Mental Retardation and the Death Penalty: Addressing Various Questions Regarding an Atkins Claim

Facts of the Case

In May 1994, Jose Rivera was convicted and sentenced to death for murdering a three-year-old boy in Texas. After denial of his initial state and federal habeas petitions, the court set his execution for August 6, 2003. On June 20, 2003, he filed another state habeas petition claiming mental retardation and ineligibility for execution as outlined by the U.S. Supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002). Following the dismissal of the state petition, he sought authorization from the Fifth Circuit Court of Appeals to file a successive federal habeas petition.

On August 6, 2003, the circuit court denied Mr. Rivera's request, citing the failure to make a prima facie case of mental retardation, since it could not consider mental retardation evidence that had not been presented at the state level. Accordingly, on the same day, he filed a state habeas petition and presented mental retardation evidence to the state court. After the state court rejected this petition, he again sought authorization to file the federal habeas petition, since the Fifth Circuit appellate court could then consider the mental retardation evidence.

On August 6, 2003, the circuit court found that Mr. Rivera had made a prima facie case of mental retardation, authorized the successive petition, and stayed his execution. He filed the federal habeas petition with the district court on August 11, 2003. The State of Texas moved to dismiss the petition as untimely under the statute of limitation guidelines of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). The district court denied the state's motion and found him to be mentally retarded. The district court's ruling, however, failed to address the timeliness of the petition. Consequently, the state appealed the decision arguing that the district court erred by not dismissing the petition and in finding him mentally retarded.

Ruling and Reasoning

The Fifth Circuit Court of Appeals reviewed the matter and ruled that Mr. Rivera was mentally retarded, but remanded the case for reconsideration of timeliness of the petition. The circuit court noted that while the statute of limitations of the AEDPA had expired by August 11, 2003, a “court can allow an untimely petition to proceed … in extraordinary circumstances.” The appellate court further noted that the issues of petition timeliness and his mental retardation blended “inseparably,” since the circumstances of timeliness related to whether he was mentally retarded.

Upon reviewing whether Mr. Rivera had presented a prima facie case of mental retardation, the circuit court examined the psychiatric report proffered by his defense. The court found that since the expert report considered his prior medical records, school records, and affidavits from his teachers and family members that raised serious concerns about mental retardation, it was unreasonable for the state court to find no prima facie case of mental retardation. Thus, the circuit court held that the state court's decision deprived him of a fair opportunity to develop his claim.

In support of this finding, the circuit court highlighted similarities between Atkins and Ford v. Wainwright, 477 U.S. 399 (1986), which limited eligibility for the death penalty by prohibiting the execution of incompetent individuals. According to the circuit court, both cases, while limiting eligibility for the death penalty, failed to provide procedures for states to follow in implementing those limitations.

The circuit court viewed this case in relation to Atkins, as analogous to the U.S. Supreme Court's application of Ford in Panetti v. Quarterman, 127 S. Ct. 2842 (2007). In Panetti, a petitioner made substantial showing of incompetence for execution, but the state court failed to provide him with procedures conforming with Ford. That failure rendered the state court's decision denying the petitioner's incompetency claim an unreasonable application of established federal law. Comparing Panetti to the instant case, the circuit court found that when a petitioner makes a prima facie showing of mental retardation, as Mr. Rivera did, a state court's failure to allow an opportunity to develop that claim also represents unreasonable application of established federal law.

Further, the circuit court distinguished this case from its earlier case, Moreno v. Dretke, 450 F.3d 158 (5th Cir. 2006), in which it affirmed the dismissal of a habeas petition for failure to make a prima facie case of mental retardation. In that case, a petitioner submitted an IQ of 64; however, the test administrator cited the poor examination effort by the petitioner and the lack of independent evidence of adaptive deficits except for the petitioner's self-report. Conversely, Mr. Rivera provided stronger evidence of mental retardation, including school and medical records and affidavits by family members and teachers. Accordingly, the circuit court found that there was no error in considering his retardation claim.

Next, the circuit court considered whether the district court had erred in finding that Mr. Rivera was mentally retarded. The circuit court reviewed the three elements necessary to establish mental retardation, as outlined by the Texas state court decision in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004): a significantly subaverage level of intellectual functioning, related limitations in adaptive functioning, and onset before the age of 18.

The court pointed out that Mr. Rivera had a Wechsler Adult Intelligence Scale III (WAIS-III) score of 68. Texas argued that the test was unreliable in light of cultural factors, since he was bilingual and processed “English and Spanish in competition,” which “dragged down” the WAIS-III score. In rejecting this argument, the circuit court found compelling psychiatric testimony presented to the lower court that he had no difficulties in communicating and that the WAIS-III accounted for bilingual examinees. As such, the circuit court agreed that “the clinician must ultimately make the decision” regarding the circumstances of the administration of the test.

The circuit court also disagreed with the state's argument that the district court had erred by rejecting Mr. Rivera's four pre-Atkins IQ scores of 70, 85, 92, and 80. Noting that these scores were not from Wechsler tests, but were prison screening tests, the circuit court agreed that correlation with WAIS scoring was questionable. The circuit court found that these scores were not rejected, but were weighed for their significance and lacked “a degree of sufficient reliability to satisfy this Court.”

The circuit court further disagreed with the state's arguments that Mr. Rivera's adaptive functioning deficits were due to substance abuse before age 18 and not to mental retardation. The court indicated that mental retardation has numerous etiologies and that since the evidence demonstrated adaptive functioning deficits before age 18, it was plausible that those deficits were due to mental retardation. Consequently, the circuit court held that no error occurred in finding that he was mentally retarded.

Discussion

Rivera provides an instructive perspective on the challenges facing courts adhering to the prohibition of executing mentally retarded individuals. As stated by the court in Rivera, Atkins provides a blanket prohibition without providing procedural guidelines to state courts. As such, state courts must mull over what constitutes mental retardation and re-examine preexisting legislation in the context of Atkins. In addition, federal provisions, such as the AEDPA, which limit abuse of habeas petitions, may become problematic when applied to mentally retarded petitioners. Given the limited intellectual capabilities of mentally retarded petitioners, it is not difficult to imagine their challenge in adhering to such provisions, even with the assistance of counsel.

Rivera also demonstrates the challenge facing courts in defining mental retardation in their respective jurisdictions, especially in states where the legislature has remained silent on the issue. Concerns such as determining the measures that qualify to establish intellectual capacity, as well as the impact of an individual's specific demographic background on these measures are considered. Further, during determinations of mental retardation, courts must decide what weight should be given to various etiologies, including substance abuse, that affect an individual's adaptive functioning.

Consequently, forensic psychiatrists must be aware of these various concerns as they navigate the landscape set forth by Atkins. Knowledge of the criteria required to establish mental retardation in a particular jurisdiction is critical before offering an opinion on the question. Inevitably, legal objections to mental retardation claims will arise based on an array of issues. Thus, psychiatric reports should consider particular characteristics of the examinee, such as cultural factors and circumstances surrounding IQ testing that may affect the mental retardation claim. As seen in Rivera, the psychiatric report is likely to be the linchpin of a mental retardation claim. Careful clinical consideration of these questions may determine whether the mental retardation claim is heard by the courts.