Criminal
Aug. 8, 2002
Committee OKs State Version of 'Atkins' Ruling
SACRAMENTO - A new state measure that would implement the U.S. Supreme Court's decision banning execution of the mentally retarded cleared a key hurdle Tuesday and appears on track to pass the Legislature.
In its June ruling in Atkins v. Virginia, 2002 DJDAR 6937, the high court held that executing mentally retarded individuals is cruel and unusual punishment prohibited by the Eighth Amendment. But the justices left to the states the task of developing ways to enforce that restriction.
AB557, introduced by Assemblywoman Dion Aroner, D-Berkeley, lays out standards and procedures for courts to use in determining whether defendants are mentally retarded.
In particular, the bill adopts a standard definition of mentally retarded as "sub-average intelligence" combined with "adaptive behavior" problems that showed up before the age of 18.
It also would establish a two-tiered system by which judges, and then jurors, would have the opportunity to find a defendant was retarded.
However, the bill was called a "work in progress" Tuesday, as prosecutors and defense lawyers continue to negotiate over its provisions.
Proponents and critics of the measure agreed the bill is needed to ensure that Atkins is followed uniformly by the state courts instead of being interpreted in varied ways by judges grappling with the issue.
"[This bill] would provide uniform implementation of Atkins in California," said Nina Rivkind, a Boalt Hall law professor who testified in support of the measure. Rivkind is a death penalty appeals lawyer; her son is mentally retarded.
The bill passed the Senate Public Safety Committee Tuesday by a vote of 4-0.
Support came from the American Civil Liberties Union, the California Public Defenders Association and California Attorneys for Criminal Justice.
No groups opposed the bill, but the California District Attorneys Association and the office of Attorney General Bill Lockyer expressed concern that the measure was overly broad and would allow defendants to fake mental retardation in intelligence tests.
"We are very concerned about the malingering issues," said David Whitney, a death penalty expert with the San Bernardino district attorney's office, who testified Tuesday.
Whitney and CDAA Executive Director Lawrence Brown called for amendments to the bill that would provide for personality assessments in addition to IQ tests.
Whitney also asked that the determination about who is mentally retarded be decided solely by jurors and not judges, unless both sides agree.
Finally, prosecutors said they expect a plethora of appeals by death row inmates who claim they are mentally retarded.
Whitney said he would want those appeals handled by the original trial courts, "as opposed to some federal judge who wants to rule the Pledge of Allegiance unconstitutional."
Both sides agreed to work out the issues before the bill is heard next by the Senate Appropriations Committee.
Hudson Sangree
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