57 DePaul L. Rev. 679 (2007-2008)
Taking Account of the Diminished Capacities of the Retarded: Are Capital Jurors up to the Task

handle is hein.journals/deplr57 and id is 689 raw text is: TAKING ACCOUNT OF THE DIMINISHED
Maria Sandys,* Adam Trahan** & Heather Pruss***
In 2002, the U.S. Supreme Court extended its Eighth Amendment
jurisprudence to preclude individuals who are mentally retarded from
being sentenced to death.' Relying on an evolving standards of de-
cency analysis, the Court concluded, in Atkins v. Virginia, that there
was no reason to disagree with the judgment of the legislatures that
have recently addressed the matter and concluded that death is not a
suitable punishment for a mentally retarded criminal.'2 Unlike previ-
ous analyses based on evolving standards of decency, the majority de-
voted little attention to the outcomes of actual sentencing juries. As
then Chief Justice Rehnquist remarked in his dissent, [i]n reaching its
conclusion today, the Court does not take notice of the fact that
neither petitioner nor his amici have adduced any comprehensive sta-
tistics that would conclusively prove (or disprove) whether juries rou-
tinely consider death a disproportionate punishment for mentally
retarded offenders like petitioner.'3 Similarly, Justice Scalia's dissent
echoed the lack of information regarding actual sentencing juries:
The Court's analysis rests on two fundamental assumptions: (1)
that the Eighth Amendment prohibits excessive punishments, and
(2) that sentencing juries or judges are unable to account properly
for the diminished capacities of the retarded .... The second as-
sumption-inability of judges or juries to take proper account of
mental retardation-is not only unsubstantiated, but contradicts the
immemorial belief, here and in England, that they play an indispen-
sable role in such matters .. .4
* Associate Professor, Department of Criminal Justice, Indiana University.
** Doctoral Student, Department of Criminal Justice, Indiana University.
*   Doctoral Student, Department of Criminal Justice, Indiana University.
1. See Atkins v. Virginia, 536 U.S. 304, 321 (2002).
2. Id. (internal quotation marks omitted).
3. Id. at 324 (Rehnquist, C.J., dissenting).
4. Id. at 349 (Scalia, J., dissenting) (emphasis in original).

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