 299 U.S. 353 (1937). By wholly omitting any reference to the aggravating circumstances that

39 would be relied upon by the State in seeking a death sentence, the indictment prejudicially hindered Mr. Carroll “in the preparation of a defense” to a sentence of death. Fla. R.

Crim. P. 3.140(o).

Jury Consideration of an Invalid Aggravator.

At Mr. Carroll’s penalty phase, the Court instructed the jurors:

The aggravating circumstances that you may consider are limited to any of the following that are established by the evidence.

(R. 953).

The jury was then instructed, over defense counsel’s objection, on the avoiding or preventing a lawful arrest aggravating factor. (R. 921, 957). In its sentencing order, the Court did not find the existence of this aggravator. (R.

1286, 1306). In ruling on Mr. Carroll’s habeas petition, the

Florida Supreme Court found any error in the instruction harmless under the facts of the case. Carroll v. State, 815

So. 2d 601 (Fla. 2002).

In Bottoson, Justice Pariente cited as a concern about the constitutionality of Florida’s sentencing statute that the jury may consider improper aggravators that are later struck on direct appeal:

For example, in Porter v. Moore, No. SC01-2707 (Fla. June 20, 2002), a case presently before this

40 Court on a motion for rehearing, the trial court imposed the death sentence finding four aggravators. However, this Court struck one of the aggravators on appeal. See Porter v. State, 564 So. 2d 1060, 1063 (Fla. 1990). Given the nonspecific death recommendation of the jury, it is impossible to tell whether any of the jurors relied on the aggravator this Court struck when recommending death. As a result, Porter’s death sentence may rest on an unconstitutional element.

Bottoson v. Moore, 833 So. 2d at 724, n. 65.

Clearly, Justice Pariente believes that the Florida death penalty statute and system of review violate the principles enunciated in Ring. Under her reasoning, Mr. Carroll is entitled to relief since there is no way to know whether any of the jurors considered the invalid aggravator in recommending that Mr. Carroll be sentenced to death.

In his opinion in Bottoson, Chief Justice Anstead also noted the problem with the jurors’ reliance on improper aggravators:

. . . there could hardly be any meaningful review of a Florida jury’s advisory recommendation to a trial judge since that review would rest on sheer speculation as to the basis of the recommendation, whether considering the jury collectively or the jurors individually. In other words, from a jury’s bare advisory recommendation, it would be impossible to tell which, if any aggravating circumstances, a jury or any individual juror may have determined existed.

Id. at 708.

41 Ring requires that the jury makes the unanimous finding that a capital defendant be sentenced to death based on valid aggravating factors. Because Mr. Carroll’s jury considered an invalid aggravating factor, as well as improper argument and inadmissible evidence, he is entitled to relief.

In her opinion “concur[ring] in result only” in Bottoson,

Justice Pariente said, “I believe that we must confront the fact that the implications of Ring are inescapable.” Bottoson v. Moore, 833 So. 2d at 723. Later in that opinion, she elaborated:

The crucial question after Ring is “one not of form, but of effect.” 122 S. Ct. at 2439. In effect, the maximum penalty of death can be imposed only with the additional factual finding that aggravating factors outweigh mitigating factors. In effect, Florida juries in capital cases do not do what Ring mandates – that is, make specific findings of fact regarding the aggravators necessary for the imposition of the death penalty. In effect, Florida juries advise the judge on the sentence and the judge finds the specific aggravators that support the sentence imposed. Indeed, under both the Florida and Arizona schemes, it is the judge who independently finds the aggravators necessary to impose the death sentence.

Id. at 725 (italics in original).10

Based on the foregoing, Mr. Carroll respectfully requests

10At one point she stated, “I agree with Justice Lewis that there are deficiencies in our current death penalty sentencing instructions.” Id. at 723. Accordingly, Justice Pariente opined that the standard jury instructions should be changed, as well as the verdict form used in penalty phase proceedings.

42 that his sentence of death, as well as the advisory sentence, be vacated in light of Ring v. Arizona and a life sentence imposed. At the very least, a re-sentencing proceeding that comports with the Sixth Amendment as explained by Ring v.

Arizona is required.

CONCLUSION AND RELIEF SOUGHT

The Trial Court: failed to discuss issues raised in the

Appellant’s 3.850 motion, applied an incorrect standard for adaptive behavior, incorrectly found that the record refuted

Appellant’s claim, and failed to grant an evidentiary hearing.

The Appellant respectfully prays this Court to reverse the Trial Court’s ruling and remand for an evidentiary hearing.

Michael P. Reiter 4543 Hedgewood Drive Tallahassee, FL 32309 (850) 893-4668

Michael Reiter Florida Bar #0320234 Attorney for Appellant

43 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and correct copies of the foregoing has been furnished by United States Mail, first class postage prepaid, to Scott A. Browne Assistant Attorney

General, Concourse Center #4, 3507 East Frontage Road, Suite

200, Tampa, FL 33607, Honorable Thomas Hall, Clerk of Supreme

Court, 500 South Duval Street, Tallahassee, FL 32399 this

day of ______, 2004.

CERTIFICATION OF TYPE SIZE AND STYLE

I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

______Michael P. Reiter Counsel for Appellant

44 APPENDIX A

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6 of 12 DOCUMENTS

Copyright (c) 2003 New Mexico Law Review New Mexico Law Review

Spring, 2003

33 N.M.L. Rev. 293

LENGTH: 12467 words

WHAT ATKINS COULD MEAN FOR PEOPLE WITH MENTAL ILLNESS

CHRISTOPHER SLOBOGIN *

* Stephen C. O'Connell Professor of Law, University of Florida Fredric G. Levin College of Law. I would like to thank James Ellis, Joseph Jackson, Lars Noah, and various members of the audience at the New Mexico Law Review's Symposium on Atkins, October 2002, for their comments on the ideas expressed in this essay.

SUMMARY: ... This essay expands on an argument I briefly made a few years ago, to the effect that states that prohibit execution of mentally retarded people or juveniles violate the Equal Protection Clause if they continue to authorize imposition of the death penalty on people with mental illness. ... " There are three conceivable bases for supporting continued execution of people with mental illness after Atkins, to wit: compared to mental retardation and youth, mental illness is (1) harder to diagnose, (2) less characteriological and more avoidable, and (3) more likely to lead to violent behavior. ... Let us assume, however, that the nuances just discussed do not dissuade courts from adopting the holding in Heller that there is a rational basis for believing psychosis is harder to diagnose than mental retardation. ... Even if incapacitation is a valid consideration in determining the scope of the death penalty for people with mental disability, the claim that

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people with mental illness are super dangerous is easily debunked. ... Because murderers with proven significant mental illness at the time of the offense are no more culpable or deterrable, nor any more dangerous, than juvenile murderers or murderers who suffer from mental retardation, the only possible basis for the states' continued willingness to execute members of the first group is the type of "irrational prejudice" against which Cleburne inveighed. ...

TEXT: [*293] INTRODUCTION This essay expands on an argument I briefly made a few years ago, n1 to the effect that states that prohibit execution of mentally retarded people or juveniles violate the Equal Protection Clause if they continue to authorize imposition of the death penalty on people with mental illness. At the time the earlier article was written, only thirteen states banned execution of people with retardation, n2 and a somewhat greater number prohibited execution of children under sixteen. n3 Now, of course, thanks to Jim Ellis et al. n4 and the Supreme Court's decision in Atkins v. Virginia, n5 no state is permitted to impose a death sentence on someone who suffers from mental retardation. While the constitutional status of imposing the death penalty on children remains somewhat murky, n6 the holding in Atkins barring execution of people with retardation, by itself, should dictate that execution of people who were suffering from serious mental illness at the time of their offense is also banned nationwide, if the equal protection argument is accepted. One hurdle for this argument is likely to be the Supreme Court's consistent holding that laws that differentiate based on disability need only meet the "rational basis" test, which is generally an extremely easy test to meet. n7 But that hurdle might not be as significant as many think. First, read carefully, the Supreme Court's equal protection case law can be said to require not only a plausible reason but a good reason for discrimination based on disability. n8 Second, if- as Atkins seems to indicate-the most important factors in determining which murderers may be put to death are relative culpability and deterrability, there may even not be any plausible reasons for differentiating between execution of people with mental illness and execution of people with mental retardation or juveniles. n9 Finally, it is worth noting that

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the death penalty is a special context that often produces surprising results; after all, as recently as two years ago, very few people would have predicted Atkins would be decided the way it was. [*294] Part I of this essay examines the Court's Eighth Amendment analysis, not only in Atkins, but also in Thompson v. Oklahoma, n10 which intimates that the Court will eventually prohibit execution of children in their mid-teens and below. It concludes that the best explanation for these decisions is the Court's recognition that developmentally disabled and youthful murderers are less culpable and less deterrable than the average murderer. On the assumption that the same can be said for people with significant mental illness who commit murder, part II looks at the Court's Equal Protection case law to determine how persuasive the evidence of similarity must be in order to enforce a ban on execution of people with mental illness. Finally, part III investigates more thoroughly how similar the three groups are, not just in terms of relative culpability and deterrability but also with respect to other possibly relevant variables, such as ease of identification and dangerousness. The ultimate conclusion is that distinguishing between people with significant mental illness, people with mental retardation, and juveniles in the application of capital punishment violates the Equal Protection Clause. I. EIGHTH AMENDMENT ANALYSIS Ever since Trop v. Dulles, n11 the Court has held that the Eighth Amendment's ban on "cruel and unusual" punishment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." n12 When the Court has gone looking for these "evolving standards," it has generally focused on the judgments of state legislatures as the most "objective" measure of American values. n13 It did so in Atkins as well and relied heavily on the fact that eighteen of the thirty-eight states that have the death penalty have outlawed execution of people with mental retardation in the past fourteen years. n14 The majority also found evidence of consensus in the low number of people with retardation actually executed and in the opinions of a wide array of organizations and of people surveyed in polls. n15 As Justice Scalia's dissenting opinion pointed out, however, this evidence is not very impressive when compared to the

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level of consensus typically required in Eighth Amendment cases. Most significantly, the proportion of states that prohibited execution of those with retardation prior to Atkins was positively paltry compared to the usually overwhelming legislative rejection of practices the Court has labeled "cruel and unusual." n16 In Scalia's words, "[w]hat the Court calls evidence of [*295] 'consensus' in the present case (a fudged forty-seven percent) more closely resembles evidence that we found inadequate to establish consensus in earlier cases." n17 Scalia was equally dismissive of the majority's other evidence of consensus. He disputed the majority's assumption that executions of people with mental retardation are rare, n18 and noted that, even if this were so, it likely resulted from the fact that mental retardation is a constitutionally mandated mitigating factor, n19 rather than from the stance that people with retardation should be immune from execution under all circumstances. n20 To the majority's reliance on non-legal sources of support for such a ban he awarded "the Prize for the Court's most Feeble Effort to fabricate 'national consensus'" n21 and cross-referenced to Chief Justice Rehnquist's opinion questioning the methodology of the polls and the representativeness of professional and religious organizations. n22 In the context of these rebuttals, which have some bite to them, the most crucial statement in Justice Stevens' majority opinion might be the following: "[O]bjective evidence, though of great importance, [does] not 'wholly determine' the controversy, 'for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" n23 Although other cases had adopted the same position (the subquotation comes from Coker v. Georgia n24), the gist of those opinions was that the Court's judgment can only confirm popular consensus, not trump it. n25 In these earlier cases, the opinion of the Court on the matter was largely makeweight. n26 In Atkins, in contrast, one gets the sense that the Court's [*296] "independent evaluation," n27 to use Stevens' language, was more important in justifying the decision than the legislative nose-counting. Indeed, in light of the relatively slim legislative consensus against execution of people with retardation, Scalia called this evaluation "[t]he genuinely operative portion of the opinion." n28 While this latter remark may be an overstatement, there is no doubt that the majority's "independent evaluation" is an essential part of the opinion. For present purposes, its

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importance lies in the clues it provides as to how the Supreme Court evaluates the proper scope of the death penalty as it applies to people with mental disability. The core of this evaluation in Atkins was that, because people with mental retardation have "diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others," n29 their execution does not "measurably contribute[]" to either the retributive or the deterrence goal of capital punishment. n30 Noting that precedent had established that the death penalty was reserved for the most culpable murderers, Stevens stated, "the lesser culpability of the mentally retarded offender surely does not merit that form of retribution." n31 Similarly, compared to the typical person who contemplates murder, people with mental retardation are "less likely [to] process the information of the possibility of execution as a penalty" and thus less likely to be deterred by that information. n32 Fourteen years earlier, a four-member plurality of the Court engaged in a similar analysis in concluding that the Eighth Amendment prohibits execution of juveniles [*297] under sixteen. Justice Stevens began the plurality opinion in Thompson v. Oklahoma n33 by canvassing the "objective" measures of consensus on execution of juveniles (noting, most significantly, that of the eighteen death penalty states that had addressed the issue, none permitted execution of youth below the age of sixteen n34). But, as he would do in Atkins when discussing people with mental retardation, Justice Stevens also stressed the compromised culpability and behavioral control of youth. The lesser culpability of juveniles, Justice Stevens stated, "is too obvious to require extended explanation." n35 He continued: Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult. n36 As to deterrability, "[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so

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remote as to be virtually nonexistent." n37 Without the crucial fifth vote, n38 the Thompson opinion is only an indication of where the Court may draw the line for execution of juveniles, but it is likely to place it no lower than the age of fifteen, especially now that Atkins has banned execution of people with developmental disabilities. n39 The same types of assertions that Atkins and Thompson make about people with retardation and juveniles can be made about people with significant mental illness. That does not mean, of course, that the Eighth Amendment bars the latter's execution. For despite the Court's willingness to look at more "subjective" factors, a determination that evolving standards of decency have been abridged still requires some evidence of statutory evolution, n40 and that evidence simply does not exist with respect to the execution of people with mental illness. In contrast to the legislative sentiment ranged against execution of those with mental retardation and juveniles, [*298] only one state-Connecticut-has banned imposition of the death penalty on those with mental illness who are competent to be executed. n41 At the present time, no other state is contemplating following Connecticut's lead. On the other hand, the assertion that people with mental illness are similar to people with mental retardation and juveniles in terms of relative culpability and deterrability is very relevant to Equal Protection analysis. n42 How strong that similarity must be to force an equivalent ban on execution for people with mental illness depends upon how one reads the three Court decisions that apply that analysis to classifications based on disability. Unfortunately, those cases are not at all clear on that score. II. EQUAL PROTECTION AND MENTAL DISABILITY At first glance, the Supreme Court's application of equal protection analysis to cases involving disability all seem to say the same thing: Mental disability is neither a suspect or a quasi-suspect classification, and the state needs only a rational basis, not a compelling or significant one, for discriminating on that ground. But that would be a misleading characterization of the three most pertinent decisions in this area. In the first of these cases, the Court appeared to be applying a more rigorous test than rational basis analysis requires. In the second, it never addressed the proper standard of review for cases involving disability, and in any event gave reasons for upholding the state scheme that might satisfy more heightened scrutiny. In the third, the Court's

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statement that the rational basis test was the correct one for disability cases appears to have been endorsed firmly by only three of its members, hardly a resounding affirmance. [*299] The Supreme Court's first case directly addressing application of the Equal Protection Clause to people with disability was City of Cleburne, Texas v. Cleburne Living Center. n43 There the Cleburne Living Center sued the City of Cleburne for denying it a permit to build and operate a group home for people with mental retardation. The denial occurred under authority of an ordinance that required such permits for "hospitals for the insane or feeble-minded or alcoholics or drug addicts" and for "penal institutions" but did not require permits for other multi-person units such as medical hospitals, nursing homes, apartment houses, fraternities and sororities, and private clubs. n44 The Living Center's principal contention was that these distinctions violated the Equal Protection Clause because mental retardation was either a suspect classification like race or a quasi-suspect classification like gender. n45 But the Court refused to find that mental retardation was either of these. n46 Usually, that would have been the end of the analysis. Under the rational basis test, the Court has stated that a law "must be upheld against Equal Protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification" made by the law. n47 Further, "a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." n48 Indeed, the "burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it." n49 Laws that do not rely on suspect classifications are accorded this strong presumption of validity because the judiciary should not "sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." n50 In short, losing the suspect classification battle usually means losing the equal protection war. But in Cleburne, surprisingly, the Court went on to hold that the Living Center should prevail. The majority stated that the permit requirement [*300] violated the Equal Protection Clause because it rested on "an irrational prejudice against the mentally retarded" n51 and on "mere negative attitudes, or

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fear, unsubstantiated by factors which are properly considered in a zoning proceeding." n52 In context, these statements belie a rational basis analysis. The trial court had found that the ordinance, as written and applied, was rationally related to the city's legitimate interests in "the legal responsibility of CLC and its residents,the safety and fears of residents in the adjoining neighborhood," and the number of people to be housed in the home. n53 These justifications-particularly the first two-could be said to rely on the same sort of behavioral assumptions that the Atkins Court relied upon in banning execution of people with mental retardation. If, as the Atkins Court stated, people with mental retardation have diminished abilities "to control impulses, and to understand the reactions of others," one could reasonably infer that people with mental retardation living in the community are more likely to behave antisocially, or at least offensively, and thus pose an increased risk of civil and criminal liability. Rational basis review does not require empirical research to back up this kind of inference, but in fact people with mental retardation are at least slightly more likely to engage in violent behavior than members of the general population (albeit probably not as likely to do so as people who abuse substances and those who are housed in penal institutions, the other two groups subjected to the permit process in Cleburne). n54 These observations suggest that, even if the permit denial was based on prejudice, it was not irrational prejudice, as "irrational" is usually defined in equal protection analysis. The denial may have been based on fear of people with mental retardation. But there was a "rational" basis for that fear, and danger is a factor that "may properly be considered in a zoning proceeding." n55 As others have asserted, the Court in Cleburne appeared to be judging the City's action more rigorously than it normally does in rational basis cases; it was applying, at the least, a test that some have called "rational basis with bite." n56 The second case in which the Court confronted an equal protection challenge to treatment of people with disabilities was Heller v. Doe. n57 There the comparison was not between mentally disabled people and others but rather involved the same sort [*301] of comparison made in this essay, between people with mental retardation and people with mental illness. Under Kentucky law, the standard of proof for commitment of

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the first group is clear and convincing evidence, while for the second group the standard is proof beyond a reasonable doubt. n58 A second difference between the two commitment schemes is that, in proceedings for people with retardation, close relatives and guardians may participate as parties-with the ability to hire lawyers, cross-examine witnesses, and appeal-whereas in commitment proceedings for people with mental illness the respondent is confronted only by the state. n59 The claim in Heller was that both of these differences disadvantaged people with retardation by making it easier to commit them to an institution. As in Cleburne, the Court purported to apply rational basis review in Heller. But the way it did so was curious. Given the disability of their clients, advocates for Doe argued for a heightened standard of review. n60 In dismissing that argument, one would think the Court would simply have cited the eight-year-old decision in Cleburne, which supposedly established that rational basis review was the proper standard in such cases. Instead, the Court noted that the argument for a heightened review standard had not been presented in the lower courts n61 and that applying such a standard for the first time at the Supreme Court level would disadvantage the state, which had not presented extensive evidence justifying its statutory scheme on the assumption that rational basis review was all that was required in such cases. n62 Reference to Cleburne was nowhere to be found in this discussion, suggesting at least some ambivalence about whether the Court meant what it said in that case about disability not being a suspect classification. Furthermore, in upholding both challenged aspects of Kentucky's commitment scheme, the Court gave reasons that could conceivably meet even a heightened scrutiny standard, at least at the rational-basis-with-bite level. Assuming that mental retardation is easier to diagnose than mental illness, n63 the Court noted that a state might want to protect against the greater risk of error thereby associated with commitment of the latter group through imposition of the heavier, reasonable doubt burden on the state. n64 In other words, the Kentucky scheme could easily be characterized as an attempt to protect people with mental illness, not the result of bias against people with mental retardation, a position that is bolstered by the fact that the clear and convincing standard Kentucky applied to the latter group is clearly constitutionally adequate. n65 Relatively good reasons also can be given for granting [*302] party status to relatives

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and guardians of people with mental retardation. As the Court pointed out, n66 given the stable nature of retardation and its very early onset, relatives and guardians of people with that condition are likely to have more probative insights about behavioral and dispositional issues than relatives and guardians of people with mental illness, a condition that often strikes for the first time in early adulthood or later and is more changeable. n67 The final Supreme Court decision addressing the equal protection implications of laws that classify based on mental disability is Board of Trustees of the University of Alabama v. Garrett. n68 There, several states argued, inter alia, that the provisions in the Americans with Disabilities Act (ADA) that require state employers to make "reasonable accommodations" for employees with mental disability are an unconstitutional exercise of Congress's authority, under Section V of the Fourteenth Amendment, to enforce the equal protection guarantee. n69 In agreeing with that proposition, the Court once again concluded that the appropriate standard of review in disability cases was the rational basis test, and this time it relied heavily on Cleburne in doing so. n70 On authority of that case, a five-member majority flatly stated that "states are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational." n71 This language sounds as if the Court has unequivocally settled that disability classifications are governed by traditional rational basis review. But it hasn't. First, the Court had no occasion to explicate what it meant by "rational," since it did not address any particular factual situation in Garrett; perhaps, as it did in Cleburne, application of rational basis review to people with mental disability will morph into "rational basis with bite." More importantly, two members of the majority wrote a concurring opinion that did not even mention Cleburne. Rather, after noting that "[t]here can be little doubtthat persons with mentalimpairments are confronted with prejudice which can stem from [*303] indifference or insecurity as well as from malicious ill will," n72 Justices Kennedy and O'Connor emphasized the absence of proof that any state had engaged in "a pattern or practice" that was "designed" to discriminate against people with disability. n73 When the views of these two justices are combined with the views of the four-member dissent, which expressed a more expansive view of Cleburne than the majority, n74 the equal protection status of mental

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disability remains in some doubt, at least where the state intentionally discriminates based on that classification. Under such circumstances, there is even precedent for an explicit move to heightened scrutiny. Referring to the Court's gender cases, Professor Weber points out that "[h]istory suggests that an erratic pattern of decisions, combined with protests by the Court that it is applying a rational-basis test, may lead to an eventual use of intermediate scrutiny." n75 At least as significant, the Court's caselaw indicates that when the state's differential treatment affects life or liberty, as it obviously does in the death penalty context, heightened scrutiny is more likely. n76 In short, a strong case can be made that states that continue to execute people with mental illness now that Atkins has been decided need to demonstrate not just a plausible reason, but a good reason, for doing so. III. WHY EXECUTION OF PEOPLE WITH MENTAL ILLNESS IS UNCONSTITUTIONAL Combining the conclusions of the previous two sections, execution of people with mental illness should not be permitted unless there is good reason to believe that people with mental illness are more culpable or deterrable than people with mental retardation or juveniles. That demonstration might be possible with respect to many forms of "mental illness." But it cannot be made when mental illness is equated with psychosis at the time of the crime. The classic psychotic diagnosis is schizophrenia. As defined in the American Psychiatric Association's Diagnostic and Statistical Manual (DSM), n77 people who suffer from schizophrenia experience "a range of cognitive and emotional dysfunc- tions that include perception, inferential thinking, language and communication, behavioral monitoring, affect, fluency and productivity of thought and speech, [*304] hedonic capacity, volition and drive, and attention." n78 The specific symptoms include delusions, hallucinations, disorganized speech, and grossly disorganized behavior. n79 Put even more functionally, people with schizophrenia have difficulty focusing on essential information, are easily distracted by irrelevant stimuli, often experience "thought blocking" (involving a complete halt to thinking), attribute elaborate meaning to what they see and hear, engage in combinative thinking (involving the reduction of impressions into unrealistic beliefs), and have difficulty forming abstract concepts correctly. n80

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Recall that Atkins considered people with mental retardation ineligible for the death penalty because of their "diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." n81 The Thompson plurality reached the same conclusion with respect to juveniles because juveniles are less able than adults "to evaluate the consequences of their actions" and because "[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent." n82 The brief description of schizophrenic symptoms above makes clear that people who suffer from psychosis also have great difficulty in communicating with and understanding others, engaging in logical cost-benefit analysis, and evaluating the consequences of and controlling their behavior. As noted in my earlier article, "[i]f anything, the delusions, command hallucinations, and disoriented thought process of those who are mentally ill represent greater dysfunction than that experienced by most 'mildly' retarded individuals (the only retarded people likely to commit crime) and by virtually any non-mentally ill teenager." n83 Of course, psychotic symptoms can have mitigating impact during the criminal process. The various insanity tests, n84 the diminished capacity and diminished responsibility defenses, n85 and capital sentencing law itself n86 recognize that these symptoms may significantly affect the ability to understand the nature of one's actions, to differentiate between right and wrong, to formulate intent, and to control [*305] behavior. Thus, one might assume, a ban on execution of people with significant mental illness at the time of the offense is likely to have no practical impact. That assumption would be wrong. Just as people with retardation and juveniles have ended up on death row despite mitigating characteristics, many people who experienced psychotic symptoms at the time of their crime are sentenced to death. The insanity defense is rarely successful, even (or especially) in murder cases. n87 In most jurisdictions, other defenses that in theory could give mitigating impact to mental illness are either not recognized or are very narrowly defined. n88 And while extreme mental or emotional distress and other abnormal mental conditions are usually explicitly

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recognized as mitigating factors in capital sentencing statutes, n89 research suggests that presentation of such evidence often acts as an aggravating factor. n90 Apparently, sentencing juries and judges focus more on the perceived dangerousness of such individuals than on their diminished culpability and deterrability. n91 Whatever the reason, the available evidence suggests that a sizeable number of people with psychotic symptomatology are on death row. n92 Reported cases also indicate that, as was the case with offenders suffering from mental retardation before Atkins, many courts are unwilling to reverse death sentences simply because of credible evidence of significant mental illness at the time of the crime. n93 [*306] These facts have diametrically opposed implications for the two constitutional doctrines most relevant to the proper scope of the death penalty. They undercut an Eighth Amendment claim because, if they show any consensus, it is that significant mental illness at the time of the crime should not be a bar to execution. But they bolster the equal protection argument, because they show an "irrational prejudice" against people with mental illness that is not justified by any legitimate state goal. To state the strongest possible equal protection case against execution of people with mental illness, the following discussion will be framed in terms of traditional rationality review. Under that standard, it will be recalled, a state practice "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." n94 There are three conceivable bases for supporting continued execution of people with mental illness after Atkins, to wit: compared to mental retardation and youth, mental illness is (1) harder to diagnose, (2) less characteriological and more avoidable, and (3) more likely to lead to violent behavior. Good arguments can be made that all three of these distinctions are specious (and are therefore unreasonable), and they certainly do not withstand the more heightened scrutiny represented by Cleburne. A. Definition and Proof Taking a cue from Heller, n95 advocates for continued execution of people with mental illness in the wake of Atkins and Thompson might contend that mental illness is harder to

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define than "youth" or mental retardation. Mental retardation is measured primarily through objective tests that produce quantified results. n96 Age is even more easily verifiable. Diagnosing mental illness, on the other hand, is a more seat- of-the pants assessment known to be difficult to carry out reliably. n97 It could be [*307] argued, consequently, that the state would not be able to implement a ban on execution of people with mental illness in a sensible manner. Furthermore, the amorphous nature of mental illness makes malingering easier. In combination, these difficulties could be said to undermine the state's ability to achieve both the retributive and the deterrence goals of the death penalty. Mistakes would be made as to who is culpable or deterrable enough to warrant execution, and would-be offenders might calculate that, if caught, they can successfully feign illness and at least escape the death penalty. There is no doubt that mental illness is an exceedingly vague term. Even when one confines mental illness to psychosis, as I have done in this article, the diagnostic nomenclature is slippery. For instance, with respect to delusions, a principal symptom of schizophrenia, the DSM admits that "[t]he distinction between a delusion and a strongly held idea is sometimes difficult to make and depends on the degree of conviction with which the belief is held despite clear contradictory evidence." n98 Similarly, assessment of the "bizarreness" of delusions, also important to a diagnosis of schizophrenia, "may be difficult to judge, especially across different cultures." n99 All of this seriously undermines the equal protection argument against execution of people with mental illness if the comparison group is juveniles. Age is hard to get wrong. Thus, there is an obvious distinction between youth and mental illness in terms of ease of "diagnosis." But none of the foregoing supplies a good reason for differentiating between people with significant mental illness and those with mental retardation. Heller, which assumed that mental illness is more difficult to discern than mental retardation, may appear to hold otherwise, but it does not. The type of mental disorder that can provide the basis for civil commitment, which was the legal context at issue in that case, is much broader than the psychoses at issue here. n100 When focused solely on gross impairment related to psychosis, studies show a much higher rate of reliability (i.e., agreement between diagnosticians) despite the softness of the

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criteria, n101 and other research indicates that successful malingering is very [*308] difficult. n102 More importantly, contrary to common belief, diagnosis of mental retardation does not consist simply of adding up scores on an intelligence test to see if the person has an IQ above or below seventy (the widely accepted presumptive cut-off score n103). Putting aside questions about the reliability of such tests, n104 the DSM notes that "it is possible to diagnose Mental Retardation in individuals with IQs of seventy and seventy-five who exhibit significant deficits in adaptive behavior. Conversely, Mental Retardation would not be diagnosed in an individual with an IQ lower than seventy if there are no significant deficits or impairments in adaptive functioning." n105 As suggested by some of the other articles in this symposium, n106 "adaptive functioning" is at least as amorphous a term as "delusion," "hallucination," or "disorganized speech." Let us assume, however, that the nuances just discussed do not dissuade courts from adopting the holding in Heller that there is a rational basis for believing psychosis is harder to diagnose than mental retardation. The proper response to that concern, as Heller itself acknowledged, is to require more convincing proof that the person suffers from significant mental illness. n107 Just as the diagnostic challenge does not prevent the state from committing people with mental illness if they are dangerous to self or others, it should not permit the state to execute them when they are no more culpable or deterrable than children or people with retardation. A related objection to equating the two groups, also suggested by Heller, n108 is based on the notion that mental illness is a highly variable condition, whereas mental retardation is a permanent status, with relatively constant symptomatology throughout life. As a consequence, the contention might be that a diagnosis of [*309] retardation provides probative evidence on mental state at the time of the offense regardless of when it is made (i.e., well before the offense, at the time of trial, or at any time in between), whereas a diagnosis of psychosis is only relevant to the sentencing question if it pertains to the time of the offense. This contention attributes an impermanency to psychosis that is all too rare. As the DSM states, "[s]chizophrenia tends to be chronic," n109 and "[c]omplete remission (i.e., a return to full premorbid functioning) is probably not common." n110 In any event, the proper response to any concerns about variability is, once again, to place a heavier burden on defendants alleging mental illness to show that they suffered

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from psychotic symptoms during the relevant time period, rather than simply assume they are more deserving of the death penalty than people with mental retardation. n111 Given the alternative of raising the standard of proof, the difficulty-of- diagnosis rationale for continuing to allow execution of people with mental illness after Atkins clearly does not satisfy heightened scrutiny, which requires that the government's solution be narrowly tailored to the problem. n112 Indeed, the rationale does not even satisfy rational basis review's requirement that the government's aims and the way it chooses to implement them be reasonably related. The state is not acting reasonably if it justifies execution of people with mitigating mental illness simply on the ground that it has difficulty identifying who they are. B. Accountability for Status The second possible objection to equating mental illness, mental retardation, and youth for purposes of administering the death penalty more directly compares the impact of those conditions on culpability and deterrability. Building on the relative variability notion previously discussed, the contention would be something like this: Even if we have sufficient proof of psychosis at the time of the offense, that condition is not as mitigating as mental retardation or youth because the mentally ill person is more "responsible" for the situation in two ways. First, adults with mental illness, while impaired, are not developmentally impaired; thus, they have greater capacity and more opportunity than juveniles or people with retardation to develop an understanding of the rules of society and human interaction. Second, mental illness, in particular psychosis, is more easily treatable than either retardation or youth, making the person with mental illness at the time of the offense more at "fault" for the impairment and its consequences. n113 [*310] These maturity and treatment differences do exist. But they do not provide good grounds for making distinctions in punishment. With respect to the first difference, it is true that, on average, mentally ill adults are more advanced developmentally than either people with mental retardation or juveniles, because the onset of psychosis usually does not occur until the late teens or early twenties. n114 But, as noted above, once psychosis takes hold, it seldom disappears. More importantly, the cognitive and volitional impairment

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associated with active schizophrenia is likely to be much more severe than that which occurs with mental retardation or immaturity. Consider again the symptoms of psychosis, using the language of the DSM. Delusions involve "misinterpretations of perceptions and experiences." n115 They are usually "clearly implausible and not understandable and do not derive from ordinary life experiences." n116 Hallucinations are usually auditory and often consist of "pejorative or threatening voices." n117 The speech of people with schizophrenia is "tangential" and full of "loose associations," indicating a high degree of disorgan-ized thought. n118 Their behavior ranges from "childlike silliness to unpredictable agitation," is rarely "goal-directed," and leads "to difficulties in performing activi-ties of daily living." n119 As these descriptions indicate, once psychotic symptoms set in, any "real-world" knowledge and learning gained from earlier experiences has little influence. n120 Nor should differences in treatability affect retributive or utilitarian analysis. Anti-psychotic medication has vastly improved the treatment of the psychoses, and in many people it can eliminate or substantially reduce the most conspicuous psychotic symptoms in a short period of time. n121 In contrast, habilitation of people with retardation and counseling of wayward juveniles is more time-consuming and less dramatically successful. n122 But to conclude from these facts that people who are psychotic at the time of an offense could have more easily avoided their impaired condition and thus are more justly held accountable is too great a leap; in the usual case, a failure to obtain treatment for psychosis cannot seriously be characterized either as "blameworthy" or as behavior that imposition of the death penalty would [*311] somehow change. First, many people with psychosis are not capable of recognizing the benefits of medication or the risks of not taking it. n123 Second, those who do have such capability may nonetheless resist medication because they know it can have serious side effects, requires long-term maintenance, and is unevenly successful. n124 Finally, even those who might want medication can have good reasons for not being on it. As one study indicated, most people with mental disorders do not seek treatment because they "do not realize that effective treatments exist,fear discrimination because of the stigma attached to mental illness[, or are unable to] afford treatment because they lack insurance that would cover it." n125 In any event, if there are some cases in which people with

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mental illness could be said to be "on notice" that a failure to seek or maintain treatment might result in a serious crime, there are certainly similar cases involving people with mental retardation and youth. Many people with mental retardation know they have a disorder but deny it rather than seek help. n126 Juveniles who commit violent crimes have generally been given several opportunities to obtain treatment through previous involvement in the juvenile justice system. n127 There can be no rational distinction between these groups, or at least no distinction that passes a rational- basis-with- bite test, on the ground that people with mental illness are somehow more accountable for their condition. C. Dangerousness In both Atkins and Thompson, the Court's "independent evaluation" of whether imposition of the death penalty violated the Eighth Amendment focused on the two purposes of punishment already mentioned, retribution and deterrence. n128 As Justice Scalia pointed out in Atkins, there is at least one other purpose of punishment that the imposition of the death penalty might seek to accomplish: (permanent) incapacitation. n129 And, as indicated earlier, research suggests that it is the perceived [*312] dangerousness of the offender, not his or her blameworthiness and not concern about deterrence goals, that is the most influential factor for many involved in making death sentence determinations. n130 Thus, a final argument for continuing to execute people with mental illness in the wake of Atkins and Thompson is that they are more dangerous than people with retardation or juveniles. A first response to this argument is that Justice Scalia's assertion about the relevance of dangerousness in death penalty cases is incorrect, at least when mental disability is at issue. Mental retardation, mental illness, and youth are all universally recognized mitigating factors. n131 Therefore, presumably, they cannot be aggravating factors. n132 Yet that is precisely what they become when one tries to justify execution on the ground that these conditions make people more dangerous. Even if incapacitation is a valid consideration in determining the scope of the death penalty for people with mental disability, the claim that people with mental illness are super dangerous is easily debunked. Admittedly, the base rate for violence among the most severely mentally ill is more elevated than the violence base rate for the general population. n133 But the more relevant comparison in the death

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penalty context is between mentally ill and non-disordered offenders, and research indicates that the former group is no more, and probably less, dangerous than the latter. n134 Most relevant to the equal protection analysis, people with mental illness are no more likely to recidivate than offenders who suffer from mental retardation n135 and are clearly less likely to reoffend than juvenile offenders. n136 [*313] CONCLUSION A credible Eighth Amendment argument against the execution of people who are mentally ill cannot be made, because only one legislature in a death penalty state has barred such executions. But that fact simply strengthens the equal protection argument. Because murderers with proven significant mental illness at the time of the offense are no more culpable or deterrable, nor any more dangerous, than juvenile murderers or murderers who suffer from mental retardation, the only possible basis for the states' continued willingness to execute members of the first group is the type of "irrational prejudice" against which Cleburne inveighed. Up to this point in this essay, the evidence of such prejudice has been primarily negative in nature, in the sense that it consists of rebutting possible "rational" explanations for continued execution of people with mental illness. But there is plenty of positive evidence of irrational prejudice as well. Research about attitudes toward individuals with mental illness strongly suggests that most of us view such people to be abnormally dangerous. n137 Although, as indicated above, this perception is clearly inaccurate, if held by legislators and jurors bent on ensuring public safety through executions, n138 it explains both why there is no legislative momentum toward barring their execution and why mental illness, supposedly a mitigating factor, is so highly correlated with death sentences. These findings also suggest the nature of the irrational prejudice at work, which research from the mammoth Capital Jury Sentencing Project clarifies. n139 In one aspect of that study, 187 jurors who served on fifty- three capital cases tried in South Carolina between 1988 and 1997 were queried about their emotional reactions to capital offenders. n140 Regression analysis of their responses revealed that, of the

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eight emotions studied (including fear, sympathy, anger, and disgust), only "fear" of the offender correlated significantly with the final vote on sentence. n141 The researchers also found that the most feared type of offender was one perceived to be a [*314] "madman" or "vicious like a mad animal." n142 The type of offender most likely to fit the "madman" category, of course, is one who exhibits symptoms of mental illness at the time of the offense. Even an offender with mental retardation is likely to be less feared and thus less likely to be irrationally sentenced to death than the person with significant mental illness. Indeed, the researchers found that while jurors were "likely to have felt sympathy or pity" for people with both types of disability, they were more likely to be simultaneously "disgusted or repulsed" only by the latter type of defendant. n143 Now that people with mental retardation cannot be executed, execution of people who have significant mental illness at the time of the offense is difficult to defend on rational grounds, whether the forum is judicial, legislative, or executive. n144 The primary reason such executions continue is a disproportionate fear of people with mental illness. Prohibiting imposition of the death penalty on these people would dramatically highlight the irrationality of that fear.

FOOTNOTES:

n1 See Christopher Slobogin, Mental Illness and the Death Penalty, 1 Cal. Crim. L. Rev., art. 3, 5-13 (2000), available at http://www.boalt.org/CCLR/v1/v1toc.htm; 24 Men. & Phys. Dis. L. Rep. 667, 667-69 (2000) (subsequent citations will be to the latter version). n2 Id. at 667. n3 See Thompson v. Oklahoma, 487 U.S. 815, 829 (1988) (Stevens, J., plurality opinion) (reporting that, as of 1988, eighteen states had adopted such a prohibition).

n4 Together with Charles E. Haden and Robert E. Lee, James Ellis, Professor at the University of New Mexico School of Law, wrote the briefs for Daryl Renard Atkins. Professor Ellis's heroic efforts on behalf of people with

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mental retardation, in and out of the death penalty context, are well-known. He was involved in all three prominent equal protection cases involving mental disability. See infra notes 43-74.

n5 536 U.S. 304 (2002). n6 See infra text accompanying notes 38-39. n7 See infra text accompanying notes 47-50. n8 See infra text accompanying notes 43-76. n9 See infra text accompanying notes 77-136. n10 487 U.S. 815 (1988) (plurality opinion). n11 356 U.S. 86 (1958). n12 Id. at 100-01. n13 See Harmelin v. Michigan, 501 U.S. 957, 1000 (1991) (evolving standards should be informed by "'objective factors to the maximum possible extent'"); Penry v. Lynaugh, 492 U.S. 302, 331 (1989) ("[the] clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures"). n14 536 U.S. at 313-15. n15 Id. at 316 ("[I]t appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry."); id. at n.21 (listing national and international organizations). n16 See, e.g., Coker v. Georgia, 433 U.S. 584 (1977) (finding only one state permitted the death penalty for rape); Solem v. Helm, 463 U.S. 277 (1983) (stating only one state permitted a life sentence without parole for the types of crimes at issue); Ford v. Wainwright, 477 U.S. 399 (1986) (noting no state authorized execution of those who are incompetent); Enmund v. Florida, 458 U.S. 782 (1982) (finding only eight out of thirty-six death penalty states permitted the death penalty for a robbery in which an accomplice took a life). n17 536 U.S. at 343 (emphasis added). Scalia's use of

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the word "fudged" referred to the fact that one of the eighteen state laws relied on by the majority, New York's, continued to permit execution of persons with mental retardation who committed murder "while the defendant was confined or under custody in a state correctional facility or local correctional institution," N.Y. Crim. Proc. Law § 400.27.12(d) (McKinney 2001-2002 Interim Pocket Part), and the additional fact that eleven states prohibited execution of those with mental retardation only if the murder occurred after the effective date of the statute. Id. at 323-24. Scalia then noted that the Court had upheld the death penalty for major participation in a felony with reckless indifference to life when eleven of thirty-seven death penalty states (thirty percent) prohibited such punishment, Tison v. Arizona, 481 U.S. 137 (1987), and for people who commit murder at age sixteen when fifteen of thirty-six (forty-two percent) death penalty states prohibited capital punishment for such offenders. Stanford v. Kentucky, 492 U.S. 361 (1989). n18 536 U.S. at 346 (Scalia, J., dissenting) (reporting, inter alia, a source that indicated that ten percent of those on death row suffer from mental retardation). Other reports estimate up to thirty percent of those on death row have mental retardation. See, e.g., Clive A. Stafford- Smith & Remy Voisin Starns, Folly by Fiat: Pretending that Death Row Inmates Can Represent Themselves in Post- Conviction Proceedings, 45 Loy. L. Rev. 55, 70 n.92 (1999). n19 Penry v. Lynaugh, 492 U.S. 302 (1989). n20 536 U.S. at 347 (Scalia, J., dissenting). n21 Id. n22 Id. at 321-36 (Rehnquist, C.J., dissenting). n23 Id. at 312 (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977)). n24 433 U.S. at 597. n25 In Coker itself, for instance, the Court made the quoted statement after noting that the national legislative consensus was clearly against imposing the death penalty for rape. Id. It then went on to state, "the

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legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman." Id. n26 As the Court stated in Stanford v. Kentucky, To say, as the dissent says, that "it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty,"-and to mean that as the dissent means it, i.e., that it is for us to judge, not on the basis of what we perceive the Eighth Amendment originally prohibited, or on the basis of what we perceive the society through its democratic processes now overwhelmingly disapproves, but on the basis of what we think "proportionate" and "measurably contributory to acceptable goals of punishment"-to say and mean that, is to replace judges of the law with a committee of philosopher-kings.492 U.S. 361, 379 (1989). n27 536 U.S. at 321. n28 Id. at 349 (Scalia, J., dissenting). n29 Id. at 318. n30 The Court's emphasis on retribution and general deterrence comes from Gregg v. Georgia, 428 U.S. 153 (1976), one of the Supreme Court decisions that reinvigorated the death penalty after Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), had cast its constitutionality in doubt. As Stevens noted in Atkins, Gregg "identified 'retribution and deterrence of capital crimes by prospective offenders' as the social purposes served by the death penalty." 536 U.S. at 313. These two purposes have been the centerpiece of the Court's Eighth Amendment analysis in death penalty cases. See, e.g., Enmund v. Florida, 458 U.S. 782, 792 (1982) ("Unless the death penaltycontri-butes to one or both of these goals it 'is nothing more than the purposeless and needless imposition of pain and suffering,' and hence an unconstitutional punishment."). n31 536 U.S. at 319. n32 Id. The Court also averred that people with mental retardation are more likely to confess falsely and less

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able to assist counsel at trial, so that "in the aggregate [they] face a special risk of wrongful execution." Id. at 320. I don't focus on this issue in this essay because it amounts to an attack not on executions per se but on all criminal prosecutions of people with retardation. Nonetheless, in line with the Equal Protection analysis undertaken in this essay, it is worth noting relevant comparisons with people suffering from mental illness. While a number of people with retardation have apparently given false confessions, see Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429, 452-90 (1998) (detailing cases), people with mental illness have also confessed to crimes they apparently did not commit. Id. at 453, 465. And clearly mental illness is a primary reason for findings of incompetency to proceed. See Gary Melton et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals & Lawyers 136-37 (2d ed. 1997) (summarizing data showing that "psychoticism" is highly correlated with incompetency). n33 487 U.S. 815 (1988). n34 Id. at 826. The plurality also looked at other indicia of consensus. Id. at 830-33 (canvassing positions of national organizations and other countries and the behavior of juries). n35 Id. at 835. n36 Id. n37 Id. at 837.

n38 Justice O'Connor was the fifth vote for the result in Thompson reversing the death sentence, but her position stemmed from her belief that the "objective" evidence left unclear whether Oklahoma's legislature intended to impose a death sentence in such cases. Id. at 858. As to the plurality's position, she stated, "I am reluctant to adopt conclusion as a matter of constitutional law without better evidence than we now possess." Id. at 849.

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n39 See Victor L. Streib, Adolescence, Mental Retardation, and the Death Penalty: The Siren Call of Atkins v. Virginia, 33 N.M. L. Rev. 183 (2003). See also In re Stanford, 537 U.S. 968 (2002). There, four Justices (Stevens, Souter, Ginsburg, and Breyer) dissented to a denial of a writ of habeas corpus brought by a capital offender who committed his offense at age sixteen, on the ground that the Eighth Amendment prohibits execution of juveniles under eighteen. As one explanation for doing so, Justice Stevens stated, "The reasons supporting [Atkins], with one exception [i.e., the number of states that prohibit the practice] apply with equal or greater force to the execution of juvenile offenders." Id. n40 Cf. Penry, 492 U.S. at 334 (concluding that "even when added to the fourteen States that have rejected capital punishment completely, [the two state statutes that banned execution of people with mental retardation at the time of that decision] do not provide sufficient evidence at present of a national consensus"). n41 Conn. Gen. Stat. § 53a-46a(h) (2002) (prohibiting imposition of the death penalty when the jury or judge finds, by special verdict, that "the defendant's mental capacity was significantly impaired or the defendant's ability to conform the defendant's conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution"). Note that even before Ford v. Wainwright, 477 U.S. 399 (1986), constitutionalized the requirement, every state banned the execution of people whose mental illness rendered them unable to understand the nature of the death penalty. Id. at 408. But that rule focuses entirely on the individual's mental state at the time of execution, not at the time of the offense, which is the appropriate focus of the retributive and deterrence queries addressed in Atkins and this essay. n42 Some people who have read this essay are uncomfortable with this tack. One or two have objected that litigants should not be able to accomplish through the Equal Protection Clause what they would be denied under the Eighth Amendment (or some other constitutional provision). But that happens all the time, when members of

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burdened classes are accorded privileges not because they are fundamentally entitled to them but because others have them. See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (recognizing an equal protection claim against police investigative practices that do not violate the Fourth Amendment); Plyer v. Doe, 457 U.S. 202 (1982) (finding that even though there is no constitutional right to education, an undocumented immigrant child is entitled to education along with resident children); Glona v. American Guarantee & Liability, Ins. Co., 391 U.S. 73 (1968) (holding that a state cannot, consistent with the Equal Protection Clause, prevent mothers from suing for wrongful death of illegitimate children when it allows such suits for legitimate children, even though there is presumably no general "right" to wrongful death actions); Skinner v. Oklahoma, 316 U.S. 535, 539-40 (1942) (passing on the issue of whether criminal offenders may be sterilized but finding that laws that permit sterilization of three-time larcenists when three-time embezzlers are not subject to sterilization violated equal protection). Others have objected that an equal protection argument cannot be based on an inequality created by the Court's efforts to implement a constitutional right rather than by legislative action or inaction. But there is precedent for that result as well. In Eisenstadt v. Baird, 405 U.S. 438, 453-55 (1972), the Supreme Court held that Connecticut violated the Equal Protection Clause by banning the sale of contraceptives to single individuals when it permitted their sale to married couples, even though the only reason the state permitted sale of contraceptives to the latter was because it had been required to do so by the Supreme Court in Griswold v. Connecticut, 381 U.S. 475 (1965). n43 473 U.S. 432 (1985). In an earlier case, Schweiker v. Wilson, 450 U.S. 221 (1981), the Court confronted an argument that mental illness is a suspect classification for equal protection purposes, but stated that "[w]e have no occasion to reach this issue because we conclude that this statute does not classify directly on the basis of mental health." Id. at 231. n44 473 U.S. at 436-37 n.3. n45 Id. at 437.

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n46 Id. at 442-47. More specifically, the Court gave four reasons for holding that mental retardation is not even a quasi-suspect classification. First, people with mental retardation-in contrast, for instance, to people of minority ethnic background or women-have a "reduced ability to cope with and function in the everyday world," so discrimination is more likely to be justified. Id. at 442-43. Second, many state and federal laws redress inequities aimed at people with retardation "in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary." Id. at 443. Third, this legislation also shows that people with mental retardation are not politically powerless. Id. at 445. Finally, a contrary holding would open the door to arguments by a host of other groups, among them the mentally ill, that they too are entitled to special Fourteenth Amendment protection. Id. at 445-46. n47 FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Beach Communications summarized years of precedent on this issue. See, e.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 1 (1980) ("Wherethere are plausible reasons for Congress's action, our inquiry is at an end."); Vance v. Bradley, 440 U.S. 93, 97 (1979) ("The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."). n48 Beach Communications, 508 U.S. at 315. n49 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). n50 New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam). n51 473 U.S. at 450. n52 Id. at 448. n53 Id. at 437.

n54 James W. Ellis & Ruth A. Luckasson, Mentally

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Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 426 (1985) ("The best modern evidence suggests that the incidence of criminal behavior among people with mental retardation does not greatly exceed the incidence of criminal behavior among the population as a whole."); Craig Smith et al., Prison Adjustment of Youthful Inmates with Mental Retardation, 28 Mental Retardation 177, 179 (June 1990) (finding that a group of offenders with mental retardation had twice as many disciplinary reports involving assault than a matched group without retardation). n55 See, e.g., 3A Kentucky Practice: Methods of Practice § 25.5 (3d ed. 1990) ("land use and zoning regulations may be employed topreventdanger and congestion in the circulation of people."). n56 See, e.g., Gayle Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. L.J. 779, 793-99 (1987) (noting that the Cleburne Court's placement of the burden on the city to explain the law and its detailed analysis of the city's reasons was inconsistent with traditional rational basis review); William B. Lockhart et al., Constitutional Law: Cases- Comments-Questions 1161-62 (8th ed. 1996). See also 473 U.S. at 458 (Marshall, J., concurring) ("however labeled, the rational basis test invoked today is most assuredly not the rational-basis test [applied in earlier cases]"). n57 509 U.S. 312 (1993). n58 Id. at 317-18. n59 Id. at 317. n60 Id. at 318-19. n61 Id. at 319. n62 Id. n63 Id. at 321. See infra text accompanying notes 95- 106 (exploring further the accuracy of this assumption). n64 Id. at 322 ("If diagnosis is more difficult in cases of mental illness than in instances of mental retardation, a higher burden of proof for the former tends to equalize the risks of an erroneous determination that the subject

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of a commitment proceeding has the condition in question.").

n65 Addington v. Texas, 441 U.S. 418 (1978). The Court also asserted that commitment visits more serious consequences on people with mental illness, in the guise of powerful anti- psychotic medication. Heller, 509 U.S. at 324-25. The dissent argued to the contrary, noting that many people with retardation receive medication and that they often spend their whole life in an institution, while people with mental illness are often released within a short period of time. Id. at 342-43 (Souter, J., dissenting). While the dissent's contentions are worth considering, it remains a fact that the "treatment" of people with mental illness is more likely to involve use of invasive medications. Id. at 324-35. Further, under constitutionally correct procedures, prolonged detention must be periodically reviewed, see Fasulo v. Arafeh, 378 A.2d 553 (Conn. 1977); Matter of Harhut, 385 N.W.2d 305 (Minn. 1986), so that the consequence of any given commitment are not exceedingly different for the two groups. n66 Heller, 509 U.S. at 329. n67 Of course, as the dissent in Heller noted, if the primary goal is to assure that relatives and guardians give testimony, the state could simply subpoena them. Id. at 347 (Souter, J., dissenting). Testimony may not be the only goal, however. Relatives who have spent years caring for people with retardation may have very strong preferences for a particular disposition (e.g., community versus institution) that is most likely to be implemented through giving them party status. The question in most cases involving people with retardation is not whether commitment will take place but where it will occur. See Leonard E. Heller, Sec'y, Ky. Cabinet for Human Res., Petitioner v. Samuel Doe, by His Mother and Next Friend, Mary Doe, et al., Respondents, No. 92-351, October Term, 1992, Feb. 23, 1993, Reply Brief for Petitioner. The dissent's assumption that family members who are given party status are more likely to act as a "second prosecutor," Heller, 509 U.S. at 348 (Souter, J.,

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dissenting), is generally not true in this context. n68 531 U.S. 356 (2001). n69 Id. at 360. The states' specific contention in Garrett, with which the Court agreed, was that suits for money damages under the ADA are barred by the Eleventh Amendment. Id. The Eleventh Amendment prevents suits against nonconsenting states unless Congress has abrogated state immunity "pursuant to a valid grant of constitutional authority," see Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000), and the Garrett Court found that there was no such authority for suits alleging discrimination based on disability under its cases (including Cleburne), 531 U.S. at 367. n70 Garrett, 531 U.S. at 366-67. n71 Id. at 367. n72 Id. at 375 (Kennedy, J., concurring). n73 Id. n74 Id. at 381-82 (Breyer, J., dissenting) (arguing that the ADA's prohibition of discrimination based on mental disability implements the Court's holding in Cleburne). n75 Mark C. Weber, Disability Harassment in the Public Schools, 43 Wm. & Mary L. Rev. 1079, 1128 (2002). n76 See, e.g., Foucha v. Louisiana, 504 U.S. 71 (1992). A four-member plurality found that the Equal Protection Clause was violated by continued confinement, on dangerousness grounds, of an insanity acquittee who was no longer mentally ill when other persons who committed criminal acts could not be confined on those grounds. Id. at 84-86. As Justice White stated for the plurality, "[f]reedom from physical restraint being a fundamental right, the State must have a particularly convincing reasonfor [confinement of] insanity acquittees who are no longer mentally ill." Id. Justice O'Connor wrote a separate opinion in Foucha stating, "Although I think it unnecessary to reach equal protection issues on the facts before us, the permissibility of holding an acquittee who is not mentally ill longer than a person convicted of the same crimes could be imprisoned is open to serious

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question." Id. at 88 (O'Connor, J., concurring in part and concurring in judgment). n77 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) [hereinafter DSM]. n78 Id. at 274. n79 Id. at 285. n80 Robert Schopp, Automatism, Insanity, and the Psychology of Criminal Responsibility: A Philosophical Inquiry 185-87 (1991) (describing these and other symptoms). n81 See supra text accompanying notes 29-30. n82 See supra text accompanying notes 36-37. n83 Slobogin, supra note 1, at 669. n84 Generally, these tests recognize an excuse for people who, as a result of mental disease, have substantial difficulty differentiating right from wrong or controlling their behavior. See Melton et al., supra note 32, at 190-93 (describing the tests). n85 The phrase "diminished capacity defense" refers to the claim that the defendant did not have the requisite mens rea due to the effects of mental disease or defect. A successful diminished responsibility defense leads to the reduction of charge, usually in murder cases, based on the volition-impairing effects of mental disorder. Both are distinct from the insanity defense. See generally id. at 204-08 (describing and distinguishing these defenses). n86 Every death penalty state stipulates that mental illness at the time of the offense is to be considered as a possible mitigating circumstance. Ellen Fels Berkman, Mental Illness as an Aggravating Circumstance in Capital Sentencing, 89 Colum. L. Rev. 291, 296-98 (1989). The most common method of framing that concept is through recognition of "extreme mental or emotional stress" as a mitigating factor. Id. n87 Melton et al., supra note 32, at 188 (surveying studies that roughly suggest a twenty-five percent success rate with insanity claims that go to trial); Henry J.

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Steadman et al., Factors Associated with a Successful Insanity Plea, 140 Am. J. Psychiatry 401, 402-03 (1983) (insanity defense no more successful in murder cases than in cases involving other crimes). n88 Ralph Reisner, Christopher Slobogin & Arti Rai, Law and the Mental Health System: Civil and Criminal Aspects 563-64 (3d ed. 1999) (noting that only half the states recognize the diminished capacity defense and no state has adopted a diminished responsibility defense based explicitly on mental abnormality); Wayne LaFave, Criminal Law 711 (3d ed. 2000) (noting that in many states a provocation defense based on "special mental qualities" is not recognized). Even if recognized, a diminished capacity defense is seldom plausible because most people with mental illness who commit a crime intend to commit it. See State v. Herrera, 895 P.2d 359, 374 (Utah 1995) ("As to crimes requiring intent, an insane person will virtually always have the mental state required by the laweven though the defendant suffers from severe mental derangement, such as an extreme and bizarre psychotic delusion."). n89 See supra note 86. n90 The evidence for this point is assembled at Slobogin, supra note 1, at 669-70. In general, the research shows that one of the best predictors of a death sentence is assertion of an insanity defense at trial, and that presentation of evidence supporting a claim of extreme mental or emotional stress is much more likely to correlate with a death sentence than a life sentence. Id. n91 Id. at 670. As argued in my earlier article, this fact, in itself, could be grounds for a separate, due process challenge to execution of people with mental illness. Because every state makes mental disability a mitigating factor, the apparent tendency of capital sentencing bodies to use mental disability as an aggravator evidences a failure to follow state statutory provisions, which is a due process violation. Id. Another reason people with mental illness may be sentenced to death is because they do not "look" ill to jurors. See Michael L. Perlin, "Life is in Mirrors, Death Disappears": Giving Life to Atkins, 33 N.M. L. Rev. 315 (2003).

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n92 Mark D. Cunningham & Mark P. Vigen, Death Row Inmate Characteristics, Adjustment, and Confinement: A Critical Review of the Literature, 20 Behav. Sci. & L. 191, 193, 200 (2002) (noting that incidence of schizophrenia on death row is at least five percent and perhaps higher); Dorothy O. Lewis et al., Psychiatric, Neurological, and Psychoeducational Characteristics of 15 Death Row Inmates in the United States, 143 Am. J. Psychiatry 838, 840 (1986) (finding that forty percent of fifteen adult death row inmates were chronically psychotic, evidencing, e.g., loose, illogical thought processes, delusions, and hallucinations). n93 See, e.g., Illinois v. Haynes, 737 N.E.2d 169, 193- 96 (Ill. 2000) (Harrison, C.J., dissenting) (noting five of six experts found defendant to be delusional at time of trial and well before it)lton v. Angelone, 2002 U.S. Dist. LEXIS 5240, 20-24, 45-49, 62-63, 76 (W.D. Va. 2002) (upholding death sentence despite very strong evidence of schizophrenia at time of offense and at trial); Feguer v. United States, 302 F.2d 214, 228-36 (8th Cir. 1962) (same outcome); People v. Rittger, 355 P.2d 645 (Cal. 1960) (same outcome); People v. Crews, 522 N.E.2d 1167 (Ill. 1988) (upholding death sentence for defendant found guilty but mentally ill, with mental illness defined as "a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person's judgment"); Illinois v. Scott, 594 N.E.2d 217 (Ill. 1992) (same outcome); State v. Wilson, 413 S.E.2d 19 (S.C. 1992) (same outcome); Colburn v. Texas, 966 S.W.2d 511, 512 (Tex. Crim. App. 1998) (rejecting argument that an "extensive history of paranoid schizophrenia" prevents the imposition of the death penalty); Hernandez v. Johnson, 248 F.3d 344 (5th Cir. 2001) (upholding death sentence despite admission from prosecution witness that schizophrenia was "primary" diagnosis and jury instructions that did not call attention to mental illness as a mitigating factor but rather merely told jury to consider all the evidence and determine whether defendant "deliberately" killed and was dangerous); State v. Berry, 686 N.E.2d 1097, 1103-04 (Ohio 1997) (upholding death sentence of offender who was

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diagnosed with schizophrenia and psychosis prior to the offense and "confessed" on condition the state would execute him); Corcoran v. Indiana, 2002 Ind. LEXIS 688 (2002) (upholding death sentence over a dissent that cited Atkins in concluding that "because Corcoran is obviously severely mentally ill, he should be sentenced to life without the possibility of parole, not death"). See generally Phyllis L. Crocker, Concepts of Culpability and Deathworthiness: Differentiating Between Guilt and Punishment in Death Penalty Cases, 66 Fordham L. Rev. 21, 27, 66-78, nn.218, 231 (1997) (stating that "courts frequently employ the guilt-phase insanity test as the standard by which to judge a defendant's punishment-phase mitigating evidence of mental illness" and citing and describing cases). n94 See supra text accompanying note 47 (emphasis added). n95 See supra text accompanying notes 63-64. n96 See DSM, supra note 77, at 39 (noting that mental retardation is measured in part through an assessment of "general intellectual functioning," which is defined by the intelligence quotient, which in turn is obtained by use of "one or more of the standardized, individually administered intelligence tests"). But see infra text accompanying notes 103-106. n97 Field studies of inter-rater reliability on specific diagnoses of serious mental illness indicate a relatively low rate of agreement. See, e.g., Paul Lieberman & Frances Baker, The Reliability of Psychiatric Diagnosis in the Emergency Room, 36 Hosp. & Comm. Psychiatry 291 (1985) (finding forty-one percent agreement on schizophrenia, fifty percent agreement on mood disorders; thirty-seven percent agreement on organic disorders). n98 Id. at 275. n99 Id. n100 The typical civil commitment statute defines mental disorder in language that often sounds like psychosis. See, e.g., N.M. Stat. Ann. § 43-1-3(N) (2002) (defining mental disorder as "the substantial disorder of the person's emotional processes, thought or cognition which

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grossly impairs judgment, behavior or capacity to recognize reality"). However, people with non-psychotic personality disorders and depression are routinely committed under these statutes. Mary L. Durham, Civil Commitment of the Mentally Ill: Research, Policy and Practice, in Mental Health and Law: Research, Policy & Services 17, 19 (Bruce Sales & Saleem Shah, eds., 1996). See also Matter of D.C., 679 A.2d 634 (N.J. 1996) (upholding constitutionality of amended New Jersey commitment statute clarifying that "mental illness" does not require that a person be psychotic). n101 The low ratios for inter-rater reliability cited earlier, see supra note 97, came from emergency room settings, which are quite different from the considered evaluation process that would occur in death penalty contexts. Research on the diagnosis of schizophrenia in more sedate environs has found agreement rates above eighty percent. See Reisner, Slobogin & Rai, supra note 88, at 418. See also Kenneth K. Fukunaga et al., Insanity Plea: Inter-Examiner Agreement and Concordance of Psychiatric Opinion and Court Verdict, 5 Law & Hum. Behav. 325 (1981) (finding ninety-two percent inter-rater agreement on gross impairment); Michael R. Phillips et al., Psychiatry and the Criminal Justice System: Testing the Myths, 145 Am. J. Psychiatry 605 (1988) (finding seventy-six percent agreement on psychosis).

n102 See Michael Perlin, The Jurisprudence of the Insanity Defense 238-41 (1994). Perlin states that "there is virtually no evidence that feigned insanity has ever been a remotely significant problem of criminal procedure," id. at 238, that advances in detection of malingering can discern faking in over ninety percent of the cases in which it does occur, id. at 240, and that seriously mentally disabled criminal defendants will often feign sanity in an effort to avoid stigmatization as mentally ill, even where such evidence might serve as powerful mitigating evidence in death penalty cases. Id. at 240-41 (noting that "juveniles imprisoned on death row were quick to tell Dr. Dorothy Lewis and her associates, 'I'm not crazy,' or 'I'm not a retard.'").

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n103 DSM, supra note 77, at 39. n104 See id. at 73-74 (discussing how tests may be biased against minorities or by examiner behavior); David L. Rumley, A License to Kill: The Categorical Exemption of the Mentally Retarded from the Death Penalty, 24 St. Mary's L.J. 1299, 1329-40 (1993) (discussing the unreliability of IQ tests and stating that, as a result, "the obtained score is only one of a number of possible scores that may be achieved with different sample questions or with the same questions at different times"); Jonathan L. Bing, Protecting the Mentally Retarded from Capital Punishment: State Efforts Since Penry and Recommendations for the Future, 22 N.Y.U. Rev. L. & Soc. Change 59, 67-70 (1996) (discussing debates about whether the cut-off score should be seventy or as high as eighty- five). n105 DSM, supra note 77, at 39-40. n106 See Douglas Mossman, Atkins v. Virginia: A Psychiatric Can of Worms, 33 N.M. L. Rev. 255 (2003); Jeffrey Fagan, Atkins, Culpability and the Jurisprudence of Adolescent Punishment, 33 N.M L. Rev. 207 (2003). See also Bing, supra note 104, at 70 (discussing the various definitions of "adaptive functioning"). n107 For instance, Oklahoma's newly promulgated rules for implementing Atkins provide that the defendant bears the burden of showing mental retardation by a preponderance of the evidence. See Murphy v. State, Okla. No. PCD-2-2-1197 (2002); 71 Crim. L. Rep. 658 (2002). If a legislature or court is concerned that mental illness is more difficult to discern accurately, the defendant can be required to show its existence by clear and convincing evidence or proof beyond a reasonable doubt. There are many examples of cases where such proof is not forthcoming, despite some evidence of mental illness. See, e.g., Bottoson v. Moore, 234 F.3d 526 (11th Cir. 2000) (finding that careful assessment of offender's psychiatric history and behavior around time of the offense revealed no symptoms of schizophrenia at or near that time despite defense expert's conclusory testimony that he was psychotic when the crime was committed).

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n108 See supra text accompanying notes 66-67. n109 DSM, supra note 77, at 282. n110 Id. n111 Cf. Atkins, 536 U.S. at 317 ("As with our approach in Ford v. Wainwright, with regard to insanity, 'we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.'"). n112 See Erwin Chemerinsky, Constitutional Law: Principles and Policies 518-19 (2002) (1997) (noting that rational basis analysis will strike down a law only if it is "not a reasonable way to attain the end" whereas intermediate scrutiny strikes down a law unless the means chosen is "narrowly tailored to achieve the goal"). n113 Cf. David Wexler, Inducing Therapeutic Compliance Through the Criminal Law, 14 L. & Psychol. Rev. 43 (1990) (suggesting that mentally ill persons who fail to take medication knowing the possible consequences are guilty of the crime of "reckless endangerment"). n114 DSM, supra note 77, at 282. n115 Id. at 275. n116 Id. n117 Id. n118 Id. at 276. n119 Id. n120 I have argued that people with mental illness usually retain some sense of right and wrong, and thus should not be found insane when they intentionally commit crime unless their motivating delusions, if assumed to be true, would sound in justification or duress. Christopher Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, 86 Va. L. Rev. 1199 (2000). In the death penalty context, however, the issue is not whether culpability is so diminished that the person should be acquitted, but rather whether it is diminished sufficiently to make the ultimate punishment unwarranted. n121 See generally Herbert Y. Meltzer & S. Hossein

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Fatemi, Treatment of Schizophrenia, in Essentials of Clinical Pharmacology 399, 406 (Alan F. Schatzberg & Charles B. Nemeroff eds., 2001) ("Conventional neuroleptics and the atypical antipsychotics are effective in treating an acute exacerbation of schizophreniaand effect remission of psychosis in about 75% of patients within days to months.Most patients show a near maximal response by 6 weeks of treatment."). n122 Textbook of Psychiatry 710-11 (John A. Talbott et al. eds., 1988) (discussing the need for "long-term" programs for those with mental retardation); Scott W. Henggeler et al., Multisystemic Treatment of Antisocial Behavior in Children and Adolescents 3-20 (1998) (describing state of the art treatment designed to reduce recidivism in youth that takes approximately four months). n123 A principal symptom of psychosis is "lack of insight" into the nature of one's mental condition. DSM, supra note 77, at 279 ("Lack of insight is common and may be one of the best predictors of poor outcome, perhaps because it predisposes the individual to noncompliance with treatment."). n124 See Meltzer & Fatemi, supra note 121, at 413-21 (describing complications of psychotropic drugs, including hypertension, muscle spasms, Parkinsonism, seizures, and tardive dyskinesia); Patricia L. Gilbert et al., Neuroleptic Withdrawal in Schizophrenia Patients: A Review of the Literature, 52 Arch. Gen. Psychiatry 173, 182 (1995) ("approximately half of all the patients withdrawn from neuroleptic therapy remained stable without relapse over average follow-up periods of 6.3 to 9.7 months, while, despite neuroleptic maintenance, 15.6 percent patients [sic] relapsed over an average follow-up period of 7.9 months"); Ebrahim M. Gul, Patient Response to Clozapine in a Forensic Psychiatric Hospital, 45 Hosp. & Comm. Psychiatry 271 (1994) (finding that thirty percent of forensic patients did not have a "clinically effective response" from administration of clozapine, a new, highly touted anti-psychotic medication). n125 Robert Pear, Few Seek to Treat Mental Disorders Common, U.S. Says; Many Not Treated, N.Y. Times, Dec. 13, 1999, at A1.

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n126 Ellis & Luckasson, supra note 54, at 430, 439 ("Many mentally retarded individuals expend considerable energy attempting to avoid this stigma, even though proper teaching can equip most retarded persons to tailor their actions to social expectations."). n127 Howard N. Snyder & M. Sickmund, Juvenile Offenders and Victims: 1999 National Report (Juvenile Justice Clearinghouse 1999) (finding that forty percent of males with a violent career and thirty-four percent of females with an antisocial career come into contact with the justice system before age thirteen). n128 Atkins, 536 U.S. at 319; Thompson, 487 U.S. at 836. n129 536 U.S. at 350 (Scalia, J., dissenting) ("The Court conveniently ignores a third 'social purpose' of the death penalty-'incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future.'"). n130 See supra text accompanying note 90. See also Aletha Claussen-Schulz et al., Attitudes, Evidence, Jury Instructions, and Offender Dangerousness: Which Paths Point to Death? (manuscript in preparation) (finding, in a study using mock jurors, that concerns about future violent conduct accounted for more variance in the sentencing decision than did other aggravating circumstances); Sally Costanzo & Mark Costanzo, Life or Death Decisions: An Analysis of Capital Jury Decision Making Under the Special Issues Sentencing Framework, 18 L. & Hum. Behav. 151 (1994) (finding, based on interviews of capital sentencing jurors, that jurors tended to spend most of their deliberation time deciding whether the defendant would be violent if not executed). n131 Even before Atkins, the Supreme Court had held that mental retardation is a constitutionally mandated mitigating factor. Penry, 492 U.S. at 328. The Court has also strongly suggested that the Constitution requires that mental illness and youth be considered in mitigation. Lockett v. Ohio, 438 U.S. 586, 604 (1978) ("The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a

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defendant's character or record."). In any event, every state does so. See supra note 86; Eddings v. Oklahoma, 455 U.S. 104, 115 (1982). n132 I elaborate on this argument in Slobogin, supra note 1, at 670. See also Zant v. Stephens, 462 U.S. 862, 885 (1983) (stating, in dictum, that it would be constitutionally impermissible to give aggravating effect to factors such as "race, religion or political affiliation orconduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness"). n133 See Reisner, Slobogin & Rai, supra note 88, at 653- 55 (summarizing studies). n134 James Bonta et al., The Prediction of Criminal and Violent Recidivism Among Mentally Disordered Offenders: A Meta Analysis, 123 Psychol. Bull. 123 (1998) (meta- analysis finding that the major predictors of recidivism were the same for mentally disordered offenders as for nondisordered offenders, and that psychopathology should be deemphasized as a predictor); Marnie E. Rice & Grant T. Harris, A Comparison of Criminal Recidivism Among Schizophrenic and Nonschizophrenic Offenders, 15 Int'l J.L. & Psychiatry 397 (1992) (finding that schizophrenic subjects were less likely to commit offenses upon release than their nonschizophrenic counterparts). n135 Compare supra note 134 (regarding data describing recidivism among offenders with mental illness) with supra note 54 (regarding data describing recidivism among offenders with mental retardation); Health Evidence Bulls. (Dec. 31, 1999), at http://hebw.uwcm.ac.uk/learningdisabilities/chapter6.htm (citing several studies concerning recidivism of "intellectually disabled" offenders and concluding that "[s]tudies have found re- offending rates of untreated offenders of between 40 and 70%.A range of studies have found re-offending rates following treatment to be between 20 and 55% depending on the type of treatment and the offence."); Emily F. Reed, The Penry Penalty: Capital Punishment and Offenders with Mental Retardation 17 (1993) (describing data showing a link between mental retardation and crime).

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n136 Compare Snyder & Sickmund, supra note 127, at 62 (finding that, nationally, juveniles committed twenty- seven percent of violent victimizations in the years surveyed) and Dep't Human Services, Victoria, Aust., Recidivism Among Victorian Juvenile Justice Clients, 1997- 2001 12 (2002), available at http://www.dhs.vic.gov.au (Juvenile Justice) (last modified Feb. 13, 2003) (stating that recidivism rate of children ages eleven through sixteen ranges from eighty percent to 40.8 percent) with Henry Steadman et al., Violence by People Discharged from Acute Psychiatric Inpatient Facilities and by Others in the Same Neighborhoods, 55 Arch. Gen. Psychiatry 393 (1998) (finding no significant differences between the prevalence of violence by patients with mental illness and by others living in the same neighborhood). n137 See, e.g., Bernice A. Pescosolido et al., The Public's View of the Competence, Dangerousness, and Need for Legal Coercion of Persons with Mental Health Problems, 89 Am. J. Pub. Health 1339, 1341 (1999) (reporting that while seventeen percent of a random sample of citizens felt that a "troubled person" was "very likely" or "somewhat likely" to be violent, 33.3 percent said the same of the depressed person, and sixty percent said the same of a person with schizophrenia); Linda Teplin, The Criminality of the Mentally Ill: A Dangerous Misconception, 142 Am. J. Psychiatry 593, 597-98 (1985). n138 As noted earlier, see supra text accompanying notes 90 and 130, dangerousness seems to be the predominant factor in death penalty decision making. n139 For a description of the Capital Jury Sentencing Project, see William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 Ind. L.J. 1043 (1995). n140 Steven P. Garvey, The Emotional Economy of Capital Sentencing, 75 N.Y.U. L. Rev. 26 (2000). n141 Id. at 64. n142 Id. at 59-61 (tbls. 8, 9). n143 Id. at 56 (tbl. 7).

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n144 As Connecticut has demonstrated, legislative action is possible. See supra note 41. Similarly, state governors, through implementation of executive clemency, can recognize the mitigating effects of mental illness. See, e.g., Elizabeth Rapaport, Straight Is the Gate: Capital Clemency in the United States from Gregg to Atkins, 33 N.M. L. Rev. 349 (2003) (describing Governor Gilmore's 1999 commutation of the death sentence of Calvin Eugene Swann, who allegedly suffered from schizophrenia at time of offense, see Swann v. Virginia, 441 S.E.2d 195, 203 (Va. 1994), and clearly did at time of commutation).

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