Stripling v. State

¶1dissenting in part.

¶2Today Georgia stands alone in severely inhibiting Eighth Amendment protections by applying the most stringent standard available in our system of justice — requiring a capital defendant to prove his or her mental retardation “beyond a reasonable doubt.” OCGA § 17-7-131 (c) (3). The execution of mentally retarded offenders was declared unconstitutional by the Supreme Court of the United States under Atkins v. Virginia, 536 U. S. 304, 318-321 (122 SC 2242, 153 LE2d 335) (2002) (justifying the categorical prohibition against the execution of mentally retarded offenders on the grounds that the death penalty will not further either the penal goal of retribution or deterrence and because “[mjentally retarded defendants in the aggregate face a special risk of wrongful execution”). In finding such executions constitute “cruel and unusual punishment,” the Court recognized a “national consensus” in favor of excluding mentally retarded offenders from the death penalty and expressly directed the States to “ develop [ ] appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id. at 317 (quoting Ford v. Wainwright, 477 U. S. 399, 416-417 (106 SC 2595, 91 LE2d 335) (1986)). Although the Supreme Court did not explicitly distinguish between “appropriate” and inappropriate means to identify mentally retarded offenders, the Court did justify the categorical exclusion in part on the inherent difficulties mentally retarded offenders face during a criminal trial. Atkins, supra,536 U. S. at 320-321 (“The risk [of an unwarranted death penalty] is enhanced [because] .. . [m]entally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.”). Georgia’s requirement that mental retardation be proven beyond a reasonable doubt is too rigorous a standard to sufficiently uphold this constitutional protection. In reality, the result of this standard is essentially an insurmountable hurdle for defendants. Its use in criminal trials ignores the justification at the heart of the Atkinsholding, as mentally retarded offenders may be sentenced to death — despite a vastly disproportionate amount of evidence in their favor — for reasons which may be beyond their control. As stated in the dissent of Head v. Hill, which I joined, “Georgia’s statute . . . do[es] not prohibit the [Sjtate from executing mentally retarded people. To the contrary, the State may still execute people who are in all probability mentally retarded[,] . . . more than likely mentally retarded[,] . . . *378[and] even . . . almost certainly mentally retarded.” Head v. Hill, 277 Ga. 255, 274 (587 SE2d 613) (2003) (4-3 decision). To actively promote this outcome amounts to an unfettered abuse of discretion in violation of the Constitution.

¶3Of the 30 states that impose the death penalty, 22 have adopted a preponderance of the evidence standard for proving mental retardation.3 Although Georgia led the nation in prohibiting the execution of mentally retarded offenders,4 it is now the only state that imposes a reasonable-doubt standard to prove mental retardation. To be an outlier in this context is not for the greater good. The Supreme Court of the United States voiced its concern regarding the use of a stringent standard of proof for medical and psychiatric factual determinations in Addington v. Texas, 441 U. S. 418, 430 (99 SC 1804, 60 LE2d 323) (1979) (“The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations.”). The AddingtonCourt distinguished between the reasonable-doubt standard’s application to “specific, knowable facts” and, in contrast, its application to psychiatric diagnoses, which are “to a large extent based on medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the diagnostician.” Id. Furthermore, the ability to make an accurate factual determination regarding mental retardation may be less concrete in consideration of the different levels of severity involved; a diagnosis of mental retardation can range from “mild” to “profound.” See Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). See also Atkins, supra,536 U. S. at 308-309 (describing the defendant as “mildly mentally retarded,” a conclusion based on interviews, school and court records, and IQ test results). Due to the subjective nature of diagnoses, “mild” mental retardation can be much more difficult to detect than “profound” mental retardation, yet both ends of the spectrum are to be shielded from capital punishment. Id. at 316 (protecting mentally retarded offenders from cruel and unusual punishment in alignment with the national legislative trend that “society views mentally retarded *379offenders as categorically less culpable than the average criminal”) (emphasis supplied). Setting a standard so high as to require proof beyond a reasonable doubt greatly increases the chance that any mentally retarded person will be executed — an outcome absolutely prohibited by the Eighth Amendment. And for what purpose? The social goal of retribution is not served because mentally retarded offenders are “less culpable” than those deserving of the death sentence, and likewise, the goal of deterrence is also not served because crimes carried out by mentally retarded offenders lack the requisite premeditation and deliberation to successfully preclude similar felonious acts. Id. at 319-320. Are we so focused on maximizing the absolute penalty of death that we would risk wrongfully executing someone with a clinically identified mental disability? To do so is an impermissible violation of our Constitution and a senseless assault against morality and human decency. Accordingly, I would join the majority of jurisdictions imposing the death penalty which require a defendant alleging a mental disability to prove his deficiency by a preponderance of the evidence. Therefore, I respectfully dissent to Division 1 of the majority opinion.