Death Watch
March 2002, Page 10

Execution Is Unconstitutional for Mentally Retarded
By Chris Adams

In Heck Van Tran v. Tennessee, 2001 WL 1538508, Tenn., Dec. 4, 2001, the Tennessee Supreme Court held that executing the mentally retarded is cruel and unusual punishment and is prohibited by the federal and state constitutions. The 3-2 decision, released in December, also held that executing a mentally retarded defendant “is grossly disproportionate and serves no valid penological purpose.” Heck Van Tran’s case is being remanded so that a full hearing may be held to determine if he is mentally retarded. Congratulations to NACDL Life Member Bill Massey and the rest of the defense team for their lifesaving and precedentsetting work.

Tennessee was already one of the 30 states that prohibit sentencing mentally retarded people to death (12 states do not have the death penalty, and 18 death penalty states exclude the mentally retarded from death-eligibility), enacting the law in 1990. However, the law did not apply retroactively, and Van Tran was sentenced to death in 1987.

This same issue of whether executing the mentally retarded “violates the evolving standards of decency that mark the progress of a maturing society” and is, therefore, cruel and unusual punishment will be addressed by the United States Supreme Court in Daryl Atkins v. Virginia, 00-8452. Oral arguments were to be held on February.

A p p r e n d i
In an exciting development that could impact almost 800 death sentences and sentencing schemes in nine states, the U.S. Supreme Court granted c e r t . in Timothy S. Ring v. Arizona, No. 01-488. At issue is whether the Arizona capital sentencing scheme, which requires judge sentencing in all capital cases, is legal in light of A p p r e n d i v. New Jersey, 530 U.S. 466 (2000). The Supreme Court will revisit Walton v. A r i z o n a , 497 U.S. 639 (1990), where they upheld the Arizona law. Jurors convicted Ring of murder. At the sentencing hearing, a judge found that two aggravating factors
were proven and sentenced Ring to death.

A p p r e n d i , a 5-to-4 decision, held that for a judge to sentence above the statuto-ry maximum an aggravator must be proven to jurors beyond a reasonable doubt. In A p p r e n d i, the court reversed and struck down the New Jersey law allowing a judge, not jurors, to determine motive by a preponderance of the evidence and to increase the sentence if the motive is found to be racial. The Arizona Supreme Court, recognizing that Apprendi m a y have overruled W a l t o n, indicates they feel bound to follow W a l t o n until the U.S. Supreme Court decides the issue.

Importantly, a four-vote plurality in Apprendi said the decision did not apply to capital sentencing, carving out an exception to preserve W a l t o n. Justice Clarence Thomas concurred with the result in Apprendi but, after acknowledging the tension between Apprendi a n d W a l t o n, concluded W a l t o n ’ s c o n t i n u e d viability is “an issue for another day.” 530 U.S. at 523. In dissent, Justice Sandra Day O’Connor called the reasoning for the exception “baffling,” and predicted the implications of the decision “could be c o l o s s a l . ”

What a justice views as “colossal,” I view as manna from heaven. If the Court extends Apprendi to capital sentencing and strikes down Arizona’s statute, the other judge-sentencing or judicial over-ride states — Alabama, Colorado, Delaware, Florida, Idaho, Indiana, Montana, and Nebraska — are also likely to have their sentencing schemes i n v a l i d a t e d .

Now courts around the country are wrestling with what Apprendi means to noncapital and capital cases. The U.S. Supreme Court has granted c e r t . in two other noncapital A p p r e n d i cases: Harris v. United States, No. 00-10666, just a fact that increases the mandatory minimum now be found by the jurors rather than the judge; and United States v. Cotton, No. 01–687, must a pre-A p p r e n d i c o n v i c t i o n be reversed where the factors that increased the federal sentence were not charged in the indictment. (See Grid & Bear It, p. 35, this issue.)

As to the states, in L a w r e n c e Borchardt Sr. v. Maryland, 786 A.2d 631, 2001 WL 1587834, (Dec. 13, 2001), Maryland’s highest court, by 4-to-3 vote, upheld a comprehensive and elaborate challenge to the capital sentencing statute. Maryland is a “weighing” state that requires the jurors to determine if aggravators outweigh mitigators by a preponderance of the evidence. The dissent reasoned that A p p r e n d i applies to capital sentencing in Maryland since the maximum sentence for capital murder is by statute life, A p p r e n d i requires jurors to find all facts beyond a reasonable doubt to go above a life sentence to a death sentence, and, therefore, the Maryland statute is unconstitutional since it does not require aggravators to outweigh mitigators beyond a reasonable doubt. Regardless of where you practice, this dissent is well reasoned and an important read for all of us preparing Apprendi c h a l l e n g e s .

Along similar lines, though not s p e c i fically an Apprendi case, the Kansas Supreme Court effectively set aside the death sentences for all four men on Kansas’ death row. In State v. Gary K l e y p a s, __P.3d__, 2001 WL 1658642, Dec. 28, 2001, the Kansas court found the death penalty statute as applied was unconstitutional because the statute required the jurors to return a death sentence if aggravators and mitigators weigh the same. Additionally, the Kansas Supreme Court found a pattern jury instruction improperly suggested that jurors must unanimously agree on the existence of a mitigating factor before it can be given weight.


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