Miranda W. Turner, M.S., LL.M. candidate
In February 2002, the United States Supreme Court mandated a significant change in the way the death penalty could be administered by the states. Specifically, in the case of Atkins v. Virginia, 536 U.S. 304, otherwise known as Atkins III, the Court declared that the execution of mentally retarded persons was cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution. Reasoning that the execution of mentally retarded persons did not further the goals of either retribution or deterrence, and further finding that such executions offended “evolving standards of decency,” the Supreme Court determined that the states were restricted from executing the mentally retarded. However, the Supreme Court neither specifically defined the term “mentally retarded, ” nor decided the method the states should use to “develop appropriate ways to enforce the constitutional restriction upon its execution of sentences.” The Supreme Court also recognized that “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offender about whom there is a national consensus” against executing.
The Atkins case itself was remanded to the Supreme Court of Virginia (Atkins IV, 266 Va. 73 (2003)), which remanded the case back to the circuit court to empanel a new jury to determine whether Atkins was, in fact, mentally retarded, as new Virginia emergency legislation defined the term. The Virginia legislature also decided that the defendant bore the burden of proving mental retardation by a preponderance of the evidence.
In February 2004, the Texas Court of Criminal Appeals was faced with deciding the question of how to implement Atkins III. Unlike Virginia, the Texas legislature failed to pass legislation directing the courts on how to implement the Supreme Court’s decision, although such legislation had been considered.. When the case of Ex Parte Jose Garcia Briseno, 2004 Tex. Crim. App. LEXIS 199, reached the court, it came as an appeal from a lower court decision denying relief under a writ of habeas corpus application alleging that the convict, Jose Briseno, was mentally retarded and thus exempt from execution. The lower court’s decision was based on its opinion that Mr. Briseno failed to prove by a preponderance of the evidence that he was mentally retarded.
Mr. Briseno was convicted of capital murder and sentenced to death after he murdered Sheriff Ben Murray in the sheriff’s home in 1991, additionally stealing some money and weapons from the home. Authorities first learned of Mr. Briseno’s involvement in the murder after he led an escape from the prison where he was being held on another charge. After the three escapees were captured, one of the other prisoners related that Mr. Briseno told him about the murder, and offered to share the stolen money with him if he helped Briseno escape from prison. He remained in prison, and filed his writ application in July 2002, after the Supreme Court’s decision in Atkins III, alleging that he was mentally retarded and therefore could not be executed. The trial court heard evidence including two defense experts and a state expert, all of whom gave opinions as to whether Mr. Briseno was mentally retarded. The state expert and the primary defense expert predictably disagreed on this point. The defense expert opined that Briseno was mentally retarded, while the state expert testified that Mr. Bresino was not mentally retarded; rather he had borderline intellectual functioning and strong indicators of Antisocial Personality Disorder.
Given this information, the Texas Court of Criminal Appeals was left to the evidentiary standard upon which a finding of mental retardation had to be based, and whether the determination of the issue, when brought up in a plea for post conviction relief, needed to be decided by a jury. Interestingly, the court did not decide the criteria to be used to define mental retardation in Texas, because both parties and the trial court all used the definition provided by the American Association of Mental Retardation (AAMR). According to the AAMR, a person is mentally retarded if he or she has significantly subaverage intellectual functioning accompanied by related deficits in adaptive functioning which onset prior to the age of 18. Although the definitional question was not before them, the court did state that until the legislature adopted a specific definition of the term “mentally retarded” it would follow the AAMR guidance.
The court first found that Briseno was not entitled to a jury trial on the issue of mental retardation, since “a lack of mental retardation is not an implied element of the crime of capital murder,” and because “our state habeas statute does not provide for a jury determination of fact issues on post conviction habeas corpus review.” The Texas Court of Appeals then determined that the burden of proof was on the defendant to prove mental retardation by a preponderance of the evidence, noting that other states used this standard, the bill considered by the legislature on the subject adopted this standard, and that the issue of mental retardation was similar to other affirmative defenses such as insanity or incompetency. Finally, the court reviewed the evidence presented to the trial court under a sufficiency of the evidence standard.
The court noted that both defense and state experts administered IQ tests to Briseno, and both test revealed scored in the borderline intelligence range, meaning he scored slightly above 70, which is deemed the cut off score to diagnose the intellectual component of mild mental retardation. It is significant to note that according to the DSM-IV-TR, a mildly mentally retarded individual (IQ of approximately 55-70) can, with appropriate supports, live successfully in the community and usual acquire vocational and social skills adequate to support themselves. Furthermore, the DSM-IV-TR notes that with appropriate training, some of these individuals adapt well enough that they no longer meet the criteria to be classified as mentally retarded.
Both experts also reviewed Mr. Briseno’s past and present behavior, which was fraught with juvenile delinquency, impulsivity, criminal acts, and prison disciplinary incidents. The defense expert testified that these all showed deficits in adaptive functioning as might be expected from a mentally retarded individual and did begin before age 18 as required . However, the state’s expert, reviewing the same information, noted that the very same behaviors relied upon by the defense as indicating mental retardation actually comported with the definition of Antisocial Personality Disorder. Such disorder may be diagnosed when an individual exhibited signs of conduct disorder prior to age 15, and since age 15 has engaged in at least three behaviors from the following list: repeatedly engaging in illegal acts, deceitfulness, impulsivity, irritability/aggressiveness, reckless disregard for the safety of others, consistent irresponsibility, and lack of remorse. Ultimately, the Texas Court of Appeals found that the trial court’s determination that Mr. Briseno was not mentally retarded was based on fact in the record, and deferred to the trial court’s credibility determinations as between the credibility determinations surrounding the testimony given by the two experts.
The Briseno case is interesting, in that while most persons would agree that the execution of a severely or profoundly mentally retarded individual is improper in accordance with the Supreme Court’s decision in Atkins III, the situation of the individual who either exhibits borderline intellectual functioning or mild mental retardation is unclear. Certainly, other mental defects more strongly affect the ability to understand and comply with the law than does mild mental retardation. Although the question has not yet been decided, it is a significant issue whether society should just use the bright line rule that anyone with an IQ of seventy or below and deficits in adaptive functioning should be exempt from the death penalty, regardless of their individual abilities and capacity to conform their conduct to the law and understand the consequences of their actions. For instance, in Virginia, the state from which Atkins III arose, the court declined to commute a petitioner’s death sentence because although the individual had a range of IQ scores from a high of 90 to a low of 64 at various times, psychologists determined the low scores were caused by psychosis rather than mental retardation (Walton v. Johnson, 269 F.Supp 692 (Va. 2003). Similarly in Johnson v. Commonwealth, 267 Va. 53 (2004), the court held the death penalty as valid against an individual whose tested IQ placed him in the borderline intellectual functioning range, was 16 years old at the time of the crime, and who suffered from dissociative identity disorder (in fact, the court used the DID against the petitioner, because it could account for the low IQ scores if an alter who did not learn the material being questioned took the IQ test). It is questionable whether these individuals are more morally culpable than a mildly retarded individual. The willingness to sentence these individuals to death while protecting the mentally retarded suggest that society is more comfortable accepting mental retardation as a foundation for reduced culpability than it is to accept other forms of mental disease or defect, perhaps due to prejudice. Furthermore, the boundary between someone with borderline intellectual capacity and someone with mild mental retardation may be far from clear, and it seems rather arbitrary to let the first die while the second lives, although their IQ’s may be only a few points apart and their adaptive functioning similar. Finally, such determinations arguably place far too much power in the hands of mental health professionals, who now, literally, may decide whether a person lives or dies through their assessment of whether or not a capital convict is mentally retarded. As the Bresino case itself shows, reasonable psychotherapists may disagree as to the appropriate diagnosis (perhaps being biased by their own feelings towards the death penalty), and then the finder of fact, whether it be a judge or lay jury, is left to determine which professional is correct despite having little or no education upon which to form such opinion.