Burden of Proof for Mental Retardation
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* Karl Mobbs
* Sara West

## Georgia Supreme Court Rules Burden of Proof for Mental Retardation Is Beyond a Reasonable Doubt in a Death Penalty Case

In *Stripling v. State*, 711 S.E.2d 665 (Ga. 2011), a state law requiring that capital murder defendants prove mental retardation beyond a reasonable doubt was upheld and deemed constitutional. The court found that proof of mental retardation is analogous to insanity and so should require a similar burden of proof.

#### Facts of the Case

In 1988, while working at Kentucky Fried Chicken, Alfonso Stripling shot four co-workers; two died and two were injured. He then fled with stolen money, taking an automobile at gunpoint. He was convicted on two counts of murder, armed robbery, and aggravated assault. He was sentenced to death for each count of murder, a verdict that was affirmed by the Georgia Supreme Court.

Mr. Stripling filed a writ of *habeas corpus*, which was granted in regard to his death sentence. The decision was appealed. The Georgia Supreme Court ruled that the state had suppressed information pertaining to his alleged mental retardation. It affirmed the *habeas* court's decision to order a retrial.

The Georgia Supreme Court reviewed whether the trial court erred in deciding what burden and standard of proof should apply to Mr. Stripling's claim of mental retardation.

#### Ruling and Reasoning

The Georgia Supreme Court reversed the trial court's ruling that a preponderance of the evidence standard should apply and reaffirmed the court's previous holding that a beyond a reasonable doubt standard is just and constitutional (*Head v. Hill*, 587 S.E.2d 613 (Ga. 2003)).

The Supreme Court of the United States held that mentally retarded defendants have a constitutional right to be exempt from the death penalty (*Atkins v. Virginia*, 536 U.S. 304 (2002)). It did not rule on a burden of proof for claims of mental retardation, leaving this decision to the states. As a result, states vary in the standard that is applied.

A Georgia statute states that defendants found to be mentally retarded beyond a reasonable doubt are exempt from the death penalty (OCGA §17-7-131 (c) (3) and (j) (2006)). Mr. Stripling asked the trial court to find the standard of proof necessary for a diagnosis of mental retardation unconstitutional. He also asked that the burden be shifted to the state to prove he was not mentally retarded. The trial court agreed that the burden of beyond a reasonable doubt was unconstitutional and should be changed to a preponderance of the evidence. The trial judge ruled that the state should not bear the burden.

The trial court ruling relied on an earlier decision in *Hill v. Schofield,* 608 F.3d 1272 (11th Cir. 2010), a decision that was later vacated for *en banc* reversal.

The Georgia Supreme Court noted that its decision was a reiteration of *Head v. Hill*, an earlier holding that found that Georgia's standard of beyond a reasonable doubt was not unconstitutional. That decision recognized the *Atkins* constitutional right of an exemption of mentally retarded defendants from the death penalty, but set no standard of proof to find that a defendant was mentally retarded.

The Georgia Supreme Court also took guidance from *Leland v. Oregon* (343 U.S. 790 (1952)), an insanity ruling of the U.S. Supreme Court, with regard to the use of the standard of beyond a reasonable doubt. The court noted that both claims of mental retardation and of insanity “relieve a guilty person of at least some of the statutory penalty to which he would otherwise be subject” (*Head*, p 621). It rejected claims that mental retardation is analogous to a determination of incompetence to stand trial, which requires a standard of preponderance of the evidence. The Georgia Supreme Court noted that Georgia was not alone in placing a higher burden than a preponderance of the evidence on defendants seeking to prove mental retardation. In determining that the court had not established a procedural standard for discerning a mentally retarded defendant, that there is a similarity in the exculpatory nature of a finding of insanity and mental retardation, and that other states had required a higher burden than preponderance of the evidence, Georgia's standard of beyond a reasonable doubt was found not procedurally unconstitutional.

The Georgia Supreme Court noted that its ruling was consistent with the national consensus about treatment of mentally retarded persons set forth in *Atkins*, in which the Supreme Court praised Georgia for being the first state to have banned the execution of mentally retarded persons. The court counted Georgia among the states forming the national consensus about the treatment of mentally retarded defendants and “made no negative comment about Georgia's heightened standard of proof” (*Stripling*, p 669). Furthermore, Georgia was not alone in demanding proof of mental retardation according to a higher standard. At the time of *Atkins*, Colorado, Florida, Indiana, and Arizona established that a defendant must prove mental retardation by clear and convincing evidence.

At that time, Kansas was considered part of the national consensus of treatment of mentally retarded defendants, despite requiring that a causal nexus be established between a defendant's mental retardation and his culpability. “‘Mentally retarded’ means having significantly subaverage general intellectual functioning … to an extent which substantially impairs one's capacity to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law” (Kan. Stat. Ann. § 21-4623 (e) (2001)).

In light of these varied approaches for setting the standard of proof regarding mental retardation, the Supreme Court noted: To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded…. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus [*Atkins*, p 317].

The Georgia Supreme Court defined mentally retarded persons in *Head v. Hill*, as, “those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt” (*Head*, p 622). It noted that it is illogical for the court to form the very consensus on treatment of mentally retarded offenders and be in violation of such a rule. It reaffirmed its statutory definition of mental retardation and ruled its prior decision not unconstitutional under *Atkins*.

#### Dissent

Judge Bentham was the sole dissenter. His concern was that someone found clinically mentally retarded could not overcome the “insurmountable hurdle” (*Stripling*, p 671) of proving mental defect beyond a reasonable doubt and would be executed. He noted that of the 30 states with the death penalty, 22 require a preponderance of the evidence to prove mental retardation. Georgia is the only state requiring evidence beyond a reasonable doubt. This situation he notes does not serve “the greater good” (*Stripling*, p 671), especially given that the state was initially leading the nation in prohibiting execution of the mentally retarded.

#### Discussion

There are two notable cases involving the justification of standard of proof in light of psycholegal concerns. In *Cooper v. Oklahoma*, 517 U.S. 348 (1996), the Supreme Court ruled that a lower standard, preponderance of the evidence, was appropriate for proving a defendant's incompetence to stand trial. This burden, the Supreme Court stated, served to protect a mentally ill individual from going to trial in the midst of an acute mental health episode.

In *Addington v. Texas* (441 U.S. 418 (1979)), the converse argument was made for a higher standard, clear and convincing evidence, with the burden on the state, to protect the liberty interests of those civilly committed. Both cases serve a protective role for the individuals.

However, in *Stripling* the burden is heightened, potentially establishing a barrier between the defendant and protection from an unjust death penalty and thus lessening the protection of the individual that was afforded by the legal system in the other two cases.

The very imprecision of psychiatry as identified in *Washington v. United States*, 390 F.2d 444 (D.C. Cir. 1967)), also makes the use of the highest burden of proof hard to justify. However, there is a notable difference in this case. One of the core components of diagnosing mental retardation is IQ testing, which provides a numeric value that is uncommon in other psychiatric diagnoses. This feature renders such a finding arguably more precise than a competency or civil commitment evaluation, which relies heavily on a clinical interview. A concern raised in *Atkins* is the possibility of malingering mental retardation to avoid a death sentence. It is notable that one can fake bad, but not good, on an intelligence test. In this regard, the testing increases the likelihood of an overinclusion of those faking bad, but testing is less likely to exclude those who are truly mentally retarded. Malingering is a legitimate concern, but not a reason to exclude protection for those whom society has decided need such protection.

In *Atkins*, the Supreme Court ruled that, under the Eighth Amendment, executing a mentally retarded defendant is unconstitutional. In not setting a constitutional burden of proof, it respects the states' right to do so. However, just one expected execution of someone who does not reach Georgia's heightened burden but is believed to be mentally retarded may force the Supreme Court to rule on the burden of proof. The current consensus among the states favors a lower standard, since 26 of 30 states that impose the death penalty require a lower standard for proving mental retardation in death penalty cases than Georgia does. The other states have not specified a standard, which renders Georgia a sole outlier with regard to its high standard of proof.

## Footnotes

*   Disclosures of financial or other potential conflicts of interest: None.

*   © 2013 American Academy of Psychiatry and the Law