COMPETENCY FOR EXECUTION

1. COMPETENCY FOR EXECUTION EXECUTING THE MENTALLY RETARDED (IT’S NOT ALLOWED) THE “RIGHT” TO BE COMPETENT TO BE EXECUTED

2. EIGHTH AMENDMENT “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

3. ATKINS EXEMPTION • Atkins v. Virginia, 536 U.S. 304 (2002). • The Eight Amendment prohibits executing the “mentally retarded.” • Once a “mental retardation” determination is settled (affirmed on appeal) a death sentence is not possible.

4. COMPETENT TO BE EXECUTED • The Eighth Amendment prohibits executing someone who is not competent to be executed. • May be reconsidered at any time… before execution, that is.

5. THE CONVICTION, SENTENCE, AND REVIEW CRIMINAL CASE CIVIL REVIEW Appellate Courts: Error review by a superior court United States Supreme Court United States Supreme Court United States Supreme Court Direct appeal State post-conviction appeal Federal habeas corpus appeal Trial (District) Court Trial: Penalty Phase Guilt Phase State post-conviction review Federal habeas corpus review State Court Federal Court

6. THE CONVICTION, SENTENCE, AND REVIEW CRIMINAL CASE CIVIL REVIEW Appellate Courts: Error review by a superior court Trial (District) Court Trial: Penalty Phase Guilt Phase State Court Federal Court

7. THE CONVICTION, SENTENCE, AND REVIEW CRIMINAL CASE CIVIL REVIEW Appellate Courts: Error review by a superior court United States Supreme Court United States Supreme Court United States Supreme Court Direct appeal State post-conviction appeal Federal habeas corpus appeal Trial (District) Court Trial: Penalty Phase Guilt Phase State post-conviction review Federal habeas corpus review State Court Federal Court

8. THE CONVICTION, SENTENCE, AND REVIEW CRIMINAL CASE CIVIL REVIEW Appellate Courts: Error review by a superior court United States Supreme Court Trial (District) Court Trial: Penalty Phase Guilt Phase State Court Federal Court

9. Atkins holding • Under “evolving standards of decency,” executing the “mentally retarded” violates the Eighth Amendment. • By the time the Supreme Court decided Atkins, the consistent direction in the states was to prohibit death sentences for the “mentally retarded,” and those laws passed with overwhelming majorities in the state legislatures.

10. Atkins holding (cont’d.) • Diminished capacity of the “mentally retarded” confirmed the conclusion. • This analysis focused on decreased capacity to appreciate wrongfulness and control impulses. • Also considered as decreased capacity to assist counsel.

11. Atkins holding (cont’d.) BUT Atkins does not define what “mentally retarded” means for purposes of the 8th Amendment proscription. The Supreme Court left that to the states. SO “Mental retardation” for Atkins purposes is not a clinical issue; it is a legal issue and it is defined by statute.

12. Atkins holding (cont’d.) THAT MEANS • This process will be more adversarial than a competency determination. • There will likely be competing expert opinions. • And the judge, not the mental health professionals, will be the one to finally decide whether the defendant is “mentally retarded.”

13. What else Atkins is not • The Atkins proscription is not a “competency” issue. • It does not depend on the ability to understand the proceedings or assist counsel. • It is legally immutable. Once it has been finally determined, it cannot be revisited. • It is not a capital penalty phase concept • Someone who is Atkins exempt may not be sentenced to death & will never go to a capital penalty phase. • Different from mental health evidence presented at a penalty phase that can be added to the entire picture in determining whether to actually impose death on someone who may be sentenced to death.

14. Utah’s Atkins Statute http://le.utah.gov/code/TITLE77/htm/77_15a010100.htm http://le.utah.gov/code/TITLE77/htm/77_15a010400.htm

15. State v. Maestas, 299 P.3d 892 (Utah 2012)

16. State v. Maestas Affirms the statutory provision that imposes on the defendant the burden of proving he is Atkins exempt. What that means: • Although the statute purports to treat this like a typical, non-partisan competency issue, you will likely face defense-retained experts.

17. State v. Maestas • Again, issue is legal, not clinical. • While the “clinical” considerations, e.g., I.Q. scores, may be relevant, they are not controlling.

18. State v. Maestas: meaning of “significant subaverage general intellectual functioning” • Must be significant; “below average” is not enough. • IQ scores “can be one helpful measure,” but they are not controlling. • Trial courts should look to expert testimony on the validity and interpretation of the IQ scores.

19. Maestas: IQ scores (cont’d.) • Trial courts should consider clinical guidelines on IQ scores: refers to APA 70 or below guideline and DSM-IV-TR 5 point variance. • Flynn effect: no decision on whether it is a required adjustment because the district court took it into consideration. • Trial courts should consider testing issues such as testing environment and underperforming • If testifying in response to a retained expert, look at the defense expert’s raw data.

20. Maestas: SSGIF (cont’d.) • Also considered by Maestas courts: • Academic performance: showed Maestas had problems, but noted that factors other than “mental retardation” could have accounted for them. • No prior determination of “mental retardation” by a qualified expert. • The trial court’s interaction with Maestas.

21. SSGIF: OTHER PLACES TO LOOK • Real world performance: is the defendant’s overall functioning consistent with someone who has significantly subaverage general intellectual functioning? • Interviews with the defendant. • “Hell, man, I call that a party.” • People who interact or have interacted with the defendant: guards, teachers, counselors, social service providers.

22. IQ AS A CONSIDERATION ONLY • A person whose IQ is above even the upward deviation for a clinical determination may, in theory, still be found to have significantly subaverage general intellectual functioning for a statutory “mental retardation” death-penalty exemption. • Likewise, a person whose IQ scores are within the clinical definition may, in theory, still be found not to have significant subaverage general intellectual functioning.

23. IQ AS A CONSIDERATION ONLY (cont’d.) • Maestas: the trial court found his IQ was in the range of 77 to 85 – outside the clinical range – but did not rely on that as determinative. Neither did the UtSCt. • On the other hand, it is likely that the prominence IQ will have in the analysis will increase the more the IQ score pulls away from the close call zone.

24. “Significant deficiencies in adaptive functioning” • Maestas did not address this element because it was not at issue on appeal. • Note the focus on impulse control & reasoning, as opposed to day to day living: • These areas are most closely related to criminal culpability and discussed in the second part of Atkins. • Again, the standard is legal, not clinical.

25. SDAF (cont’d.) • Adaptive functioning tests may not be very helpful: • Statutory focus is on criminal culpability, not general functioning. • Also, often being given to a person who has spent a good part of his life in prison.

26. STATUTORY SDIAF: PLACES TO LOOK & THINGS TO CONSIDER • Prison guards, teachers, social services providers. • Prison/jail records. • Does he hold down a prison job? Is he a janitor or is he doing data entry that requires reasoning skills? • Is he a leader or a follower? • Will he rack in when he’s ordered to? Does he comply with other orders?

27. STATUTORY SDAF: PLACES TO LOOK & THINGS TO CONSIDER (cont’d.) • Does he instigate or walk away from fights? • Work history outside prison, if any? • Crime circumstances & criminal history: • CAVEAT: The specifics are important.

28. Maestas unresolved issue • Whether the SSGIF must cause the adaptive functioning deficits in impulse control and reasoning. • For now, the evaluations should address it both ways.

29. “MENTAL RETARDATION” AS A DEFENSE TO GUILT • This defense is available to all criminal defendants. It is not a capital case issue or constitutional issue. • The mental illness defense statute (§ 76-2-305) includes “mental retardation” as a mental illness that can support a guilt defense. • The definition of “mental retardation” is similar, but does not include the restrictive “impulse control” and “reasoning” language in the adaptive functioning component; BUT

30. “MENTAL RETARDATION” AS A DEFENSE TO GUILT (cont’d.) • By law, lack of impulse control cannot be enough to support a mental illness defense. • And by law, “mental retardation” will support a defense only if it negates the mental state. • For murder that means that, by reason of “mental retardation,” the defendant is not aware that he is using lethal force against a human being.

31. “MENTAL RETARDATION” AS SPECIAL MITIGATION • § 76-5-205.5 defines special mitigation. • Lowers a murder conviction by one degree when, by reason of mental illness, the defendant acts under a delusion, and if the facts were as he perceived them to be, the killing would be justified. • “Mental illness” is defined to include “mental retardation.”

32. COMPETENT TO BE EXECUTED Panetti v. Quarterman, 551 U.S. 930 (2007)

33. COMPETENT TO BE EXECUTED • Violates the Eighth Amendment to execute someone who is not competent to be executed. • Standard = • Knows she will be executed • Knows why. • On the second, it was generally thought to be enough if defendant understood that he was being executed because he was convicted of capital crime.

34. Panetti • “A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it.” • Panetti understood the State’s stated reason for the execution – he was convicted of capital murder. But there was evidence that he suffered from a delusion that “recast” the true reason to be to stop him from preaching, which he allegedly believed was part of a larger spiritual war between heaven and hell.

35. Panetti (cont’d.) • Supreme Court held this had to be taken into account. • “Petitioner’s submission is that he suffers from a severe, documented mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced. This argument, we hold, should have been considered.”

36. Panetti (cont’d.) • And “Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose.”

37. Panetti (cont’d.) • BUT “Although we reject the standard followed by the Court of Appeals, we do not attempt to set down a rule governing all competency determinations.”

38. Panetti (cont’d.) • So what does she have to understand? ?