¹ Lutz Eidam is Research Assistant at the Institute for Criminal Law Sciences and Philosophy of Law at the Johann Wolfgang Goethe-University in Frankfurt/Main. E-mail: [email protected]. The author would like to thank Prof. Markus Dirk Dubber, State University of New York at Buffalo, for supporting and discussing a seminar paper on the Atkins Case that delivered the idea to this article. Additionally, many thanks to Prof. Russel Miller, University of Idaho College of Law, for useful suggestions on how to develop this article.Google Scholar

² See Lynaugh, Penry v., 492 U.S. 302 (1989). In approving the execution of mentally retarded people and holding that there is no violation of the Eighth Amendment and its standard of decency the Court stated: “While a national consensus against execution of mentally retarded may someday emerge reflecting the ‘evolving standards of decency that mark the progress of a maturing society', there is insufficient evidence of such a consensus today.” Id. at 340.Google Scholar

³ Virginia, Atkins v., 122 S.Ct. 2242 (Decided June 20, 2002).Google Scholar

⁴ Greenhouse, Linda, The Supreme Court: The Death Penalty: Citing ‘National Consensus', Justices bar Death Penalty for Retarded Defendants, New York Times June 21 2002, Section A Page 1.Google Scholar

⁵ Id.Google Scholar

⁶ Zeller, Tom, Ideas & Trends: Tweaking Death Row, New York Times June 30 2002, Section 4 Page 16. This number is a minimum number because of the difficulty as to the definitions and measurements of mental capacity.Google Scholar

⁷ Terminology in this field is somewhat complex. “Mental retardation” is today the accepted term in common usage. It, however, specified old terms like “mental deficiency”, “developmental disabilities” or the common law terms “idiots”, “morons” and “feebleminded” that served at each occasion as some kind of umbrella terms and therefore included nowadays term of mental retardation.Google Scholar

⁸ Blackstone, William, Commentaries on the Laws of England, Book IV - Of Public Wrongs (1769), at 24. See also W. Lawrence Fitch, Mental Retardation and Criminal Responsibility, in: The Criminal Justice System and Mental Retardation 121 (1992), 122 citing M. Dalton, The countrey justice (1618), who stated:” [I]f one that is ‘non compos mentis,’ or an ideot, kill a man, this is no felony, for they have no knowledge of Good and Evil (…)”.Google Scholar

⁹ Blackstone, , supra note 8, at 25.Google Scholar

¹⁰ For a detailed overview of the insanity defense see Wayne R. La Fave, Criminal Law, 2nd ed (1986) Chapter 4 Sec. 4.1 – 4.6. For statutory provisions of the insanity defense see for instance Model Penal Code § 4.01; 18 U.S.C. § 17; New York Penal Law § 40.15.Google Scholar

¹¹ La Fave, supra note 10, at 305.Google Scholar

¹² Nevertheless the actual consequence of a successful insanity defense is quite different than with respect to any other defense. In every other case, a successful defense results in acquittal and outright release of the defendant, but with the insanity defense the probable result is commitment of the defendant to a mental institution until he has recovered sanity. See La Fave, supra note 10, § 4.6.Google Scholar

¹³ See e.g. United States v. Shorter, 343 A 2d. 569 (D.C. 1975) for a decision that sees no real difference between both concepts: “Mental retardation is a mental defect capable of affecting both mental processes and behavior controls to the extent that a defendant in a given situation might not be able to appreciate the wrongfulness of his conduct or might not be able to conform his conduct to the requirements of the law. Retardation is thus a basis for a defense of insanity, and was so regarded by the parties to this case.” Id. at 572. See further In re Ramon M., 22 Cal 3d 419 (1978): “We conclude that the defense of idiocy proffered by defendant in the present case is defined by the ALI [= Model Penal Code] standard, and that defendant's mental retardation constitutes a defense to criminal conduct if ‘a t the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Id at 428. See Murphy v. State, 54 P.3d 556 (2002) for a first effort of the state judiciary to define the concept of mental retardation after the Atkins decision.Google Scholar

¹⁴ See Art. 2 (1) of the Original Draft (1950) of the Convention that has been modified with protocol No. 6. Protocol No. 6 clearly states that the death penalty is abolished and that nobody shall be subject of a judgement of death. See also Art. 2 (2) of the proposed draft for a Charta of Fundamental Rights of the European Union (2000). Here, the Charta explicitly bans the death penalty for the European Union.Google Scholar

¹⁵ See e.g. German Constitution (“Grundgesetz”) Art. 102: “Die Todesstrafe ist abgeschafft.” BVerfGE 18, 112 (117) emphasizes the gravity the Federal Constitutional Court sees in this constitutional decision to abolish the death penalty.Google Scholar

¹⁶ Directly in the Atkins case by way of an amicus brief and, as discussed below, through Germany's case against the U.S. in the ICJ following on the execution of two German citizens in the U.S. The European battle against the application of the death penalty in the U.S. has also been led by non-governmental forces, including, as only one example, the Italian anti-death penalty coalition which has arranged to mark every American execution by illuminating the Coliseum in Rome.Google Scholar

¹⁷ Wainwright, Ford v., 477 U.S. 399. Here a prisoner, who at trial had not turned out to be insane while he committed his crimes turned insane while he was incarcerated. After a habeas corpus petition was filed on behalf of Mr. Ford that has been denied by a Florida District Court and the United States Court of Appeals for the 11^th Circuit, the Supreme Court revisited the issue and held: “The Eight Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane. Petitioner's allegation of insanity in his habeas petition, if proved, therefore, would bar his execution.” Id. at 410.Google Scholar

¹⁸ Supra note 2.Google Scholar

¹⁹ Virginia, Atkins v., supra note 3, at 2247.Google Scholar

²⁰ Dulles, Trop v., 356 U.S. 86 (1958), 100 – 101; Penry v. Lynaugh, supra note 2, 330 – 331; Atkins v. Virginia, supra note 3, at 2247.Google Scholar

²¹ Dissent of Justice Scalia following the Atkins decision (supra) at 2260; also Ford v. Wainwright, 477 U.S. 399 (1986), 405.Google Scholar

²² Virginia, Atkins v., supra note 3, at 2247; Penry v. Lynaugh, supra note 2, at 331.Google Scholar

²³ Georgia enacted the first statute prohibiting such executions in 1986. Maryland enacted a similar provision (see Md. Ann. Code, Art 27, § 412 (f) (1) (1989)). Additionally to the prior mentioned states, Congress enacted legislation in 1988 reinstating the federal death penalty. Here it was expressly provided that a sentence of death shall not be carried out upon a person who is mentally retarded. See 21 U.S.C. § 848 (the Anti-Drug Abuse Act of 1988); see further new federal legislation on that issue that again included a provision against the execution of mentally retarded individuals 18 U.S.C. § 3596 (c) (Federal Death Penalty Act of 1994).Google Scholar

²⁴ Kentucky, (1990), Tennessee (1990), New Mexico (1991), Arkansas (1993), Colorado (1993), Washington (1993), Indiana (1993), Kansas (1993), New York (1995), Nebraska (1998) and between 2000 and 2001 South Dakota, Arizona, Connecticut, Florida, Missouri, North Carolina.Google Scholar

²⁵ Virginia, Atkins v., supra note 3, at 2251.Google Scholar

²⁶ Id.Google Scholar

²⁷ Id., citing Enmund v. Florida, 458 U.S. 782, at 798.Google Scholar

²⁸ Id.Google Scholar

²⁹ Id.Google Scholar

³⁰ Id.Google Scholar

³¹ Id.Google Scholar

³² Cf. Virginia, Atkins v., supra note 3, at 2249 & 2251. First, the issue of culpability comes up with regard to the legislation the Court detected against the execution of mentally retarded offenders. The Court held such legislation “provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.” Id. at 2249. Second, culpability is mentioned in the context of the retribution theory of capital punishment. “With respect to retribution–the interest in seeing that the offender gets his ‘just deserts'–the severity of the appropriate punishment necessarily depends on the culpability of the offender.” Id. at 2251.Google Scholar

³³ Virginia, Atkins v., supra note 3, at 2252. See also J. McGee / F. Menolascino, The Evaluation of Defendants with Mental Retardation in the Criminal Justice System, in: The Criminal Justice System and Mental Retardation 55 (1992), 56. Here the authors label these impairments as a challenge for the legal system that greatly hinder the defendant's chances for a fair trial.Google Scholar

³⁴ Virginia, Atkins v., supra note 3 at 2252.Google Scholar

³⁵ See e.g. Lynaugh, Penry v., supra note 2.Google Scholar

³⁶ See supra B.I.Google Scholar

³⁷ Virginia, Atkins v., supra note 3, at 2249.Google Scholar

³⁸ Id.Google Scholar

³⁹ Brief for the European Union as Amicus Curiae in McCarver v. North Carolina, O.T.2001, No. 00-8727 (2001 WL 648609).Google Scholar

⁴⁰ This Latin term is defined by Justice Rehnquist as “(…) a phrase that literally means ‘friend of the court’ – someone who is not a party to the litigation, but who believes that the court's decision may affect its interest.” William H. Rehnquist, The Supreme Court, at 89. Amicus Curiae briefs are filed in many Supreme Court matters, both at the petition for Writ of Certiorari, and when the Court is deciding a case on its merits. Friend of the court briefs may provide valuable information about legal arguments, or how a case might affect people other than the parties to the case. See also Rule 29 of the Federal Rules of Appelate Procedure.Google Scholar

⁴¹ 533 U.S. 975.Google Scholar

⁴² Supra note 39, at 1.Google Scholar

⁴³ Id.Google Scholar

⁴⁴ Supra note 39, at 4.Google Scholar

⁴⁵ Supra note 39, at 4 citing a report for the U.N. Comission of Human Rights from 1996 (note 3).Google Scholar

⁴⁶ Supra note 39, at 5.Google Scholar

⁴⁷ Supra note 39, at 7. Note 9 shows two of those examples. South Africa abolished the death penalty 1995, Russia did the same in 1999.Google Scholar

⁴⁸ Supra note 39, at 7.Google Scholar

⁴⁹ Supra note 39, at 11. Here the brief refers to the Declaration on the Rights of Mentally Retarded Persons by the UN General Assembly and subsequent resolutions of the UN that share a common perspective protecting the fundamental human dignity of the mentally retarded person.Google Scholar

⁵⁰ Supra note 39, at 18.Google Scholar

⁵¹ Id.Google Scholar

⁵² Supra note 39, at 19.Google Scholar

⁵³ Brief for Morton Abramowitz et al. as Amicus Curiae in McCarver v. North Carolina, O.T.2001, No. 00-8727 (2001 WL 648607).Google Scholar

⁵⁴ Supra note 53, at 7.Google Scholar

⁵⁵ Supra note 53, at 10.Google Scholar

⁵⁶ Id.Google Scholar

⁵⁷ Supra note 53, at 12.Google Scholar

⁵⁸ Supra note 53, at 13.Google Scholar

⁵⁹ Supra note 53, at 14, citing Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (looking, among other things, to international practices in determining that the death penalty was unconstitutional as applied to a 15-year-old); Ford v. Wainright, 477 U.S. 399, 409 (1986) (“the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation”) (emphasis added); Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982) (noting that “the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe)”; Coker v. Georgia, 433 U.S. 584, 596 (1977) (citing Trop v. Dulles, 356 U.S. at 102, to determine that international practices regarding the death penalty for rape were relevant to “evolving standards” analysis); Trop v. Dulles, 356 U.S. at 102 (1958) (looking to international opinion to assess “evolving standards of decency” for Eighth Amendment purposes).Google Scholar

⁶⁰ Supra note 53, at 15.Google Scholar

⁶¹ Note the Court's quick reversal from Penry and the strong arguments made by the dissenters in Atkins itself.Google Scholar

⁶² Dissent of Justice Scalia following the Atkins decision (supra) at 2264.Google Scholar

⁶³ Id.Google Scholar

⁶⁴ Id.Google Scholar

⁶⁵ Id.Google Scholar

⁶⁶ Id, footnote 6.Google Scholar

⁶⁷ Id., at 2265.Google Scholar

⁶⁸ Id., at 2265.Google Scholar

⁶⁹ For information on the Court see http://www.icj-cij.org/.Google Scholar

⁷⁰ LaGrand Case (Germany v. United States of America), Judgment of June 27, 2001. See http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm for an online version of the decision. The decision is partly published in German in JZ (Juristische Zeitung) 2002, 91 – 99 (with an annotation of Hillgruber). Since the ICJ's ruling in LaGrand, the Mexican government filed its own complaint against the U.S. in the ICJ, asserting the same issues in the context of more than twenty of its citizens facing the death penalty in the U.S. (Mexico v. United States of America, http://www.icj-cij.org/icjwww/idocket/imus/imusframe.htm). The LaGrand Case was preceded in the ICJ by the Paraguayan case of Angel Breard (Paraguay v. United States of America, http://www.icj-cij.org/icjwww/idocket/ipaus/ipausframe.htm).Google Scholar

⁷¹ For a brief but sufficient summary of the facts see Karin Oellers-Frahm, Die Entscheidung des IGH im Fall LaGrand – Eine Stärkung der internationalen Gerichtsbarkeit und der Rolle des Individuums im Völkerrecht, in: EuGRZ 2001, 265 (2001), 265; also Thomas Weigend, Der Fall LaGrand – Völkerrecht bricht Strafprozessrecht, in: Festschrift für Klaus Lüderssen zum 70. Geburtstag (Hrsg. Cornelius Prittwitz, u.a.), Baden Baden 2002, 463, 463.Google Scholar

⁷² Lat. “you have the body”. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences.Google Scholar

⁷³ See http://www.un.org/law/ilc/texts/consul.htm.Google Scholar

⁷⁴ Article 36: “COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.”Google Scholar

⁷⁵ “A failure to follow state appellate procedure (as in the exhaustion of state remedies) that bars federal esp. habeas corpus review of a case in the absence of a showing of cause for and prejudice from the failure or sometimes in the absence of proof that the bar would result in a miscarriage of justice.” Quoted from Find Law, Legal Dictionary, http://dictionary.lp.findlaw.com/.Google Scholar

⁷⁶ This is only a short summary of the main requests. Additionally an assurance was requested by Germany that the U.S. will not repeat its unlawful acts. For the detailed requests of Germany see IGH, Urteil v. 27.6.2001 – Der Fall LaGrand, JZ 2002, 91, 91 or see the online version of the judgement at http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm., No. 10 (1) - (4).Google Scholar

⁷⁷ Hillgruber, supra note 70, at 95.Google Scholar

⁷⁸ Id.Google Scholar

⁷⁹ Id.Google Scholar

⁸⁰ Id.Google Scholar

⁸¹ Weigend, , supra note 71, at 471.Google Scholar

⁸² Weigend, , supra note 71, at 472.Google Scholar

⁸³ Oellers-Frahm, supra note 71, at 272.Google Scholar

⁸⁴ Id.Google Scholar

⁸⁵ Hillgruber, , supra note70, at 98 stresses this as a persuasive result. See Art. 41 (1) of the Vienna Convention on Consular Relations.Google Scholar

⁸⁶ Hillgruber, , supra note 70, at 94 (“David v. Goliath”).Google Scholar

⁸⁷ In fact, George Mason on September 12, 1787 noticed soon after the Committee of Style circulated copies of its draft of the constitution that the lack of a bill of rights is a “serious omission.” See Pauline Maier in her introductory note to: The Declaration of Independence and the Constitution of the United States (1998), at 34. See also for further details.Google Scholar

⁸⁸ For this problem see generally Naucke, Wolfgang, Gesetzlichkeit, und Kriminalpolitik, , JuS 1989, 862 – 867.Google Scholar

⁸⁹ Naucke, supra note 88, at 864.Google Scholar

⁹⁰ See e.g. Liptak, Adam, State Can Make Inmate Sane Enough to Execute, New York Times February 11 2003, Section A Page 1; also Heilung zur Hinrichtung – Todesstrafe trotz Geistesstörung, Frankfurter Allgemeine Zeitung February 12 2003, Page 9.Google Scholar

⁹¹ Atkins, Either under (supra note 3) or under Ford v. Wainwright (supra note 17).Google Scholar