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

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CERTIORARI TO THE SUPREME COURT OF VIRGINIA No. 00-8452. Argued February 20, 2002-Decided June 20, 2002

Petitioner Atkins was convicted of capital murder and related crimes by a Virginia jury and sentenced to death. Affirming, the Virginia Supreme Court relied on Penry v. Lynaugh, 492 U. S. 302, in rejecting Atkins' contention that he could not be sentenced to death because he is mentally retarded.

Held: Executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. Pp. 311-321.

(a) A punishment is "excessive," and therefore prohibited by the Amendment, if it is not graduated and proportioned to the offense. E. g., Weems v. United States, 217 U. S. 349, 367. An excessiveness claim is judged by currently prevailing standards of decency. Trop v. Dulles, 356 U. S. 86,100-101. Proportionality review under such evolving standards should be informed by objective factors to the maximum possible extent, see, e. g., Harmelin v. Michigan, 501 U. S. 957, 1000, the clearest and most reliable of which is the legislation enacted by the country's legislatures, Penry, 492 U. S., at 331. In addition to objective evidence, the Constitution contemplates that this Court will bring its own judgment to bear by asking whether there is reason to agree or disagree with the judgment reached by the citizenry and its legislators,

(b) Much has changed since Penry's conclusion that the two state statutes then existing that prohibited such executions, even when added to the 14 States that had rejected capital punishment completely, did not provide sufficient evidence of a consensus. 492 U. S., at 334. Subsequently, a significant number of States have concluded that death is not a suitable punishment for a mentally retarded criminal, and similar bills have passed at least one house in other States. It is not so much the number of these States that is significant, but the consistency of the direction of change. Given that anticrime legislation is far more popular than legislation protecting violent criminals, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of legislation reinstating such executions) provides powerful evidence that today society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures addressing the issue have voted overwhelmingly in favor of the prohibition.


Moreover, even in States allowing the execution of mentally retarded offenders, the practice is uncommon. Pp. 313-317.

(c) An independent evaluation of the issue reveals no reason for the Court to disagree with the legislative consensus. Clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial, but, 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 others' reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability. In light of these deficiencies, the Court's death penalty jurisprudence provides two reasons to agree with the legislative consensus. First, there is a serious question whether either justification underpinning the death penalty-retribution and deterrence of capital crimes-applies to mentally retarded offenders. As to retribution, the severity of the appropriate punishment necessarily depends on the offender's culpability. If the culpability of the average murderer is insufficient to justify imposition of death, see Godfrey v. Georgia, 446 U. S. 420, 433, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. As to deterrence, the same cognitive and behavioral impairments that make mentally retarded defendants less morally culpable 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 death penalty's deterrent effect with respect to offenders who are not mentally retarded. Second, mentally retarded defendants in the aggregate face a special risk of wrongful execution because of the possibility that they will unwittingly confess to crimes they did not commit, their lesser ability to give their counsel meaningful assistance, and the facts that they are typically poor witnesses and that their demeanor may create an unwarranted impression of lack of remorse for their crimes. Pp. 317-321.

260 Va. 375, 534 S. E. 2d 312, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined, post, p. 321. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 337.

Primary Holding

Under the Eighth Amendment, a state cannot sentence a defendant to death who meets its definition of a mentally retarded individual.


Daryl Atkins kidnapped an Air Force serviceman, Eric Nesbitt, at a convenience store and stole $60 from his wallet. He also forced Nesbitt to withdraw $200 from an ATM, but this money was not enough for Atkins and accomplice William Jones. They took Nesbitt to an isolated location and killed him by shooting him eight times. When Atkins and Jones were arrested and questioned, law enforcement noticed that Atkins' testimony was not entirely plausible. They also received information from another prisoner that Atkins had confessed to the murder. The prosecution persuaded Jones to testify against Atkins in exchange for dropping the death penalty charges against him.

Atkins was convicted of murder and sentenced to death despite the defense's argument that he was mildly mentally retarded. Evidence from a psychologist revealed that he had an IQ of 59, which is well below the normal range. The sentence was initially overturned due to a procedural error, and the prosecution used its own psychological expert at the retrial. This expert claimed that Atkins had average intelligence, judging by a more subjective analysis than the IQ test. The prosecution also persuaded the jury that he posed a risk of future dangerousness based on a record of violent crimes and that the manner of the crime was particularly vile, both of which are aggravating factors that can support a death sentence. Atkins was sentenced to death again, and the Virginia Supreme Court sustained the sentence this time.

The U.S Supreme Court chose to review the case because the 1989 precedent on which the Virginia Supreme Court based its reasoning was arguably outdated. Since that time, a consensus had developed among state legislatures that the death penalty was not appropriate for mentally retarded individuals.

Procedural History

Supreme Court of Virginia - 510 S.E.2d 445 (Va. 1999)

Reversed and remanded. This was the stage at which the case was sent back for a retrial based on a minor procedural error in the sentencing form.

Supreme Court of Virginia - 534 S.E.2d 312 (Va. 2000)

Affirmed. The death sentence handed down by the jury is not impermissible, based on the U.S. Supreme Court decision in Penry v. Lynaugh.



  • John Paul Stevens (Author)
  • Sandra Day O'Connor
  • Anthony M. Kennedy
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

The majority referred back to precedents such as Coker v. Georgia in which it had struck down the death penalty as unconstitutional in situations when a national consensus against it had developed in state legislatures. As with defendants convicted of crimes other than murder, defendants who were mentally retarded had come to be viewed as unsuitable candidates for the death penalty. This had not been the situation in 1989 when the Court decided Penry v. Lynaugh, at which point only two states and the federal government held that view. However, 19 of the 29 remaining states that retain the death penalty had banned its use against mentally retarded individuals during the intervening time.

A consensus thus appeared to have emerged that imposing the death penalty on mentally retarded defendants was cruel and unusual punishment under the Eighth Amendment. This was logical because it did not fulfill the objectives of retribution and deterrence, since people with mental deficiencies are less likely to understand why they are being punished in a certain way or to take lessons from how others in similar situations are punished. The majority also noted that these individuals are less likely to seem sympathetic because of their communicative deficiencies and cognitive isolation from those around them. As a result, they are at greater risk for receiving the death penalty from a jury that may misinterpret their demeanor and reactions.

However, the majority noted that states are free to set the definition of a mentally retarded individual as they see fit, which still gives them some control over who may be eligible for the death penalty.


  • William Hubbs Rehnquist (Author)
  • Antonin Scalia
  • Clarence Thomas

Rehnquist was skeptical that the consensus alleged by the majority actually had developed, since a meaningful number of states retained the death penalty for mentally retarded defendants. Moreover, he saw public opinion as an inappropriate measure of constitutional norms. Rehnquist criticized the majority for consulting parallel laws in the European Union, since he felt that no social norms outside the United States should be relevant to the inquiry.


  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Clarence Thomas

In addition to supporting Rehnquist's arguments, Scalia accused the majority of basing its decision largely on its personal viewpoints rather than legal doctrine.

Case Commentary

A national consensus against a certain practice in sentencing or punishment can be inferred when most states have abandoned it. Here, even states that still technically permitted the execution of retarded defendants rarely carried them out. This case was part of the Court's progression from Gregg v. Georgia to Kennedy v. Louisiana, during which it gradually narrowed the groups of defendants who could be eligible for the death penalty. While it shrank from declaring capital punishment unconstitutional per se, the Court's discomfort with applying it broadly has emerged from a series of decisions eliminating it in a variety of special contexts, ranging from the mentally retarded to defendants convicted of crimes other than murder and participants in felony murder.

On remand, Atkins again was sentenced to death when a jury found that his IQ had improved and that he was now mentally competent. The execution was stayed, however, and later allegations of prosecutorial misconduct caused a judge reviewing the case to commute his sentence to life imprisonment despite the compelling evidence against him. (This was a bizarre turn of events, since the normal course of action would have been to either uphold the sentence or remand for a completely new trial, but the Virginia Supreme Court found that the prosecution had no recourse to challenge the judge's decision.)

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