Facts—Daryl Atkins was convicted of a number of crimes including capital murder for the robbery and shooting of Eric Nesbitt. The jury found aggravating circumstances and sentenced Atkins to death despite testimony at his penalty hearing indicating that he was “mildly mentally retarded” with an IQ of fifty-nine, putting him in the 1 to 3 percent of the population with an IQ of seventy to seventy-five or lower. The supreme court of Virginia issued a divided opinion upholding Atkins’s capital sentence.

Question—Does it violate the Eighth (“cruel and unusual punishment”) and Fourteenth Amendments to execute an individual who is mildly retarded?

Decision—Yes.

Reasons—J. Stevens (6–3). The Eighth Amendment “prohibits ‘excessive’ sanctions.” Sanctions must be judged not according to the time when the amendment was adopted but according to contemporary developments. Since states began considering executions of the mentally retarded in 1986, eighteen states with the death penalty have limited such executions. The “consistency of the direction of [this] change” indicates that “a national consensus has developed against it.” The state has the responsibility to decide who should be so classified and how the prohibition on such executions should be enforced. The mentally retarded “have diminished capacities to understand and process information.” This makes the rationales of “retribution” and “deterrence” problematic with respect to them and increases the possibility of false confessions that might lead to wrongful executions.

In dissent, C.J. Rehnquist noted that although eighteen states with the death penalty prohibited the execution of mentally retarded individuals, nineteen states still permitted it. He also objected to the weight the majority appeared to give to foreign laws and to public opinion polls.

J. Scalia’s dissent argued that the Court’s decision had “no support in the text or history of the Eighth Amendment” but simply reflected the policy preferences of the majority. He observed that Atkins’s retardation had been considered in the sentencing phase of his trial and that under standards in force when the Eighth Amendment was adopted only those who were severely or profoundly retarded (an IQ of twenty-five or below) were given special treatment. The practice of eighteen of thirty-eight states with the death penalty did not establish a contemporary consensus, and legislation in all the states was still in its infancy. Scalia thought a system in which the sentencer weighed the circumstances in individual cases was more consistent with the Eighth Amendment than was a categorical rule against such sentences.