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Oral Arguments Before the Supreme Court of the United States

For the petitioner, Daryl Atkins: James W. Ellis, Esq., Albuquerque, New Mexico

For the respondent, Commonwealth of Virginia: Pamela A. Rumpz, Esq., Assistant Attorney General, Richmond, Virginia

11:27 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 00-8452, Daryl Renard Atkins v. Virginia. Mr. Ellis.

MR. ELLIS: Mr. Chief Justice, and may it please the Court. In 1989, this Court, surveying the already growing evidence from a variety of sources that the people of this country oppose the execution of individuals with mental retardation, observed that that growing sentiment might some day be manifested in legislation, particularly by the States, which this Court identified as the sort of evidence upon which it typically can rely in Eighth Amendment cases. The evidence is now clear that the American people in every region of the country have reached a consensus on that question. By every measurement and through a course of legislative enactments that is literally unprecedented in the field of capital punishment –

QUESTION: What is your definition of a consensus, Mr. Ellis?

MR. ELLIS: Mr. Chief Justice, the -- I would define consensus -- and this Court had discussed it in various terms in the cases, but I would distill from the cases in which the Court has described it that it is when the American people have reached a settled judgment based on a –

QUESTION: Yes, but I -- that's -- that's a perfectly sound phrase, but how do we go about figuring out when that occurs? I mean, how many States must be on a particular side? Does the population make any difference? How about those factors?

MR. ELLIS: Your Honor, there -- there has never been a suggestion by this Court that it differentiates among States with regard to size, and yet obviously logically if -- if a -- an -- if a collection of statutes only was found in the smallest of the States or the States of a single particular region, it would cut against the evidence that there was a consensus.

QUESTION: And -- and how many States out of the 50 do you need, do you think, for -- for a consensus?

MR. ELLIS: This Court has never suggested that there's a particular number in response to that. And when you look at the cases, both that have found a consensus and that have not, they vary.

QUESTION: Well, but you're saying there is a consensus. So, you must have some figure that you're submitting to us.

MR. ELLIS: I'm -- I'm not submitting on the basis of a figure, Your Honor. I'm suggesting that read in their entirety, the Court's cases talking about consensus seem closer to us to be a -- a totality of the evidence test but with the requirement that that evidence across the board have found expression unambiguously in statutes.

QUESTION: Should we not look at legislative enactments as the surest indicator of what the view of the-- the particular State is?

MR. ELLIS: Yes, Your Honor, I think that you should, and I took that to be the -- the teaching of this Court's opinion in the first Penry case.

QUESTION: And looking at that, where do we stand today? We have -- how many States have no death penalty at all? Is it 12?

MR. ELLIS: It's roughly 12.

QUESTION: Yes.

MR. ELLIS: It in part depends on how Vermont is counted, but -- but it –

QUESTION: And how many States have now enacted legislation providing that a retarded person may not suffer the death penalty?

MR. ELLIS: There are now 18 States as compared to the 2 that -- that were on the books or were about to go on the books, in the case of Maryland, when this Court decided the Penry case.

QUESTION: Of course, not -- not all of those 18 feel so strongly that it is unconstitutional to execute someone with reduced mental capacity that they are willing to apply that to people who've already been sentenced. How many of those 18 States have adopted that law only prospectively?

MR. ELLIS: A number of them. Again, there's a categorization –

QUESTION: I think there's quite a few.

MR. ELLIS: We don't have a precise number.

QUESTION: And that doesn't -- that doesn't bespeak such a -- such a intransigent view that this is unconstitutional. I mean, you say, well, you know, we won't do it in the future, but this person has already been tried and convicted, you know, go ahead. Does that suggest to you that -- that I think it's really unconstitutional or just that I think it's a good idea in the future not to do it?

MR. ELLIS: I guess I would characterize, Justice Scalia, the statutes not as having concluded that the practice was unconstitutional, but instead that it was unacceptable. But that still leaves your point.

QUESTION: Well, no, it doesn't. It just says it's not desirable. That's all the statute suggests, it seems to me. And I -- I thought when you were talking about a consensus, you're talking about a consensus that something is so -- so terrible that it should not be permitted. And these States are permitting it. They're just not going to do it in the future.

MR. ELLIS: I -- I would respectfully suggest that they have not reached that judgment. In the bulk of the States that have prospective only language, that is to say, some kind of bar -- and it varies among the statutes to looking backward to cases already decided. In the bulk of those cases, it was clear that there was no one with mental retardation currently under sentence of death in that State. And so, passing a statute that would encompass people on death row in that State would have been unnecessary in the view of legislators and might have –

QUESTION: How do we know that? How do we know that?

MR. ELLIS: The -- the discussion in the – in State legislatures, there isn't legislative history in quite the way there is in Congress.

QUESTION: Pity.

(Laughter.)

MR. ELLIS: I was going to say this must be a source of substantial disappointment.

(Laughter.)

MR. ELLIS: But -- but what -- what evidence we have comes from recordings of the debates and, in particular, journalistic accounts from -- from those debates. It -- it is clear from those that the – that the concern of treating differently people who have been sentenced to death previously and those who would face a capital trial prospectively was not a principal concern. And I'm trying to come up with a State in which it was known that there was someone who had mental retardation on death row. The only State in which I might have reached that conclusion, there had already been a judgment by another court that the individual involved -- it was in Arkansas -- didn't have mental retardation.

QUESTION: Mr. Ellis, would you -- would you agree -- you know, I'm not -- assuming I agree that --that when there is a -- a new consensus that the Constitution means something it didn't mean before the Constitution means that new thing, assuming I agree with that, you -- you must agree that -- that we have to be very careful about finding new consensuses, don't you? Because we can't go back.

I mean, if we find a consensus here that it is indeed unconstitutional to execute the mentally retarded and then it turns out that there are a lot of problems, that indeed in every case, every capital case, there's going to be a claim of mental retardation and people come to believe that in many of these cases you get expert witnesses -- you can easily get them on -- on both sides-- people become dissatisfied with that. We won't be able to go back, will we? Because the evidence of the consensus is supposed to be legislation, and once we've decided that you cannot legislate the execution of the mentally retarded, there can't be any legislation that enables us to go back. So, we better be very careful about the national consensus before we come to such a judgment, don't you think?

MR. ELLIS: I would agree with you, Justice Scalia, that as the Court has said in various ways in several of the cases that the -- that the proponents of the view that there is a consensus bear an extraordinarily heavy burden of demonstration. But the particular concerns that you raise about the possibility that sentiment might especially in the -- in the presence of experience enacting a statute swing the other way, while theoretically possible, is not borne out by the experience in the 18 States, but in particular in the States that enacted some years ago.

QUESTION: Well, but Justice Scalia's basic premise that it's a one-way ratchet is correct. Is it not?

MR. ELLIS: This Court has not had – had occasion to address that in particular. The closest, I suppose, that it has come is the Court confronting the ambiguity with regard to the execution of individuals below the age of 16 and -- and the presumption that the Court reached in the face of that ambiguity.

QUESTION: Well, Mr. Ellis, logically it has to be a one-way ratchet. Logically it has to be because a consensus cannot be manifested. States cannot constitutionally pass any laws allowing the execution of the mentally retarded once -- once we agree with you that it's unconstitutional. That is the end of it. We will never be able to go back because there will never be any legislation that can reflect a changed consensus.

QUESTION: Of course, isn't it true that every new constitutional holding is a one-way ratchet in exactly the same way?

MR. ELLIS: Not only in the area of the Eighth Amendment but in others as well. We could all imagine ways in which dissatisfaction with the ruling might manifest itself—

QUESTION: Mr. Ellis –

MR. ELLIS: Yes.

QUESTION: -- I guess there's no uniform determination of when someone should be regarded as mentally retarded. The standards probably vary somewhat from State to State, do they not?

MR. ELLIS: Justice O'Connor, they vary remarkably little. The definitions are not framed inexactly identical forms because often States have adopted the definition that they employ for disability benefits purposes or guardianship purposes or commitment.

QUESTION: I guess my point is even if this Court were to say that it's unconstitutional to execute a person who's mentally retarded, presumably it would still be open to the State to determine whether that individual is mentally retarded under the State's definition, or is there some Federal definition you're asking us to employ?

MR. ELLIS: It seems to me that the States would be free to define mental retardation -- and, as I say, many use the definition they already have, that their clinicians are accustomed to -- so long as the definition they chose carried with it the core principles of the definition of mental retardation that this Court discussed in Penry, that is to say, a measured intelligence in the bottom 2 percent -- in the bottom 2-and-a-half percent of the population or 2 standard deviations below the mean, plus an impact on the real world functioning of the individual and as –

QUESTION: Well, this -- this actually links up to the consensus problem if you take -- I don't think a poll is relevant, but assuming you took a poll and since you execute the retarded, I think most people would have in -- in mind an image of mental retardation which doesn't reflect the sophistication of the DSM which talks about mild retardation and defines somebody who's mildly retarded as educable with an IQ of maybe as high as – in that range of -- of 70 with -- with some -- with some room for statistical error. Do the States have some leeway in defining retardation that's any different than what's in the DSM?

MR. ELLIS: With regard to -- with regard to details, as I suggested a moment ago, there -- there is room for some difference, but with regard to the core principles, which I take to be at the center of -- of your question, are we describing the same group of people –

QUESTION: Yes.

MR. ELLIS: -- what we've discovered in the States is that they've all come to essentially the same conclusion, which is all the people who fall within the AAMR or DSM-IV-TR definition are the people that they chose to protect.

And going to your earlier point about what people know about the level of functioning of individuals with mental retardation -- yes, Your Honor -- there --other than parents -- parents I'd put aside -- there is, I think, no group in this country more aware of the variety among people with mental retardation and the levels off unctioning at each level than State legislators.

QUESTION: This -- this goes to the -- where is the burden of proof in a case like -- supposing your view is adopted, the State charges capital murder. Is the burden of proof on the defendant to show that he's retarded?

MR. ELLIS: Yes, Your Honor. Every State that has enacted a statute has placed the burden on the defendant, although they have done it in somewhat different ways.

QUESTION: Mr. Ellis, what about this very case? There was some confusion, but the Virginia Supreme Court seemed to doubt that this person would qualify as mentally retarded. If -- if you would prevail, wouldn't there have to be a remand on that question?

MR. ELLIS: Obviously, in our -- we would not be totally disappointed if this Court were to resolve that question, but the -- the likelihood and prospect of a remand obviously would be an appropriate response so that the Virginia courts who did not, in this case, have before them mental retardation as a legal question that was going to decide anything -- it was simply an observation in the course of making –

QUESTION: Well, what precisely did the Virginia Supreme Court say about this defendant and –

MR. ELLIS: I -- I think maybe the – the Virginia Supreme Court's decision on that can be best characterized as expressing concern as to whether or not the individual -- in this case Mr. Atkins -- had mental retardation because of the testimony of Dr. Samenow that-- that suggested that there had not been a full demonstration of the impact of his impairment in his life, the second prong of the definition –

QUESTION: Can you tell me –

QUESTION: Mr. Ellis, apart from the consensus argument and these details, what is the real reason behind your position? What's wrong with executing the mentally retarded?

MR. ELLIS: In our view, Your Honor, the people with mental retardation who have both that intellectual functioning as the core and it has manifested itself in their life throughout their life -- those individuals in our view lack the culpability or blame worthiness because their understanding of their actions, their understanding of the context in which their actions took place –

QUESTION: Well, why are they subject to criminal liability at all then?

MR. ELLIS: They are subject to criminal liability because it isn't our contention that they, for example, can't tell -- to use the -- the language in – in Virginia's defense of insanity, that they can't tell right from wrong. What we're suggesting -- so, we're not suggesting they can't be punished. What -- what we're --what we are contending is that, though they can be punished, the death penalty is different, and it is reserved for those whose understanding is sufficiently clear that the penalty of death can be appropriate.

QUESTION: So, nothing wrong with putting a retarded person -- we know that there's a problem with definition, but -- in -- in jail for life, solitary. He can exercise in a cage.

MR. ELLIS: Nothing in the ruling that we seek here would preclude the State from imposing the most serious penalty it has other than the penalty of death. Most States do. A number of the States that have passed statutes have explicitly provided in those statutes that an individual exempted from the death penalty by the statute will be subjected to -- and then it explicitly says, in some cases, life imprisonment without possibility of parole, or whatever the heaviest penalty.

QUESTION: Should the test be the same as for executing someone with a mental illness? We -- we have dealt with that, and -- and with the level of comprehension that someone must have in order to be eligible for the death penalty who has mental illness. Should the test be the same?

MR. ELLIS: Your Honor, I believe you're discussing the Ford issue with regard to competence to be executed? I read the Ford case as suggesting that whether the individual had mental illness or mental retardation ,if -- if that individual lacked the understanding as execution became imminent, that they -- that the State would be precluded from executing. This –

QUESTION: So, is that test not adequate here in your view?

MR. ELLIS: That test, it seems to me, is not adequate for several reasons. One is that the Ford holding focuses on a defendant and -- and his mental state late in the process, as -- as execution is impending. The mental retardation question, as addressed by the States in-- in the years since Penry, focuses on the individual's mental functioning at the time of the crime.

QUESTION: What -- what about our -- what about our mental illness cases dealing with the time of the crime? Why aren't they sufficient to indeed excuse somebody who couldn't help themselves? You're saying these people can help themselves. They did know the difference from right to wrong, but what? They're --they're slower than others and therefore shouldn't be executed.

MR. ELLIS: Yes. Their -- that their understanding was, of necessity, limited by their mental functioning.

QUESTION: Their understanding -- I mean, they have to have known that what they were doing is wrong.

MR. ELLIS: In order to be convicted in any of these States, yes.

QUESTION: So, isn't that the only thing that bears upon culpability?

MR. ELLIS: It seems to me, Your Honor, that it is not because -- because under our system of capital punishment, as it has been shaped by the decisions by this Court, we don't say that the death penalty is available for everyone who can be punished. The Court, through a variety of mechanisms, including the mitigation system, has said that among those who can be punished, some can be punished by death and others not. In a number of those cases, this Court has reached categorical rules, which is what we seek here.

QUESTION: Yes, but -- but those rules were based upon the fact that some people are not as culpable. Their crime was not as heinous and so forth. You have to narrow the category to those people who are really morally reprehensible. I do not see the necessary connection between --between intelligence and moral reprehensibility unless you truly think that -- I guess the -- I guess the result of your argument is that there -- that there is more crime among -- among the mentally retarded because they don't really understand the consequences of what they're doing. Is that a demonstrable proposition? I don't think it is.

MR. ELLIS: It is not, and I think it's untrue.

QUESTION: Yes, I think it's totally untrue. So, I don't –

MR. ELLIS: So, what we're saying in – in response to -- to your question, what we are saying is that a person who commits an act -- who has mental retardation, who commits an act which is subject to punishment, does so within the scope of the limitations imposed by his disability. And that may allow him to forma criminal intent sufficient to satisfy the criminal law for punishment in general, but in our view and now the view of -- of the people of the States manifested in these statutes and of the people manifested in the Congress, those individuals who can be punished, as individuals under the age of 16 can be punished, cannot be punished by the penalty of death because, as this Court frequently reminds, death is different, a different calculus, a different set of concern. The judgment by the people as expressed in their legislatures has been these are individuals for whom we do not want the death penalty used. It's not –

QUESTION: And what is -- what is the reason? I mean, you -- you -- in responding to Justice Scalia's question, you -- you point out, well, these people pass the -- the test of -- of comprehension, which is a condition of culpability for execution. What test don't they pass? What is the reason for this emerging consensus?

MR. ELLIS: The principal reason -- and – and it has changed a little bit as -- as the -- as the process has gone on. The original and continuing principal reason is that people, as expressed through the legislature, have reached a judgment that someone whose intellect is at this level and who has grown up with that limitation on their ability to learn -- because age of onset is part of the definition of mental retardation as well -- are not individuals for whom death is an appropriate punishment.

QUESTION: No. I realize that that's the judgment they're reaching, and you want us to recognize that judgment as now having constitutional significance. What I want to know is why are they reaching that judgment? What is the reason that elevates that judgment to one of constitutional significance? I guess the -- the converse of my question is we're not here simply to add up numbers and say, oh, when it gets to 37, the result is different. You're -- you're asking us to make a different kind of -- of -- draw a different kind of conclusion. And what I want to know is what is it behind the judgment of these emerging States as a reason that should recommend itself to us?

MR. ELLIS: And -- and as I said, the principal focus is on the understanding of people of what the limitations imposed on people with mental retardation are and how it affects their comprehension –

QUESTION: They know it's wrong but they don't appreciate how wrong it is?

MR. ELLIS: Yes.

QUESTION: I mean, is that the idea?

MR. ELLIS: It is -- it is that their understanding of the wrongness of their action may be incomplete and in a sense immature in the same way or in a parallel way at least –

QUESTION: Mr. Ellis, I thought that you had said something different in your brief, and it was that people in this class have diminished capacity when it comes to the life or death decision. I thought you said that they will be smiling in the -- and the jury will say, well, how inappropriate. They're not expressing any remorse. That they will not be able to communicate as effectively with their -- their counsel. That it's --that it's the image of this person when the life/death decision is made that they give false clues to the trier, to the jury, and that will disable counsel from representing such a person on that life/death decision. You haven't said anything like that in your oral argument.

MR. ELLIS: And -- and that was the point I was adverting -- was adverting to a moment ago, that the principal reason is, as I've suggested, the shared understanding of the diminished culpability of people with mental retardation. But increasingly, especially in the last 3 or 4years, there has been a second and secondary reason for enactment of the statutes which is a growing concern that individuals with mental retardation facing capital charges present a particularly and uncomfortably large possibility of wrongful conviction and thus wrongful execution. The-- the cases in both Virginia and in Illinois over the last few years have made what I acknowledge is a secondary argument but one which comes up in legislative discussions with increasing frequency, that -- that in just the way you were describing, that the process of adjudicating in a capital case someone who has mental retardation and who's understanding that -- is that limited may, through a variety of mechanisms, increase the likelihood of wrongful conviction and thus unjust execution.

QUESTION: Counsel is not able to bring that to the jury's attention –

MR. ELLIS: Counsel –

QUESTION: -- and say, ladies and gentlemen of the jury -- in fact, he can bring mental retardation to the attention of the jury as a basis for the -- for the jury's deciding not to execute the person, can he not?

MR. ELLIS: He clearly can.

QUESTION: There's no question that in all States he can do that.

MR. ELLIS: That's right.

QUESTION: So, you're saying the jury is not constitutionally even allowed to -- to be given the option. And counsel can say to the jury, during this trial, you -- you may see my client smiling inappropriate at some points. You should know that this is -- this is because he's mentally retarded. He really doesn't fully comprehend what is going on here and I ask you not to take his -- his reactions into account. It seems to me that would just reaffirm the -- the more he'd smile, the more a-- the jury would say, boy, this -- this person really shouldn't be executed. He's not playing with a full deck, or whatever.

MR. ELLIS: There may well be cases in which that would be effective in guarding against that concern, but that also backs into the problem this Court observed in Penry, which is in a case-by-case determination, particularly in cases in which juries are making the decision, the mental retardation may in fact be a two-edged sword, that the -- that the juror, in evaluating whether or not to impose the penalty of death, may see mental retardation not only as a mitigating or potentially mitigating factor, but it may also see it as tied to prospective dangerousness. That issue is -- is present everywhere it seems to me. It is particularly present in –

QUESTION: Isn't it present in all cases of mental illness as well?

MR. ELLIS: Is -- is the difficulty of case-by-case? Yes. It –

QUESTION: Your arguments seem to be equally applicable to those who are mentally ill. It's a two-edged sword in effect.

MR. ELLIS: It is but unlike mental -- in the case of the mental illness, unlike mental retardation, there has not been a manifestation of a national consensus, either in legislation or elsewhere, that suggests the American people have rejected the notion.

QUESTION: But the reasons you put forward to us seem to me remarkably the same.

MR. ELLIS: The -- the reasons that I've offered –

QUESTION: Am I right?

MR. ELLIS: -- would apply to other defendants who don't have mental retardation.

QUESTION: Right.

MR. ELLIS: But -- but they are not so closely tied to the defining characteristics of a class as they are here to have produced that consensus.

QUESTION: All right. So, come back and tell us how we know when there's a consensus.

MR. ELLIS: Your Honor, it seems to me that I read this Court's cases as saying that they will – that the Court will look to -- that in prospective cases you will look to a variety of forms of evidence, but that any proffer of evidence of a consensus which does not have substantial and in one case a discussion of recent formulation of that consensus into enactments by the legislature will be viewed with skepticism or impact –

QUESTION: How many States still allow the execution of retarded?

MR. ELLIS: Theoretically there -- there could be 20. There -- there –

QUESTION: In how many of those States have there been executions of retarded people since Penry the last 20 years? I count two.

MR. ELLIS: We -- we cannot be sure but it is roughly two or three, yes.

QUESTION: So, you -- you have less -- less than half of the States that have capital punishment make an exception for the mentally retarded, and you say that that constitutes a consensus. Less than half.

MR. ELLIS: Not by itself.

QUESTION: I can see the argument that there's a consensus on the other side since the other side seems to be in the majority, but you say less than half represents a consensus.

MR. ELLIS: I'm not sure that -- that we could conclude, for example, that people in the States that don't have the death penalty approve its imposition or if they adopted a death penalty would include within the scope of this –

QUESTION: But we're looking to legislation, and-- and we –

QUESTION: But you're saying 48 constituted a consensus.

MR. ELLIS: Well, that -- that is another way of counting. And I don't -- I don't want to slip into what an amicus on the other side referred to as the counting of noses. This is a serious business, as this Court has recognized, and the fact that the Court has not treated large States differently from small suggests that the Court is looking at these enactments not only to count up the jurisdictions that have adopted it, but also to see whether the process by which they have been enacted is revealing of a settled moral judgment, in this case amoral judgment of revulsion –

QUESTION: Settled. But we also said in Penry that -- you know, the argument was made to us that there was an emerging consensus, and we rejected that. We said an emerging consensus is not enough. There has to be a consensus.

MR. ELLIS: And our position, on the basis of what has happened in the 13 years since Penry, is that the consensus that was then emerging is now manifest, both in the legislation and in every other indicator we have of public sentiment. I'll reserve –

QUESTION: You're not talking about polls if you're talking about public sentiment, are you?

MR. ELLIS: It seems to me, Your Honor, that --that the polling information, which was quite scanty then and is now quite full, as suggested in the AAMR amicus brief in McCarver, is part of the picture.

QUESTION: Well, wouldn't you expect if people feel that way, it would -- it would be manifested in legislation?

MR. ELLIS: And increasingly it is.

QUESTION: Yes, but are you saying that somehow polls are to be considered in addition to legislation?

MR. ELLIS: Polls, it seems to me, Your Honor, are a way of -- of viewing the legislation, of seeing whether or not the consensus the legislation appears to reveal is in fact –

QUESTION: And I take it polls should be admitted in -- if we're going to talk about polls as contributing to this discussion, they should be admitted in the trial court and subject to examination by the other side. Are any -- have any of yours done that?

MR. ELLIS: I -- I don't believe -- I -- I'm trying to think of a case in which polling has played a part in the trial court, and -- and I believe it has --none comes to mind. None comes to mind.

I'd like to reserve the rest of my time.

QUESTION: Very well.

Ms. Rumpz. Am I pronouncing your name correctly?

MS. RUMPZ: Yes.

Thank you, Mr. Chief Justice, and may it please the Court. What is at stake here is this Court's long-established jurisprudence of individualized sentencing in matters of the death penalty. Penry would have – not Penry. I'm sorry. Atkins would have this Court removed from individualized sentencing one whole group of people based upon one mere factor, and that is their alleged mental retardation.

QUESTION: Well, the position of the Commonwealth of Virginia is that you can execute the retarded. Is that correct?

MS. RUMPZ: Yes, the retarded individuals who, like Atkins, were found competent at the time of the crime, competent at the time of -- to assist his lawyers, who were found guilty of a premeditated, deliberated, and calculated murder, and who –

QUESTION: So, any person who has criminal responsibility can be executed no matter how retarded they are. That's your position.

MS. RUMPZ: That is the position of the Commonwealth of Virginia, yes. And they -- of course, the jury has to be instructed, in -- in keeping with Penry I, about the mitigating value of the defendant's mental retardation.

QUESTION: You -- you would not say no matter how retarded. I mean, presumably there's some point at which the retardation is so severe that the person does not comprehend what he's doing.

MS. RUMPZ: Exactly, Your Honor, but if –

QUESTION: But short of that, you're saying –

MS. RUMPZ: But short of that, exactly. But the –

QUESTION: Then –

MS. RUMPZ: -- the DSM-TR -- IV-TR recognizes four different categories of mental retardation. As this Court noted in Penry, the profoundly or severely retarded are not likely to face the prospect of punishment, and they're not really who we're arguing about here today. We're arguing –

QUESTION: Well, why don't we say the same thing then about -- about children, about young people? So long as the State can prove the premeditation, the deliberation, the -- the other requirements of – of mental culpability, let them be executed.

MS. RUMPZ: But this Court has said that about16-year-olds in Stanford.

QUESTION: Well, let's take 5-year-olds. Would-- would you argue that 5-year-olds should be executed if-- if they have deliberated on -- on the act and – and otherwise the State can prove the -- the mental element?

MS. RUMPZ: I think that that's -- that's unlikely to happen. But if -- if a person can deliberate and premeditate and if a person can commit a brutal, calculated, premeditated murder, and if a person is found competent at the time he commits that murder and competent to assist his lawyers at the time of the trial, then we're not looking at somebody whose culpability is in any way less than yours or mine.

QUESTION: Do you believe there is -- there is any role at all in -- in the -- in Eighth Amendment jurisprudence, death penalty jurisprudence I guess, for --for general rules to the effect that, yes, there may in some instances, let's say, of retardation be -- be proof of -- that would at least be enough to get to a jury on premeditation and -- and deliberation and so on, but that the very fact of -- of retardation makes it unlikely inmost cases that this can be proven and makes the evidence at least highly debatable, even in those cases that get to a jury? And therefore, the sensible thing to do in order to avoid a high risk either of wrong conviction or in the case of -- of the penalty phase a high risk of – of unsound judgments imposing the death penalty, there ought to be a cutoff point of some sort. There ought to be a cutoff of the high risk cases from the general rules of proof. Do you -- do you take the position that there is no place in -- in death penalty jurisprudence for that kind of a -- we'll say a high risk cutoff rule?

MS. RUMPZ: A high risk cutoff rule of? I'm sorry. I didn't follow exactly what you were saying.

QUESTION: Well, I'm -- I'm assuming that, sure, there are cases of borderline retardation and so on in which the -- there would be enough evidence to get to a jury on the various mental elements for a -- for a capital sentencing. I'm also assuming that in cases of retardation, including retardation near the borderline, that that evidence is -- is highly debatable in most cases, and it is sufficiently uncertain, it is sufficiently debatable that there's a high risk that a jury is going to come to the wrong conclusion. It's going to say, oh, yes, this person really is the worst of the worst and sentence him in -- in a case in which that really is not so. And the reason for having a rule saying, we're going to have a -- a retardation cutoff -- a person who is retarded will be ineligible for the death penalty -- is to avoid those high risk cases and avoid the risk, in effect, of wrong imposition of the death penalty. That's why we would have such a rule, quite apart from moral judgments or anything else. I'm just talking about this practical risk judgment. And my question to you is, do you say that our death penalty jurisprudence should have no place for such a -- a risk assessment rule?

MS. RUMPZ: That's what individualized sentencing is. That is the risk assessment rule. That's what juries –

QUESTION: Well, it's -- its very clear that within the category of those who ought to be subject to the death penalty, there should be individual assessment. I'm asking whether you believe that in risky cases there ought to be rules to eliminate the risk. And I take it your answer is yes, but I don't want to say that if – if I'm being unfair to -- to your position here.

MS. RUMPZ: You know, I don't want to play dumb here, Justice Souter, but I'm afraid I'm not understanding what -- what you're asking me. I think that the risk assessments that you're talking about play into the – the concepts of individualized sentencing under the Eighth Amendment. The juries make those assessments. The juries determine whether someone is sufficiently culpable for the death penalty and they determine whether his mental retardation is a mitigating factor sufficient to outweigh giving the -- the defendant the death penalty.

QUESTION: Let's assume, because I'd like to get the answer to Justice Souter's question myself -- let's assume. You may disagree with it.

MS. RUMPZ: Okay.

QUESTION: Let's assume that there's a higher risk of inaccurate determinations by a jury, both for guilt and -- and penalty, when the person is retarded. Let's assume that. You may disagree with that, but let's assume it.

MS. RUMPZ: Okay, I'll assume that.

QUESTION: Justice -- Justice Souter asked the question, if there is that risk, is there a place in our Eighth Amendment jurisprudence for us to take account of that risk and draw some lines?

MS. RUMPZ: No. I -- I think -- if I understand what you're asking is -- is -- does the Eighth Amendment provide exemption from the death penalty to a class of persons who may be at a greater risk for an inappropriate death sentence? I don't think the Eighth Amendment plays into -- that's what the Eighth Amendment sets up individualized consideration and individualized sentencing for.

QUESTION: Mr. Rumpz, I -- it's a hard question to answer because I guess you -- you would need a definition of what constitutes an inappropriate or improper death penalty, and we haven't -- we haven't established any guidelines. We have said you must leave it to the jury to take into account all mitigating factors. Whatever the jury considers mitigating it may allow. In such a scheme, I don't know -- it is meaningless to talk about an inappropriate death – death sentence. There are no criteria. It's up to the jury. Whatever the jury considers mitigating it may allow. And –

MS. RUMPZ: Exactly.

QUESTION: I guess you're talking –

QUESTION: There -- there is not a proper or an improper death -- death sentence.

QUESTION: I guess you're talking about a class of -- you said this class of people -- and I'm not sure you meant that -- is no less culpable than you or me. But I thought the class of people we're talking about is a class of people that might simply barely understand what's going on. Barely. So, they know right from wrong, but they can't understand anything complicated. They have a hard time functioning. Their emotions are no more different than yours nor mine, than anybody's. So, they feel things strongly. But they won't take in the nature of the punishment, in all likelihood, and they're quite capable of following the leader, whoever is the leader nearby. And therefore, this class of people is different enough than you, than me, that we wouldn't say they are similarly culpable. And I guess in 48 of the 50 States, people have reached that conclusion. All right. Now -- now, that's I take this case. And I say 48 because I want you to disagree with me so we can then explore that.

(Laughter.)

QUESTION: But I thought that that was – I mean, there's an argument –

MS. RUMPZ: I'll be –

QUESTION: But I want you to address, A, I've tried to make a point maybe they are not so culpable as you or me. And second, an awful lot of people in the United States seem to agree with that. In fact, I -- now, those are the two things I want you to address.

MS. RUMPZ: Well, first of all, I think this case is a perfect illustration of the first point, the first point being that -- that they are. If you are found competent to stand trial and competent to assist your lawyers, you are like you and me. Daryl Atkins had a perfect understanding of the system, knew all about mitigation evidence, recommended witnesses to testify in mitigation, was competent to assist his lawyers, said he wanted his retardation put in front of the jury if it helped him. He had no deficits in understanding the system. Moving on to the second point, 18 of the 38 death penalty States have formed or have enacted some sort-- excuse me -- some sort of laws prohibiting execution of the mentally retarded. The Commonwealth's position, however, is that that 18 is -- is not written in stone because many of the statutes don't provide for retroactive application. So, you're looking –

QUESTION: There was a time -- there was a time –

QUESTION: The -- the question I have on that is you want to say less than 18.

MS. RUMPZ: I -- I sure do.

QUESTION: I want to know why not far more than18, and my reason for that is that in -- of the remaining 20 -- there are two States that have executed retarded people, and they account, I gather, for about 7 percent of the population. But in the remaining States that haven't passed this law yet, why would someone feel a need to pass it? I noticed, which I copied here, that the Governor of Texas said, I am -- I am going to veto this law because we do not execute mentally retarded murderers today. Now -- now, he might have been wrong about that in Texas. I don't know. But regardless, why would a State that never even has executions, but they have it on the books, feel constrained to pass a law?

MS. RUMPZ: Well, I -- I think that -- that the fact that 18 States have done so in the last 13 years --it doesn't mean that that –

QUESTION: Presumably those States were executing a lot of retarded people, and that's why the laws were passed.

MS. RUMPZ: Well, that's an equally good assumption.

QUESTION: Well, I assume -- an even simpler assumption is that they were executing people. Let me ask you a kind of a -- a specific example of Justice Breyer's question. In -- in your calculation, how do you account for the -- for a State like the one that I come from that has not executed somebody in over 60 years? Do you say, well, that's a State that apparently approves of executing the retarded? Do you say that's a State that shouldn't be counted at all? How do you account for that in your calculus?

MS. RUMPZ: I don't know what State you come from, first of all.

(Laughter.)

QUESTION: I'm from -- I'm from New Hampshire, and the last execution was in '38 or '39.

MS. RUMPZ: I guess my answer to that is that this Court has said that societal consensuses are formed, and when you're looking to see whether there is a societal consensus, you look to the statutes that the -- that the legislators have passed.

QUESTION: But that's what we're asking about, and Justice Breyer's question, as well as Justice Souter's, is -- I think must recognize the premise that one of the great facts of life in American Government is legislative inertia. Legislatures don't act unless they're prompted to do so. And a legislature is not going to just sit down and say, oh, I think it's a good time for us to pass a -- a bill on -- against executing the mentally retarded if there's no such person on death row. Legislatures just don't operate that way.

MS. RUMPZ: Or there's no such person – person on death row who was not competent to -- to commit his crime, was not competent at the time of his trial, was not competent to assist his lawyers. There's a difference there.

QUESTION: What -- what do we know, Ms. Rumpz, about the situation in the States, the 18 States which have prohibited the execution of the retarded? Had they just gone through a tremendous number of retarded executions?

MS. RUMPZ: I suspect not.

QUESTION: Do we -- is there any -- anything in the briefs that indicates why these States passed the legislation that they did?

MS. RUMPZ: No, there's not. And -- and I can speculate that it's a pretty pro -- anti-death penalty machine out there working, but –

QUESTION: Justice Breyer says only two mentally retarded people have been executed in -- in the last I don't know what. So, that couldn't explain these 18 States. So, maybe legislatures do enact laws because they think they're good laws to enact, and maybe that's why the18 did it.

QUESTION: No, no. I said two in -- two, but it may be a few more. That's what I'm not -- in two States in those States that haven't enacted the laws. Of course, the ones that have enacted the laws don't have the executions, and some of them did execute mentally retarded people before they passed the law.

MS. RUMPZ: Well, the Federal Death Penalty Information Center, if you get on their web site, says that since Penry was decided in 1989, 25 mentally retarded –

QUESTION: We've gone through those and – and tried bit by bit, and most of them are in these States and then some of them are -- have IQ's of 70 or over. And I would say in that -- they're -- they're erring on the side of counting mentally retarded. But if you draw the line at 70, look below it, you get to the numbers I had. I'm looking to you for giving me the good numbers and -- and the lawyers. That's why I -- I figured it out it was two States, but I'm not certain.

MS. RUMPZ: I -- I think just because two States in -- in -- since 1989 have executed mentally retarded offenders doesn't mean that there aren't mentally retarded offenders in the pipeline waiting to be -- to become executed or waiting to go through their appellate processor -- or coming up to trial. You know and I know that this is a very slow process. These cases drag on for years and years, decades. And -- and when you look to a number like that, you necessarily have to figure in all –

QUESTION: Leave it at this, that since Penry --Penry. There's no consensus. Since Penry, 18 States have said by law, no. And in the remaining States, we're pretty sure that two of them, accounting for about 7 percent of the population, have executed mentally retarded people and maybe double that if you want, triple it. Say there are 14 percent, 20 percent. Still, isn't that a consensus? Why not?

MS. RUMPZ: Well, I -- I guess I'd go back to what Justice Scalia said in one of his opinions is that that may very well just be that juries and prosecutors and society believes that the death penalty ought to be imposed on the mentally retarded less often.

QUESTION: Ms. Rumpz, if we stayed just with the18 plus the 12 that don't have the death penalty, then we get up to what?

MS. RUMPZ: 30.

QUESTION: Three-fifths of all the States. We get enough to, for example, block a filibuster in the Senate. That's a super majority. Why isn't that – why doesn't that suffice?

MS. RUMPZ: For two reasons. First of all, I don't think you can count 18 as 18 because in some of those States, you can execute the mentally retarded.

QUESTION: Now, there was a time in this Court-- it wasn't all that long ago -- when this Court was making prospective declarations of unconstitutionality, this case and all future cases, not past cases. Maybe the States that haven't made it retroactive haven't gotten up to speed on that once it's -- once we make a declaration of unconstitutionality, it's retrospective.

MS. RUMPZ: Even given that, New York has in its statute specifically that people who commit murders, while in prison, can be executed even if they're mentally retarded. So, you have to take New York from the list. Mentally retarded offenders can be executed in New York. Second of all, I don't think you can add the 12 non-death penalty States and -- to -- to a number of death penalty States to try to form a societal consensus.

QUESTION: Why not?

MS. RUMPZ: Well, because they may have some bearing on whether there's a consensus against the death penalty altogether.

QUESTION: Right, and it includes that. I can't imagine that you would say you couldn't count those States.

MS. RUMPZ: Well, Wisconsin tomorrow may decide to adopt a death penalty statute, and if they do, they'll have to affirmatively legislate a number of things. They'll have to pick an age where it can be imposed. They'll have to decide whether they're weighing or non-weighing. They'll have to decide whether they're going to have a provision to execute the mentally retarded. All of those things have to be considered by the State legislature, and I don't think we can presume –

QUESTION: Let me try this another way. Do you-- do you concede that if there is a consensus, whatever that means, then this Court should make the determination that we're asked to make here?

MS. RUMPZ: No.

QUESTION: You don't agree that if there's a consensus, then the Eighth Amendment would bar it.

MS. RUMPZ: No. And -- and I think that –

QUESTION: This Court said that might, indeed, be the law in Penry, but you say we were wrong there.

MS. RUMPZ: No. I -- I refer the Court to Spaziano v. Florida where the -- where the Court said you don't just nose count. You -- you have to look at the whole -- the whole picture, and just because sister States decide to do one thing or not do other things doesn't necessarily bind the -- the -- this Court and the other States.

QUESTION: But you do not even accept the notion that if there is a consensus and we find there is, that that answers the question. I take it you do not accept that.

MS. RUMPZ: I think that Spaziano says different.

QUESTION: Well, do you accept the view that there is in fact an evolutionary element in Eighth Amendment jurisprudence, that in fact it does change as --as societal notions of reasonableness in terms of cruelty change?

MS. RUMPZ: Well, this Court has said that there-- that there is.

QUESTION: That's the answer. You don't have to agree with it. The Court said that. That's the position I'm in too.

(Laughter.)

QUESTION: So, you -- you accept that as the framework that we are supposed to be working in. You submit your case on the basis of that framework.

MS. RUMPZ: That's what -- that's what this Court said in Penry.

QUESTION: May I ask another question on a little different line? I think there's been sort of a consensus in the argument here that the number of executions of the mentally retarded is rather small.

MS. RUMPZ: Yes.

QUESTION: And does not that reflect the fact that juries generally are reluctant to execute the mentally retarded, to impose the death penalty on the mentally retarded?

MS. RUMPZ: I -- I don't know that that reflects that. That -- that could reflect a number of things. That could -- that could reflect mitigation versus non-mitigation. It could reflect -- the brief of the –

QUESTION: Well, if -- if it is true, isn't --is that not one of the facts on which the Court relied in the rape case, holding that the crime of rape could not be-- command the death penalty?

MS. RUMPZ: Exactly. This Court looks at the laws and the application of the laws.

QUESTION: And the -- and the number of juries that refuse to impose the death penalty. And so, that's part of the consensus is what the juries have done as well as what State legislatures have done. Is that not right?

MS. RUMPZ: That is exactly right. But I don't think that you can infer that because there are X many of-- of juries who have given sentences to mentally retarded that that means juries are -- are reluctant to do it.

QUESTION: There are very few executions o fwomen in the United States. There have been for many years. Do you think we should make an exception to the death penalty for women?

MS. RUMPZ: Absolutely not.

QUESTION: Because juries so rarely impose it?

QUESTION: No, but it is -- it is part of our law. And I read you a sentence out of Coker against Georgia. It is true that in the vast majority of cases, at least 9 out of 10, juries have not imposed the death sentence. And that was one of the reasons why the Court held that the death sentence was unconstitutional. Is that not correct?

MS. RUMPZ: Well, I think that the fact that we're here arguing this case today is proof that juries do, in fact, give the death penalty to mentally retarded people. They -- they gave it -- the Commonwealth's brief is -- is -- got two or three pages of cases where –

QUESTION: No. The point isn't that they never do. It's the point that they rarely do.

MS. RUMPZ: And the fact that they rarely do, like I said earlier, could mean that juries believe, just as Atkins' team believes, that it -- that it should be rarely imposed.

QUESTION: Well, it -- it also may represent a jury's belief that it is a mitigating circumstance of such force that they should be spared the death penalty.

QUESTION: Of course.

MS. RUMPZ: And I agree. And in this case, the jury was specifically told about Atkins' mental retardation. Two doctors testified about it at length, and two different sentencing juries, after hearing from Atkins' expert witness, and after hearing the vile nature of his crime and about his 25 prior felonies, 24 jurors gave him the death sentence.

QUESTION: Ms. Rumpz, in making this cruel and unusual decision -- this is an issue that's come up before, but does what the rest of the world think about executing the mentally retarded -- should that have any relevance at all? I mean, we have, since the time we said we don't look to the rest of the world, been supporters of international human rights tribunals in -- for the former Yugoslavia, for the former Rwanda. But is it still, would you say, just irrelevant that most of the rest of the world thinks that mentally retarded people -- because it's inhuman to execute them?

MS. RUMPZ: This Court has said previously that the notions of other countries and the notions of other lands cannot play the deciding factor in what –

QUESTION: Not deciding. I asked you if it was relevant.

MS. RUMPZ: Well, it is relevant in – as Justice Scalia said in one of his opinions, to determine whether our practice is a historical accident or not. But it certainly is not relevant in deciding the Eighth Amendment principle.

QUESTION: Most of the world would not execute rocket scientists. Isn't that right? Including the European Union?

MS. RUMPZ: Most of the –

QUESTION: Would not execute rocket scientists.

MS. RUMPZ: Yes, the majority of -- of the – of the planet –

QUESTION: So, we should abolish the death penalty –

MS. RUMPZ: -- is opposed –

QUESTION: -- if that's -- if that's to be a –

QUESTION: I asked if it was relevant.

MS. RUMPZ: And -- and –

QUESTION: I didn't ask if it was dispositive.

MS. RUMPZ: It's not dispositive, and it is relevant once the Eighth Amendment principle has already been established. It's not relevant in establishing whether something is cruel and unusual.

QUESTION: Why do you need it after it's been established?

QUESTION: You don't.

MS. RUMPZ: You don't. You -- you look – you look after the fact to see whether -- I guess my answer I guess is it's not relevant.

QUESTION: That's what I thought.

MS. RUMPZ: It's not relevant.

QUESTION: I was going to -- I did not have a chance to ask petitioner's counsel because his rebuttal time was running up, but it's important to me. Mentally retarded people constitute about 1 percent of the general population. I've looked through the briefs and just could not find -- are there any statistics that you know that tell us what the prison population percentage of mentally retarded people are? What is the mentally retarded population of the criminal system generally? Do you know?

MS. RUMPZ: I don't know, and it -- there –

QUESTION: Would it be the same as the general population or higher?

MS. RUMPZ: I -- I couldn't speculate. We don't know and it's not in this record what the -- what the prison population of mentally retarded people –

QUESTION: What is the status of the legislation in Virginia on this point now?

MS. RUMPZ: It was -- it didn't pass the House.

QUESTION: It passed one house but not the other?

MS. RUMPZ: Passed -- bicameral legislature --Virginia. Passed the Senate, didn't get out of the House.

QUESTION: Was it voted on in the House?

MS. RUMPZ: I don't know.

QUESTION: I thought it wasn't voted on.

MS. RUMPZ: I don't believe it was voted on. I think it was -- it was -- it died in a committee I think. I'm not positive about that. I was actually here when they did that, and I wasn't -- I know that it -- it didn't get past the House side of the -- of the General Assembly. To -- to sum up, the national consensus issue is the key issue here today, and this Court needs to -- as --as the earlier argument or the earlier comments were, the Court needs to recognize as, Justice O'Connor, you recognized in Thompson and, Justice Scalia, you mentioned today, any decision this Court makes regarding this issueis irreversible. It is likely irreversible. These States who have enacted these laws, these18 States that have enacted these laws, the longest one has been on the books for 13 years. Some of them have been on the books for less than a year. On average, they've been on the books for an average of 5 years. Well, a national consensus has to be broad, clear, and enduring. Certainly statutes with an average age of 5 years don't establish an enduring national consensus against something. That's a blip in the radar screen of public opinion, or to borrow from Justice Scalia, it's a pendulum swing in public opinion. Now, these State legislatures may decide in 2 years –

QUESTION: How can you say it's a pendulum swing when it's all in the same direction? I thought a pendulum went back and forth.

(Laughter.)

MS. RUMPZ: It's a pendulum swing one way.

QUESTION: It only goes in one direction at a time, doesn't it?

(Laughter.)

MS. RUMPZ: But -- but my point is this practice has been allowed since the Bill of Rights was adopted in1789, and we have 18 States, some of which can't decide in between themselves whether the mentally retarded should or shouldn't be executed, with an average age of 5 years. Now, certainly 5 years is insufficient to determine whether there is an enduring national consensus against something. These States, as somebody recognized here earlier, may determine in 2 or 3 years that this is an experiment that just didn't work.

QUESTION: Well, do you accept that there's a consensus and want to argue it's just not enduring? Or what is it you're arguing?

MS. RUMPZ: No. I -- I think there's not a consensus, first of all, and my backup position is if there is a consensus, it certainly isn't one of an enduring nature. I don't think 18, even if you say all 18 of the States and ignore the retrospective/prospective --I don't know 18 out of 38 is a consensus. It's not even a majority, let alone a consensus. But even putting aside that for the matter, you-- even if you put that aside, we don't anything that's enduring. We don't have anything that shows that the long-term public opinion is against execution of the mentally retarded. We have a blip in the radar screen of public opinion which may change in 2 years. It may change in 3 years. If Osama bin Laden was brought back to the United States tomorrow, found to be mentally retarded and not being able to -- to be executed, public opinion would change, and there would be -- the blip in the radar screen would go away and the public opinion would be something different. But if this Court were to constitutionalize the prohibition, the public wouldn't have any opportunity to change their mind. And as this Court has said before, the States are laboratories. The States are laboratories for novel social experimentation. Well, this experiment is just beginning. This Court -- this -- there's -- there's --this Court should not call a halt to an experiment that has been on average for 5 years, especially when, as Justice O'Connor, you recognized in -- in Thompson, that halt could be irreversible. And if there are no further questions.

QUESTION: Thank you, Ms. Rumpz.

Mr. Ellis, you have a little less than a minute left.

MR. ELLIS: I'll endeavor to answer a couple of the questions that this Court has raised. First, with regard to Justice Kennedy's question about prison population, we don't have a reliable statistic. There is some indication, especially for very low level crimes, that there may be a higher level of people with mental retardation than in the general population. With regard to the States, Spaziano, it seems tome is a very important case here because it says we're not simply counting up States. We're seeing whether the States have reached a moral judgment, have reached a conclusion that the -- in this case, the understanding of people with mental retardation, their ability to control their behavior, their understanding of the context in which they behave, the maturity and responsibility with which they reach moral judgments is -- makes the death penalty unacceptable.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Ellis. The case is submitted.

(Whereupon, at 12:28 p.m., the case in the above-entitled matter was submitted.)