RD54 - Atkins v. Virginia

Executive Summary:
[This report was modified by attaching the appendices on 10/13/2005.]

The United States Supreme Court, in Atkins v. Virginia, ruled that it is a violation of the Eighth Amendment (cruel and unusual punishment) to impose a death sentence on someone who is mentally retarded. This decision explicitly overturned the Court’s 1989 ruling on this issue, and stated that, “As was our approach … with regard to insanity, ‘we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” Consequently, the Virginia State Crime Commission formed a legislative Sub-Committee to examine this decision and draft legislation to bring Virginia’s laws into conformity with this new constitutional mandate. Based upon the Sub-Committee’s work, the Virginia State Crime Commission adopted the following recommendations and drafted model legislation to encompass them.

Recommendation 1

Amend § 18.2-10 of the Code of Virginia to specify that a person who is mentally retarded is not eligible for the death penalty.

Recommendation 2

Amend the Code of Virginia to require the determination of mental retardation should be made by the jury as part of sentencing.

Recommendation 3

Amend the Code of Virginia to require the defendant bear the burden of proving his/her mental retardation using a standard of preponderance of the evidence.

Recommendation 4

Amend the Code of Virginia to include a definition of mental retardation which states:

“Mentally retarded” means a disability, originating before the age of 18 years, characterized by:

(i) significantly sub-average intellectual functioning as expressed by performance on a standardized measure of intellectual functioning carried out in conformity with accepted professional practice, that is at least 2 standard deviations below the mean, considering the standard error of measurement for the specific instruments used and,

(ii) substantial limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.

Recommendation 5:

Modify the definition of mental retardation in § 37.1-1 to make the definition consistent throughout the Code of Virginia.