Pretrial Mental Retardation Assessment in Capital Punishment Cases
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* Darren Lish
* Dana Salomy

### Defendant’s Burden of Proving Mental Retardation by Clear and Convincing Evidence Does Not Offend *Atkins*

In *People v. Vasquez*, 84 P.3d 1019 (Colo. 2004), the Colorado Supreme Court affirmed the constitutionality of its statue that imposes on the defendant the burden of proving mental retardation by clear and convincing evidence in capital punishment cases. The U.S. Supreme Court in *Atkins v. Virginia*, 536 U.S. 304 (2002), ruled that the Eighth Amendment prohibition against cruel and unusual punishment bars execution of the mentally retarded. Given the substantive prohibition announced in *Atkins*, Vasquez argued first that the Colorado statute impermissibly places an unconstitutional burden of proof on the defendant to prove mental retardation. Second, he argued that if mental retardation must be proved by the defense, the standard of proof is impermissibly high and should be reduced from “clear and convincing” evidence to a “preponderance” of the evidence. The Colorado Supreme Court disagreed on both points.

#### Facts of the Case

On September 5, 2002, Jimmy Joseph Vasquez was charged in Adams County, Colorado, with the first‐degree murder of his wife, Angela Marie Vasquez. Vasquez pleaded not guilty, and the prosecution filed a notice of intent to seek the death penalty. Subsequently, Mr. Vasquez filed “notice of mental retardation,” which, if proved, would exempt him from execution. He then filed a motion challenging the constitutionality of Colo. Rev. Stat. § 18-1.3-1102, which outlines the procedure to be followed when a defendant raises the issue of mental retardation in a death penalty case. The statute states in part that upon notice of intent to show mental retardation, the court shall hold a pretrial hearing during which “the defendant shall have the burden of proof to show by clear and convincing evidence that such defendant is mentally retarded.” Mr. Vasquez argued that the statute places an unconstitutional burden on the defendant to prove his mental retardation, given the substantive prohibition against the execution of the mentally retarded announced in *Atkins.* The trial court agreed with Mr. Vasquez and ordered the prosecution to prove that he was not mentally retarded by a preponderance of the evidence. Following the ruling of the trial court, the prosecution filed a petition to the Colorado Supreme Court for a rule to show cause why the trial court’s order should not be vacated.

During the hearing, Mr. Vasquez reiterated his argument that § 18-1.3-1102 is unconstitutional because requiring the defendant to bear the burden of proof concerning the fact of mental retardation offended the substantive prohibition outlined in *Atkins*. In addition, he argued that if the burden must fall on the defendant, the standard of proof must be lowered from clear and convincing evidence to a preponderance of the evidence. In defense of this second argument, Mr. Vasquez cited the U.S. Supreme Court case *Cooper v. Oklahoma*, 517 U.S. 348 (1996), which struck down an Oklahoma statute requiring a defendant to prove his incompetence to stand trial by clear and convincing evidence. At issue in *Cooper* was the fundamental right of a defendant not to be tried should he be found incompetent by only a preponderance of the evidence. Mr. Vasquez argued that he shared a similar fundamental right not to be executed should he be found mentally retarded by only a preponderance of the evidence.

#### Ruling and Reasoning

The Colorado Supreme Court ruled that § 18-1.3-1102, which places on the defendant the burden of proving mental retardation by clear and convincing evidence in capital punishment trials, is “constitutionally sufficient under all applicable standards.” The rule to show cause was made absolute, and the case was remanded back to the trial court for further proceedings.

In its reasoning, the court held that the ruling in *Atkins* merely declared that the Eighth Amendment prohibition against cruel and unusual punishment barred the execution of the mentally retarded. It did not, however, describe the process by which the defendant might be found to be mentally retarded. This process, outlining both the allocation of burden and the standard of proof, was to be left to the states. Several states, including Colorado, had already passed legislation prior to *Atkins* that barred the execution of the mentally retarded and had such a process in place. Therefore, according to the court, § 18-1.3-1102 set forth the process to implement the substantive restriction declared by *Atkins* and did not offend any constitutional mandate.

With regard to the standard of proof necessary to show mental retardation, Mr. Vasquez argued that the standard should be compared with that required to prove incompetence to stand trial. In *Cooper*, the U.S. Supreme Court decided that due to the fundamental right at issue—that an incompetent defendant should not be tried—the standard of proof should be no more than a preponderance of the evidence to protect that right at all cost. Mr. Vasquez argued that the protection of the mentally retarded from execution was equally as fundamental and should be held to the standard outlined in *Cooper*. The Colorado Supreme Court disagreed, however, and reasoned that the concerns outlined in *Cooper* were “simply not implicated” in this case, presumably because the issue involved pretrial procedures rather than the ultimate issue of capital punishment.

#### Discussion

The Colorado Supreme Court’s ruling that the state statute at issue is indeed constitutionally permissible was based on *Atkins*’s deference to the states to create their own procedures for determining mental retardation in capital punishment cases. The question not addressed by the Colorado court, however, is whether the current allocation of burden and standard of proof is indeed fair. Whether the burden should fall on the prosecution to prove that every defendant facing the death penalty is not mentally retarded is debatable. The argument, however, posed by Mr. Vasquez with regard to the standard of proof is compelling. If the U.S. Supreme Court has explicitly barred the execution of the mentally retarded, is it not the duty of the state to prevent that from happening at all cost? One can imagine a scenario similar to the situation in *Cooper* in which a defendant may be found mentally retarded by a preponderance of the evidence, but not by the clear and convincing standard. Is the intention of the *Atkins* Court served by the execution of such an individual? If not, then perhaps the standard of proof should be lowered to a preponderance of the evidence to protect the now fundamental right of the mentally retarded not to be executed. The *Vasquez* court did not offer an explanation for its ruling that the issues outlined in *Cooper* “are not indicated here.”

How the court defines mental retardation, what methods should be used during the assessment of that determination, and how the standard of proof relates to the findings are significant issues facing forensic psychiatrists and psychologists. In its ruling in *Atkins*, the Supreme Court recognized the role of the professionals when it declared that “to the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.” Because the Court did not provide explicit guidance to the states for this determination, state statutes have varied widely in this regard.

To address variation among the states, the American Psychiatric Association (APA) released a resource document on mental retardation and capital sentencing recommending how the ruling in *Atkins* should be implemented. Specifically, the document addresses the definition of mental retardation, the specific procedure to be followed when assessing whether capital defendants have mental retardation, and the qualification of experts selected to conduct these evaluations.

Most state statutes use a diagnostic approach to mental retardation, as opposed to a diminished‐capacity approach. The two main sources used for definitional guidance are the manual of the American Association of Mental Retardation (AAMR) and the APA’s *Diagnostic and Statistical Manual*. Although these sources use different wording, their concepts are similar, requiring limitations in intellectual functioning and adaptive behavior, with a developmental onset prior to age 18. States may choose to use one or the other in framing their definition of mental retardation, or may choose to use a combination of both. With regard to the limitation in intellectual functioning criteria, the APA recommends defining limited intellectual ability as scores on an approved test that are at least two standard deviations below the mean. Limitation in adaptive behavior is assessed within three basic domains of adaptive functioning—conceptual, social, and practical. The AAMR manual provides an explanation of how currently available instruments operationalize and measure adaptive behavior through the assessment of skills in these three domains.

Given what is at stake in capital punishment cases, reliability during mental retardation assessment is essential and requires practice standards. The APA recommends at least one standardized test of intellectual functioning, one standardized test of adaptive behavior, and collateral information for the assessment of developmental origin in the form of pertinent records, prior disability assessments, and parental or caregiver reports. The APA also recommends that mental health professionals skilled in the administration, scoring, and interpretation of intelligence tests and measures of adaptive behavior conduct the standardized tests.

## Footnotes

*   Editor’s Note: The APA Resource Document on Mental Retardation and Capital Sentencing was printed in full in this journal (J Am Acad Psychiatry Law 32;304–16, 2004) with clinical and legal commentaries.

*   American Academy of Psychiatry and the Law