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ACLU of Utah sends legislative iterim committee a review of the proposed amendments to the law regarding sentencing in capital cases

16 September 2002 Published in State Policy Work

The ACLU of Utah comments on proposed legislation "Sentencing in Capital Cases Amendments" to protect the civil rights of the mentally retarded.

Sentencing in Capital Cases Amendments

September 17, 2002

Legislative Interim Judiciary Committee
Utah State Capital
Salt Lake City, Utah 84114

RE: Sentencing in Capital Cases Amendments

Dear Committee Members,

Please find attached an extensive review of the Sentencing in Capital Cases Amendments, 8/19/02 draft. The ACLU of Utah requested an expert review of this important proposed legislation. We hope the comments will help you to implement the United States Supreme Court's recent decisions in Atkins and Ring in a manner that is protective of the civil rights of the mentally retarded. Please feel free to contact me at 521-9862 x 103 if you have any questions regarding these comments.


Janelle P. Eurick
Staff Attorney


The University of Oklahoma College of Law

(405) 325-4646 # FAX: (405) 325-0389
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

TO: American Civil Liberties Union of Utah

FROM: Professor Randall Coyne, University of Oklahoma College of Law
Professor Lyn Entzeroth, University of Tulsa Law School

DATE: September 13, 2002

RE: Draft Amendments to Utah Criminal Code

At the request of Diann Rust Tierney, Professor Lyn Entzeroth of the University of Tulsa College of Law and I have now had an opportunity to review draft bills submitted during Utah's 2002 Special Legislative Session. These bills would revise Utah's criminal code by implementing the constitutional prohibition against sentencing mentally retarded inmates to death which the United States Supreme Court announced this past term in Atkins v. Virginia.

Although Professor Entzeroth and I reviewed two draft bills (the August 2 and August 19 versions), our comments are directed to the August 19, 2002 version which we understand is currently under consideration in the Judiciary Committee.

Section 76-2-305. Mental illness - Use as a defense - Influence of alcohol or other substance voluntarily consumed - Definition.

Subsection 1(a) and (b) and subsection (2), taken together, may present constitutional problems. Subsection 1(a) states that mental illness provides a defense to criminal responsibility where "the defendant, as a result of mental illness, lacked the mental state required as an element of the offense charged." Under subsection 1(b), however, "mental illness is not otherwise a defense," and may be used only as mitigating evidence. According to subsection (2), the mental illness referred to in subsections 1(a) and 1(b) includes insanity.

Subsection 1(a) states a legal truism - someone whose mental illness prevents him from having the requisite mens rea is not guilty. This is so because the prosecution will not be able to prove criminal intent. Subsection 1(b), however, may sweep too far, by requiring conviction of someone who, though insane as a matter of law, can be shown to have acted with the state of mind required for criminal responsibility. For example, depending on the definition of insanity adopted in Utah, an insane person who acts with the most culpable criminal state of mind - purposely or intentionally - will be found guilty even though his insanity compelled him to commit the criminal act or prevented him from realizing the wrongfulness of his conduct.

Section 76-3-207. Capital felony - Sentencing proceeding.

Subsection 4(d) provides that "[m]itigating circumstances include: at the time of the homicide, the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirement of law was impaired as a result of a mental condition, intoxication, or influence of drugs . . . ."(Emphasis added.)

The term "mental condition" has been substituted for the terms "mental illness or mental retardation." Our concern here is that the intentional deletion of mental retardation from the category of mitigating evidence may suggest that the legislature wishes to treat mental retardation as an all-or-nothing proposition in capital cases: A defendant must be declared mentally retarded in order to become ineligible for a death sentence. However, if a defendant is not declared mentally retarded, any evidence of mental retardation he proffers which does not persuade the court that a defendant is in fact mentally retarded might be precluded as mitigating evidence during sentencing.

If this interpretation is adopted, it would certainly run afoul of the U.S. Supreme Court's decision in Lockett v. Ohio, which clearly holds that in a capital case a defendant may not be prevented from arguing as the basis of a sentence other than death any evidence related to the defendant's conduct, character, or the circumstances of the offense.

Subsection 8 provides: "If the appellate court's final decision regarding any appeal of a sentence of death precludes the imposition of the death penalty due to mental retardation, the defendant's sentence becomes a sentence of life in prison without parole."

This provision is subject to sharp criticism, both on due process and equal protection grounds. If an appellate court determines that a prisoner is mentally retarded and therefore may not constitutionally be executed, subsection 8 mandates that the defendant's death sentence is changed to life without parole.

It makes scant sense to decide that a mentally retarded person who may not constitutionally be sentenced to death is, by virtue of their mental retardation, also ineligible for any sentence other than life without parole. What constitutional (or rational) basis could there be for legislating that mentally retarded capital defendants should be deprived of sentencing options available for non-retarded capital defendants, specifically, the possibility of a sentence of 20 years to life (with the possibility of parole)? Obviously, not all guilty, non-retarded defendants in Utah who escape death sentences receive sentences of life without parole. Doubtless, some are sentenced to life with parole, and some are sentenced to as few as 20 years. Singling out mentally-retarded-therefore death-ineligible defendants for harsher treatment than their non-retarded counterparts who can avoid both death and life without parole sentences is particularly objectionable, given the Atkins Court's explicit recognition that mentally retarded defendants are generally less culpable than non-retarded defendants.


Section 77-15a-1.

This section attempts to codify the U.S. Supreme Court's holding in Atkins v. Virginia: "A person who is found by the court to be mentally retarded as defined in Section 77-15a-2 may not be subjected to the death penalty." (Emphasis added.)

To the extent that this section is interpreted to require that the court make the findings regarding mental retardation, it may run afoul of Ring v. Arizona, in which the U.S. Supreme Court held that ___________. The application of Ring to mental retardation decisions remains very much an open question.

Section 77-15a-2. "Mentally retarded" defined.

The definition of mental retardation provided in section 77-5a-2 does not faithfully track the DSM IV definition. This does not necessarily present a problem, however, and may prove to provide more flexibility to Utah jurors. The Utah definition differs from the traditional definitions of mental retardation in several ways. First, the Utah definition does not specify how many deficits in adaptive functioning are required before someone is determined to be mentally retarded. All that is required are "significant deficits" (unlike the DSM IV which requires at least two significant deficits).

Second, unlike other attempts to define mental retardation by reference to a specific IQ test score (usually between 70 and 75), the Utah definition merely requires "significant[] subaverage general intellectual functioning." Utah's statute appears preferable in this regard to, for example, the recent Oklahoma Court of Criminal Appeals decision which provides that if you have ever been tested and determined to have an IQ greater than 70 you can not be found to be mentally retarded.

Finally, unlike mental retardation standards prevailing elsewhere, Utah's proposed statute requires that the "subaverage general intellectual functioning" and co-existing "significant deficits in adaptive functioning" must both manifest "prior to age 22" (emphasis added.) This provision generously provides defense counsel with four more years (the DSM IV requires manifestation by age 18) to examine in trying to develop evidence demonstrating that the capital defendant was in fact retarded at the time he committed the acts which led to his arrest.

Section 77-15a-4. Order for hearing - Stay of proceeding - Examinations of defendant - Scope of Examination - report - procedures.

Subsection 1 grants the court the power to stay pending proceedings when an issue regarding the defendant's possible mental retardation arises. This is a necessary power.

Subsection (2)(a) provides: "The court shall order the Department of Human Services to appoint at least two mental health experts to examine the defendant and to report to the court whether the defendant is mentally retarded."

This provision raises questions regarding the neutrality of DHS experts who are paid by the state. Ake v. Oklahoma may be read to require that the defendant is entitled to appointment of their own experts on this life and death issue. The statute does seem to permit defense counsel to employ their own witnesses on the issue of retardation. Section 77-16a-301(c) (the prosecution and the defense may retain independent examiners). However, expert witnesses not appointed by the court are not eligible to be paid by DHS. Section 77-16a-301(4). As long as the statute is construed to permit the court to appoint experts for indigent defendants, though they are to be paid by some other source than DHS, Ake should be satisfied.

Subsection 2(b) lists the following "information and materials" which shall be provided to mental health experts selected by the court and charged with reporting on the defendant's claim of mental retardation: "copies of the charging document, arrest or incident reports pertaining to the charged offense, known criminal history information, and known prior mental health evaluations and treatments."

This list is woefully underinclusive. Other records which may reveal competent evidence of mental retardation include school records, DHS records, medical records of all types (not just mental health evaluation and treatment records), arrest or incident reports pertaining to offenses other than the one presently charged and many other records. As complete a picture as is possible should be made available to the experts at the earliest moment possible, to avoid sandbagging and to demonstrate where possible early manifestation of mental retardation. Also, these types of records could be useful to rebut a claim that the defendant is malingering or somehow attempting to manufacture retardation to avoid death.

Subsection 7(a) directs that "where practicable" the court shall hold a mental retardation hearing "prior to jury selection." This is an essential provision, and perhaps could be made even stronger. By requiring a mental retardation hearing to occur whenever practicable before jury selection, the legislature is avoiding a flurry of challenges which would doubtless be raised were the issue of mental retardation deferred until or combined with the sentencing stage of a capital trial.

Also, from a budget standpoint, it is prudent to learn as early as possible whether a death sentence is a possible outcome, given that death cases are routinely far more expensive than non-death cases, in large part because of the heightened due process which is provided in capital cases.

As noted above, though, the provision in subsection 7(a) which mandates that the judge shall make the determination regarding mental retardation is subject to constitutional challenge in light of the Supreme Court's decision in Ring v. Arizona. (Emphasis added.)

Subsection 8(a) assigns a burden on the defendant claiming retardation of "preponderance of the evidence." Although an argument could be made that a since a defendant's retardation make him ineligible for death, the prosecution should be required to establish his death eligibility (as being not retarded) by the same standard used to establish aggravators which make a defendant death eligible: proof beyond a reasonable doubt.

It may be, though, that the preponderance burden placed on defendants is a constitutionally sound standard in light of Cooper v. Oklahoma, in which the Supreme Court held that preponderance was the appropriate standard for deciding questions of competency to stand trial.

Even if requiring the defendant to raise the issue presents no constitutional problem, perhaps the statute could add that defense counsel who fail to investigate and raise the issue of mental retardation in an appropriate case are presumed to be ineffective under Utah's state constitution.

Subsection 9(b) provides that if the court does not find the defendant to be mentally retarded the defendant "may still present evidence of mental condition as a potential mitigating circumstance" during the capital sentencing hearing.

This is absolutely essential, consistent with Lockett v. Ohio (in capital case, defendant may not be prevented from arguing anything related to character, record, or circumstances of the offense as a basis for a sentence less than death), and will save Utah lots of time and money spent litigating claims of Lockett error that would otherwise be raised.

Section 77-15a-5. Defendant's willful failure to cooperate - Expert testimony regarding retardation is barred.

Subsection 2 raises serious constitutional problems. The Supreme Court in Atkins has created an absolute prohibition against executing persons determined to be mentally retarded. As we read Atkins, we doubt whether the Eighth Amendment prohibition can be waived. Although the Supreme Court may prove me wrong, and although Utah doubtless wants to prevent smarmy defense counsel from sandbagging on mental retardation, gambling on getting a sentence other than death, losing that battle, then raising the issue to require a new sentencing hearing, some other procedure is advisable. Perhaps determinations of mental retardation can be made without the defendant's cooperation. We're at a loss as to how to address this problem, but we have serious reservations that Utah's provision will survive constitutional challenge. Perhaps the answer is that sandbagging counsel will likely be found to have been ineffective, since prejudice (failing to demonstrate retardation where it exists makes an ineligible defendant eligible for death) can easily be demonstrated.

Section 77-15a-6. Limitations on admitting mental retardation examination evidence.

This section prudently prevents the defendant's statements and fruits of the defendant's statements revealed during the mental retardation examination from being admitted at trial. If properly enforced, this provision should eliminate sticky Miranda claims, and avoid the appearance of the state taking advantage of a defendant's mental weakness to gather evidence of guilt under the guise of a mental retardation evaluation.


The more procedural protections Utah provides at the very beginning of the capital trial process, the more likely it is that Utah's death sentences will withstand constitutional scrutiny. Even though Utah's proposed bill has serious flaws identified above, it also has incorporated constitutionally mandated protections which will save taxpayers enormous sums. If amended to address the concerns outlined above, the bill could serve both the cause of justice and the taxpayers of Utah equally well.

Very truly yours,

Randall Coyne
Professor of Law

Lyn Entzeroth
Professor of Law