And Death Shall Have No Dominion: How To Achieve the Categorical Exemption of Mentally Retarded Defendants from Execution

J. Amy Dillard *

Shortly after the Supreme Court of the United States handed down its opinion in Atkins v. Virginia, exempting mentally retarded capital defendants from execution, the American Bar Association (“ABA”) issued two legislative options for states to adopt in order to comply with the directive of Atkins. Alternative A recommended that, upon notice from defense counsel that she had a good faith belief that her capital client was mentally retarded, the trial judge should conduct a pretrial hearing to determine if the defendant is mentally retarded and, thus, not death-eligible. Alternative B recommended that, upon notice from defense counsel that she had a good faith belief that her capital client was mentally retarded, the judge should empanel a jury for the sole purpose of determining if the defendant is mentally retarded and, thus, not death-eligible. By adopting either option, the mental retardation assessment would be kept away from the death-qualified juror, who might be inclined to ignore the core values of the criminal justice system and, more narrowly, the rationale in Atkins. With either ABA-suggested procedure, the trial court could assure due process for the mentally retarded capital defendant.

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* Assistant Professor of Law, University of Baltimore School of Law. J.D., Washington and Lee University Law School; B.A., Wellesley College.