Statement by Attorney Walter Long

Walter Long kindly gave us permission to publish this statement he made recently regarding the recent Supreme Court ruling on execution of people with mental retardation.

Statement by Attorney Walter Long Regarding Impact of U.S. Supreme Court’s Mental Retardation ruling

I have read Atkins v. Virginia, decided by the U.S. Supreme Court today, and have the following comments regarding its application to juvenile offenders:

1) I think Atkins is a very positive opinion for juvenile offender advocates. The opinion is written by Justice Stevens, joined by O’Connor, Kennedy, Breyer, Ginsberg, and Souter. Rehnquist and Scalia write separate dissents, joined by each other and Thomas (no surprise there, except one wonders why they could not have consolidated their opinions in one dissent).

2) The Court in Penry rejected the petitioner’s arguments that there was an “emerging national consensus” against the death penalty for persons with mental retardation. Justices have generally argued against finding a consensus where there is only an indication that change is in the air. (Justice Scalia observes in Atkins dissent that five of the statutes barring the death penalty for persons with mental retardation were enacted within the past year!) Here, however, the Court has embraced an “emerging” consensus, when combined with a variety of other factors, as sufficient to hold that the penalty as applied to a particular class is “unusual.”

In order to grant relief in Atkins, the Court had to either make a finding like this that an emerging consensus was sufficient, or it had to make a specific finding that the non-death penalty states should be included in the calculus. It went with the former, perhaps so as to avoid Stanford (which held that the non-death penalty states were irrelevant). This surprises me, somewhat, because I think Justice Scalia’s point is reasonable that a consensus may be more accurately shown by longer-standing statutes. Under his view, the evidence for juveniles would be stronger than for persons with mental retardation, because the juvenile statutes setting the eligibility age at 18 have existed for so much longer, for the most part.

The Atkins opinion accepting a trend (with no counter-trend) as relevant to a finding of consensus can only help, however, with regard to juvenile offenders, given the level of legislative action on their behalf in a large number of states, when coupled with the long-standing statutes already protecting juveniles in so many states.

3) While being careful not to refer to such data as “dispositive,” the Atkins majority has rehabilitated the opinions of “organizations with germane expertise,” religious communities (!), the “world community,” and polling data as relevant evidence of consensus. (FN 21 of the majority opinion) This may be the most remarkable aspect of the Atkins opinion. The Court majority in Stanford v. Kentucky (the juvenile offender case in 1989) rejected all of these as irrelevant. Justice Rehnquist’s dissent shows that the authority of Stanford is now in doubt on this point. He observes, “Stanford’s reasoning [rejecting international opinion] makes perfectly good sense, and the Court offers no basis to question it.” The Atkins Court has questioned it. I think it is obvious that Stanford has been overruled and is no longer good authority in regard to its holdings on the relevance of these matters.

This is extremely important for juvenile offenders, because I believe that in December the Inter-American Commission on Human Rights most likely is going to issue a report finding that the United States is violating a jus cogens norm prohibiting the death penalty for persons who were under 18 at the time of their offense. A jus cogens norm is the highest norm of international law, representing a principle that cannot be breached by any nation. Other such norms are the prohibitions on genocide, torture, and systematic racial discrimination. Federal courts have wrestled with the relationship between jus cogens norms and our own constitution, suggesting that they are at least on an equal par as authority.

4) The Court distinguishes the mental retardation class from juveniles in FN18 of the majority opinion. The text of the opinion at that point reads: “It is not so much the number of these States [barring the death penalty for persons with mental retardation] that is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.”

The footnote reads: “A comparison to Stanford v. Kentucky, 492 U.S. 361 (1989), in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty.” (referring to Montana and Indiana)

The opinion is a bit convoluted here. The Court says that it is “not the number of States” that matters, while at the same time asserting that “the large number of States . . . provides powerful evidence” of societal consensus.

The FN 18 comparison is illegitimate. If the Court is trying to say that it does not see the same legislative energy applied to the juvenile issue, it shouldn’t, because roughly the same states that SINCE 1989 bar the death penalty for juvenile offenders are the states that have been CATCHING UP in regard to protection for persons with mental retardation. Of the 18 states now barring the death penalty for persons with mental retardation by statute, only 5 do not also have statutes barring it for persons under 18 at the time of the offense. Legislative energy is not going to exist where protection is already in place. (Meanwhile, in the 2002 legislative season, there were 6-7 states considering raising the eligibility age to 18.) The Court’s finding in the text that 18 states barring the death penalty for persons with mental retardation is significant and large applies to the 16 states that bar the penalty for juvenile offenders (laying to one side the states with no death penalty at all). This represents just as much an established norm, with no state legislation backtracking on the juvenile issue since Stanford (as the Court notes with regard to the mental retardation issue).

5) The Court’s points about the consensus reflecting a widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and deterrence and retribution, are directly applicable to juvenile offenders.

Almost everything the Court says to describe mentally retarded persons fits what has been observed and proven about juvenile offenders: “Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they 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. There is no evidence that they are more likely to engage in criminal conduct than others, but THERE IS ABUNDANT EVIDENCE THAT THEY OFTEN ACT ON IMPULSE RATHER THAN PURSUANT TO A PREMEDITATED PLAN, AND THAT IN GROUP SETTINGS THEY ARE FOLLOWERS RATHER THAN LEADERS.” Juveniles as a class have the same lack of capacity, although it is not caused by “impairment” so much as lack of physical maturity. Modern brain scan technology has shown that the juvenile brain simply is not fully developed. The prefrontal cortex, which does not finish developing until the early 20s, governs logical reasoning, the ability to foresee consequences of actions, the ability to understand reactions of others, and impulsivity. Juveniles as a class, thus, also are uniquely likely to act on impulse and under the influence of peer pressure.

The Court’s conclusion that the mental deficiencies of persons with mental retardation diminish their personal culpability applies with equal force to juvenile offenders. Therefore, the penological purposes of retribution and deterrence are also ill-served by the application of the death penalty to juveniles as a class. In a future opinion on juveniles, the Court could simply import the language it uses to describe persons with mental retardation: “[T]he lesser culpability of the mentally retarded offender surely does not merit [the death penalty as a] form of retribution.” “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.”

6) Juveniles are also troubled by the last factor mentioned by the Atkins majority: a lesser ability to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. I think this was particularly a problem in Napoleon Beazley’s case. As bright as Napoleon was, I think he was limited by his developmental level from being able to have sufficient insight into his crime to adequately defend himself at trial. His mature reflection on death row enabled him to have some later understanding that helped us all to see the pressures on him as a juvenile that led to the offense (especially his dilemmas arising from being a black youth with white friends in that particular community). This information should have been presented to Napoleon’s trial jury at the punishment phase. Bracketing off for a moment the race bias problem with Napoleon’s jury, it is information that might have made a difference in the punishment verdict.

The Atkins Court refers to the trial “demeanor” of persons with mental retardation as creating an “unwarranted impression of lack of remorse for their crimes.” A juvenile, by virtue of the fact that he is a juvenile unable to comprehend what is going on around him in the trial process, will characteristically have this same demeanor, misleading the jury about remorse. I would imagine that this was a particular problem in Napoleon’s case, where the prosecution set about to create what I believe was a false impression: that he premeditated the murder of John Luttig. I believe that the crime was intentional, but occurred on impulse. Everything suggests that, in the aftermath, Napoleon had little to no understanding of it. A number of his post-crime comments, as related by the Coleman brothers, were the observations of an uncomprehending child used by the prosecution to make him seem unremorseful.

Overall, Atkins is very positive for juvenile offenders. Because of the similarities in regard to the number of states barring the death penalty for each class and the obvious parallels, if not identities, on all of the relevant substantive issues, the Court should take the case of a juvenile offender in the near future.

Walter Long

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