*1
stated”).
otherwise
The ALJ did not err in
the award even the Commission’s manager claims division had stated that the Arizona, The State of Real manual any was not relied on “that much Party in Interest. more.” But nothing shows the ALJ’s 2No. CA-SA 2012-0070. arbitrary determination capricious. or 23-1044(B)(22) Section provides discretion Arizona, Appeals Court of award, long the amount of the as it does 2, Department Division A. eighteen not exceed months: The commis May may sion “allow such compensation sum for just, thereof as it deems in accordance with submitted, proof period for a of not to Here, eighteen
exceed months.” the ALJ
considered the evidence and observed the
scarring body on Freeman’s and found that
Freeman permanent sustained scar. evidence,
Based on this properly the ALJ $2,069.89
exercised his discretion to award
per month for twelve months. The award limit,
was within the nothing
precluded consulting the ALJ from the visual
observation scale in the 1998 Claims Process
ing in determining Manual the award. The
ALJ did arbitrarily capriciously not act
determining the award of benefits to Free
man.
CONCLUSION
¶ 13 We affirm the award of benefits to
Freeman. GOULD,
CONCURRING: ANDREW W.
Acting Presiding Judge, and JOHN C.
GEMMILL, Judge. *2 Lefferts, County
Lori Pima J. Public De- By fender Bruner and Dawn Sean Priestman Tucson, Attorneys for Petitioner. LaWall, County Attorney Barbara Pima Lines, By Attorneys Jacob R. Tucson for Party Real in Interest.
OPINION HOWARD, Judge. Chief action, statutory special 1 In this challenges respon- Roosevelt establish, judge’s ruling dent that he failed to evidence, convincing clear and an intellec- disability rendering ineligible tual him for the prosecution death penalty pending in his murder. Our consideration of the merits of mandatory. petition Williams’s See A.R.S. 13-753(1). following reasons, For the we deny relief.
Background
a matter of
As
and con
law, person
stitutional
convicted
capital
of a
offense
from an
who suffers
intellectual dis
ability, previously known as mental retarda
tion, may
not be sentenced to death.
13-
753(H);
Virginia, 536
Atkins v.
U.S.
than appointed experts additional and scheduled an eviden- ¶ hearing 6 At a conducted in ac tiary hearing to determine whether Williams cordance with “the defendant has suffers from an disability intellectual and proving disability burden of intellectual ineligible therefore is for a death sentence. convincing clear and evidence.” 13- 13-753(D). § 753(G); (Grell II), see also v. State Grell 4 After evidentiary hearing, (2006) (stat the re- Ariz. 135 P.3d spondent judge found Williams had “met proof requirements his ute’s burden of constitu that, showing currently, burden of tionally permissible). least he We defer to the re presents significantly with sub-average gen- spondent judge’s findings they factual if “are eral intellectual functioning” on supported by “[t]wo based clearly the record not and erro IQ valid test sixty-eight scores” of and seven- neous.” Rosengren, State v. ty neuropsychological and the Moreover, assessment (App.2000). “
performed by expert defense judge James Sulli- a trial ‘has broad discretion in deter van.2 But respondent mining weight further found credibility given and Williams had “not met showing his burden of mental health presented evidence’” in an impairment that the mental existed eoncur- hearing. disability”). change Consistent with seventy, ninety-five IQ this in ter- had a full-scale minology, § 13-753 was amended 2011 to percent IQ” confidence that his "true would fall disability” substitute “intellectual tardation” with no substantive for "mental re- sixty-seven seventy-five. Psycholo- between changes gist Gorgueiro Serena administered the Stan- Laws, 89, § statute. See 2011 Ariz. Sess. ch. reported ford-Binet 5 and Williams a full- sixty-eight, IQ range sixty-five scale with a
2. Sullivan administered the Wechsler Adult Intel- seventy-three. (WAIS-4), ligence reported Scale 4 (9th 1992), tion, Supports ed. Doerr, Systems of quoting P.3d at (1998). Association on the American published (AAMR),3 stating that including ques Mental Retardation legal questions, We review ¶¶ 22, of “subaver- novo, require evidence law, definitions id. both de tions of constitutional signifi- functioning ... age [and] upset legal determina will not but we adaptive skills such limitations in meet a cant insufficient to evidence was
tion that
self-care,
communication,
and self-direction
we can
convincing standard unless
clear and
age [eigh-
manifest before
that became
no one could
say
matter of law that
“as a
S.Ct. 2242.
& n.
Id. at 318
teen].”
... was
reasonably find that
the evidence
pro-
when it
it chose
Adopting
approach
convincing.”
Groth
than clear
less
*4
1065,
who are in-
of offenders
102, 103,
hibited execution
Martel,
P.2d
612
126
“
West,
sane,
the task
State[s]
left
‘to the
the Court
226
(App.1979); see also
1066
ways
1188,
appropriate
to enforce
559, ¶ 15,
developing
of
upon
exe-
[their]
restriction
sufficiency
the constitutional
(“[Q]uestion
of the evidence
of
”
sentences,’ noting
“statutory
law....”).
that
cution of
one of
in
retardation”
states
definitions of mental
Atkins,
United States
7 In
execution
legislatively
prohibited
had
that
mentally
executing a
retard-
held that
Court
identical,
generally conform
“are not
but
Eighth Amend-
violates the
ed offender
by the
promulgated
definitions”
the clinical
punishment.
unusual
ban on cruel and
ment’s
22,
at 317 & n.
APA and the AAMR. Id.
Court
2242. The
536 U.S. at
S.Ct.
Wainwright, 477
v.
quoting
S.Ct.
Ford
on a
categorical rule based
announced this
399, 416-17,
91 L.Ed.2d
106 S.Ct.
U.S.
consensus,”
by prohibitions
evinced
“national
Atkins).
(1986) (alterations in
mentally
by
legislatures,
that
enacted
state
“categorically less cul-
persons
retarded
are
that had
among the states
9 Arizona is
average
and more
pable than the
criminal”
the execution
legislation prohibiting
enacted
Id. at
wrongful
execution.
vulnerable
mentally
offenders before Atkins
retarded
According
2242;
2242.
122 S.Ct.
at
was decided.
Id.
Court,
dis-
(Grell I),
57, 38,
the extent there is serious
205 Ariz.
v.
State Grell
“Mo
agreement
(2003);
the execution of
about
see also
offenders,
determining
it
is in
Laws,
by
§ 2.
ch.
As summarized
Sess.
Id. at
court,
which
are in fact retarded.”
offenders
supreme
our
317,
¶8
defen-
experts
in which
examine
The Court cited clinical definitions
community, nationally
“using
Diagnostic
dant
current
found in the
mental retardation
develop-
culturally accepted physical,
and
Manual of Mental Disorders
and Statistical
mental,
(4th
2000) (DSM-TV),
intelligence test-
psychological and
published
ed.
(APA),
deter-
ing procedures,
purpose
for the
Psychiatric
and
American
Association
Definition,
mining
the defendant has mental
whether
Retardation:
Classifica-
Mental
by significant limitations both in intellectual
Intellectual
ized
3. Now the American Association on
(AAIDD),
Developmental
functioning
as ex-
Disabilities
see su-
and in
behavior
and
social,
pra
practical
pressed
conceptual,
note 1.
”
originate
age eigh-
adaptive skills’
that
before
"
description
The
4.
continues to be accurate.
This
teen,
using
explaining
these
'three broader
diagnostic criteria
AAIDD since has modified
social,
conceptual,
practical
domains of
"
required
least 2 of
'limitations in at
"
”
identify adaptive limitations is
'more
skills’
specific
AAMR's]
in [the
the 10
skill areas listed
existing
measures
consistent with the structure
”
had been "the model for
1992 definition’ and
body
on
behav-
and with the
of research
approach
APA.” United
still used
”
852, 879, quoting
Hardy,
F.Supp.2d at
ior.'
(E.D.La.
Hardy,
F.Supp.2d
States
10th Edition at
78.
AAMR
AAMR,
2010), quoting
tion, Classification,
Retardation
Mental
Defini-
Systems
Supports 73
13-703.02, A.R.S.,
I,
cited in Grell has
5. Section
2002)
(10th
Edition]
ed.
AAMR10th
[hereinafter
Ariz. Sess.
as
13-753. 2008
(alteration
been renumbered
Hardy);
also
536 U.S.
see
Laws,
the cur-
We refer here to
ch.
n.
with the
set forth in
id. n.
solely
of mental retardation based
4, and remanded the case for a determination
proof
specific
on
deficits
or deficits
Grell,
of whether
who had been sentenced
only two areas.
effect,
before the
“mentally
statute took
mind,
Id. With this standard in
the court
retarded and
ineligible
therefore
to receive
found the evidence
“support
was sufficient to
penalty” pursuant
the death
to constitutional
*5
finding
a
that Grell was able to function at a
principles
by
Supreme
announced
the
Court
higher
¶¶
‘significant
level
than that of
impair-
id.
41-42.
”ment’ and concluded the trial court did not
¶
remand,
appeal
10 In an
after
our su-
clearly
finding
err in
Grell had “failed to
preme
court affirmed the trial court’s
prove
by
mental retardation
clear and con-
that Grell had failed to establish mental re-
¶
vincing evidence.” Id. 63. The court also
by
tardation
convincing
clear and
evidence.
found Grell was
by
entitled to be resentenced
¶
II,
516, 63,
Grell
212 Ariz.
subject to the ¶¶ 3-4,10. and, adaptive be- the issue of Williams’s on Id. mental retardation.” havior, testi- psychologist Ricardo Weinstein emphasized in III that The court Grell Sergio psychologist fied the defense questions “inquiry differed]” its Each of for the state. Martinez testified II, in which it had deferred raised Grell report provided also a written experts these “that Grell determination the trial court’s summarizing evaluation and conclusions. his convincing evi- proved clear had not psy- “beyond a reasonable Sullivan concluded deficits in significant dence that he “ presently certainty” that chological Williams ‘[reasonable behavior” because neuropsycho- pronounced and authentic “has interpret as to how to minds differ [could] ” impairment.” He of- logical psychiatric ¶¶ 9-10, quot- presented.’ Id. the evidence similarly confident conclusion re- fered no II, 135 P.3d at ing Grell impairments or garding etiology of these III). (alteration In contrast Grell clinical or statu- whether met other explained the court it inquiry in Grell its disability, but tory criteria for an intellectual “independently III to required in Grell likely” “docu- “quite it that Williams’s found presented in the 2009 the evidence review ... a direct dysfunction cerebral mented resentencing,” without deference insult,” such as his moth- prenatal result of decisions, “to determine jury’s findings or during pregnancy, “as er’s substance abuse proved mental retardation whether Grell psycho- exposure well to severe childhood Id. preponderance of the evidence.” physical form of logical trauma further noted its determination The court abuse.” concluded sexual Weinstein preponderance on a III had been based of Intellectu- Williams “fulfills the definitions demanding” evidence—a “less stan- Retardation) (Mental contained al Disabilities convincing proof “than the clear and dard of *6 13-753(K) § in ... as well as the ones con- employed in II and evidence standard” [promulgated ... and tained in the DSM-IV finding,” pursuant “required pre-trial for a by] the AAIDD.” Martinez concluded 13-753(G), “that mental retardation barred meet the criteria” in Williams “does not Finally, penalty.” Id. imposition of the death 13-753(K)(3), finding “no evidence” to presented that Grell had the court observed experienced significant- demonstrate that “he “substantially convincing— more more —and general functioning ly subaverage intellectual adaptive deficits” at his 2009 evidence of skill along significant impairment with hearing presented resentencing than he age functioning” eighteen. before the of hearing held on the sole issue of at the 2005 and there- he was whether ¶ review, respon- In the order under ¶ ineligible death sentence. Id. 11. fore for a correctly “determi- judge dent identified the “whether there is sufficient native issues” as ¶ II, our review 14 Like court Grell func- evidence that [Williams’s] respondent judge is limited to whether the sub-average tioning significantly was and “clearly concluding faded Williams err[ed]” ‘adaptive signifi- behavior’ was whether his disability by clear prove an intellectual so, cantly if the evi- impaired, and whether evidence, defer convincing and and we must convincing clear and that he suf- dence is if respondent’s determination “reason- age conditions] fered from before [these by ably supported evidence.” Grell [eighteen].” of 709; P.3d at see also Cellar, Phx., City Inc. v. Book of respect to intellectual function- 17 With (in (App.1983) 678 P.2d ing, respondent judge found “[Williams’s] action, does not by special review intelligence quotient [seven- is below current weigh but determines whether suffi- evidence However, sub-average.’ ty], ‘significantly his and wheth- supported evidence decision cient IQ [twenty] years ago, at likely higher was discretion). properly er trial court exercised current level ‘absolute- age [eighteen]. The it, ¶ Here, ly,’ put Dr. is lower because of experts at the Sullivan three testified and wor- Neuropsyeholo- drug and alcohol abuse evidentiary hearing: [Williams’s] Similarly, the re- sening mental illness.” the defense gist Sullivan testified for James found, present he spondent [his] ... lower than level of function when “[Williams] does ‘significantly impaired now with function’ as graduate [high was from school] able to neuropsycho- Dr. shown Sullivan’s recent this college,” with source of “[t]he attend logical testing,” but “the does not evidence probably of decline ... a combination most that, support governing a as the stat- ongoing worsening abuse and men- substance mandates, convincing ute there is ‘clear and And, directly tal when asked about illness.” adaptive behavior [Williams’s] evidence’ that drug “extensive effect of Williams’s deficiency, was affected” this intellectual scores, alcohol on his current test abuse” eighteen. age either before or after the “testing Sullivan testified Williams’s scores [absolutely have been than would] better To dis establish an intellectual they pick[ed] now” had he right are “never ability was re under Thus, Sullivan, up an drug drink.” convincing quired to show clear and evi assessing cognitive dis- expert functioning, IQ he an dence that suffered “the onset of agreed opinion with Weinstein’s age seventy or] below ... before the [of drugs an Williams’s use and alcohol as Schriro, [eighteen].” Moormann v. F.3d significantly have adult “would not reduced (9th Cir.2012) (Arizona they cognitive his overall abilities” as existed execution, stay where Court’s denial eighteen. age before the proof pertained offer of to de defendant’s clining IQ post-conviction, as adult not con observed, respondent judge 20 As the trary application unreasonable of clear to or opinion Sullivan’s that Williams’s test scores law); ly federal established see also higher, by would have been some incalculable Arellano, amount, graduated high he when school (“The provision § 13-753] re [in full supports a conclusion that Williams’s symptoms quiring that of mental retardation IQ higher seventy age scale than at the age eighteen occur both applies before el eighteen, only declined to its current significantly of mental retardation: ements during years, level his adult due to Williams’s subaverage intelligence im significantly “drug abuse and worsening and alcohol men- behavior.”). paired report Sullivan alone, tal Based on illness.” this evidence IQ currently ed Williams’s full scale is sev reasonably respondent could have found enty, overall “consistent borderline convincing— than clear and evidence less *7 cusp function” and on the defini of Arizona’s and thus insufficient —to establish that “[significantly gener subaverage tion of the significantly Williams suffered from subaver- functioning” required al intellectual to estab age general an functioning intellectual disability pursuant lish an intellectual to onset that “before the [he] occurred reached (5). 13-753(K)(3) § and 13-753(K)(3). age eighteen.” of ¶ Although Sullivan stated Williams’s ¶ respondent judge’s 21 The determi reported substance abuse and illness support adult, nation finds further in Martinez’s as an considered either alone or combination, opinions perform that “was able to Williams could not the full account for higher adaptive at levels of and impairments intellectual during extent of Sullivan found functioning tests, in adolescence and adulthood” neuropsychological he also testified drugs when he from alcohol question things “no abstained and there was that these two together and that “no evidence” combined his over demonstrates [have] lessened] time, all of Williams the intellectual and level function” over to an [sic] required quantify.7 “prior could Similar- behavior extent Sullivan not deficits 13-753 ly, reported age performance eighteen.” Sullivan Williams’s to the The absence of clear likely “quite convincing establishing on recent achievement tests is evidence abuse, abuse, quantify physical 7. When if he could relative of the the [and] asked sexual potential effects of substance abuse and mental illness in útero insults from the mother” accounting for Williams’s current level of intel- "carry likely would more of the variance” with not, functioning, lectual Sullivan said he could impairments, respect greater due to many varia- [unknown] because there were "too "plasticity” during brain childhood. history bles.” He added that "the and the issues 920 P.2d Carey, Ariz. IQ seventy or below had an Williams a suffi- eighteen provided age before (App.1995). pre-trial claim deny cient basis to Williams’s ¶ essentially argument 25 Williams’s Moormann, 13-753(G). under court an supreme our begs question ¶ 474, 21, 648-49; Arellano, F.3d at II, when it concluded swered P.3d at 1020. prove mental “requiring the defendant challenges respondent Williams convincing evidence by clear and retardation “retrospective analy- rejection
judge’s hearing does not in the initial retardation Weinstein, opinion whose performed sis” standards.” Grell violate constitutional part interviews he conducted is based in on at 705. In a 135 P.3d knew Williams people who with seventeen this, intel where a defendant’s case such as includ- age eighteen, before and after the functioning were not lectual and members, family ing family and extended child, where such he was a tested when friends, supervi- work former classmates unavailable, trial test results are sors, In high administrator. and a school from other whether inferences must consider memories of reporting their addition of concur evidence establish that the onset ages, mother at different Williams Williams’s areas, to meet in these sufficient rent deficits had used alcohol told Weinstein she before the requirements, occurred while tripped some stairs drugs and had on age eighteen. See defendant reached the Williams, and other interview- pregnant with Arellano, a hard reported had landed on ees IQ re (noting “pre-age-eighteen test an infant and had dropped floor when available”). ap That always sults are not sexually abused as a physically and been judge respondent did pears to be what child. Nothing suggests in the record this ease. found, “Dr. respondent judge The evi respondent categorically excluded per- not methodology ... ... is Weinstein’s support might offered in of an dence that be suasive____ particular, Dr. Weinstein’s claim; to the con older defendant’s supported ‘history1 suspect. largely It is is order, painstak trary, respondent his independent or verifi reports. biased No presented ingly summarized the evidence supports According it.” able evidence found certain and set forth the reasons he Williams, analysis find that such an “[T]o persuasive. more or less evidence convincing standard cannot meet clear denying mentally retarded tantamount to out, pointed respondent judge 26 As the substantially older than individuals who are prob- identified both Weinstein and Sullivan by At [eighteen]” protection afforded reliability retrospective anal- lems with the kins, disability] [their “because Moreover, yses. explained Sullivan that he prove.”8 impossible would be and childhood abuse regarded in útero insult *8 factors,” rather than “causative fac- as “risk ¶ required 24 a trial court is to evalu- But present con- responsible for Williams’s tors” weight credibility of the evidence ate the dition, to because he had no documentation support finding a of mental re- produced to reports that mother ¶ corroborate Williams’s 58, 135 tardation. 212 drugs pregnant or had used and alcohol while And, appeal, finding of fact P.3d at 708. on as a child. that Williams had been abused if clearly cannot be erroneous substantial testified, ... had birth rec- “[I]f Sullivan we it, though supports evidence even substantial baby he was born crack ords show v. Ber- conflicting evidence also exists. State laying on the line mother it out 617, 623, we his P.2d 856 ryman, 178 Ariz. 875 actually happened being what honest about (App.1994), citing Moore v. Title Ins. Co. of born,] then[, they ... Minn., 408, 413, when Williams was factors, right now I causative reweigh the would become (App.1985). do not “We light Sullivan’s just don’t know.” of reach the to decide if we would evidence veracity reports, of these fact.” State doubts about conclusions as the trier of same presently thirty-nine years old. 8. Williams say respondent clearly supports finding
we per- cannot erred denee” reasonable “[i]f history in sons could differ physical of sexual and as to whether evidence issue”); Mercer, insults, establishes a fact abuse and in útero obtained from 1, 2, (1970) ArizApp. family, 473 P.2d Williams and his less than clear and (conflicts testimony do not render evidence convincing evidence that Williams suffered insufficient); Canez, see also State v. 13-753(K) impairments required by be- (2002) (ac- 42 P.3d age eighteen. fore the of cording “great deference” trial court’s res- challenges 27 Williams nonetheless —as conflicting psychological olution of evidence “illogical contrary to the evidence”—the by experts). offered respondent judge’s conclusion that Williams Branker, Quoting Nicholson v. failed to required show the onset of the F.Supp.2d (E.D.N.C.2010), impairments age eigh- occurred before the requirement Williams maintains there is “no teen, only and he “the plausible asserts ex- that [a defendant] show he had scored [sev planation for pre- [Williams’s] condition is enty] IQ] given prior below on test a[n natal insult combined with physical childhood age [eighteen]” to establish his mental and sexual Specifically, abuse.” deficiency [eighteen] “manifested before testimony cites the of Sullivan and Weinstein years age.” suggest We do not otherwise. support proposition that “unless there Arellano, See 143 P.3d at explanation is a credible person for how a agree 1020-21. We with those authorities functionally could become age retarded after that, concluding IQ when no childhood tests [eighteen], ... it is assumed that the condi- performed, were subaverage intellectual prior age. tion occurred to” that functioning age eighteen prop before the referring 28 Williams is to Sullivan’s tes- erly may be inferred from other evidence of timony “neuropsychological impairments intellectual functioning, per such as school presumed are neurodevelopmental to be See, Quarterman, e.g., formance. Rivera v. occurring “early nature” and on in the life (5th Cir.2007). 505 F.3d But the span proven until adequate otherwise” an respondent judge required was not to infer explanation medical damage for brain occur- suffered, child, that Williams had as a adult, ring as an such as a traumatic brain the level of impairment required intellectual stroke, injury, or certain kinds of substance disability to establish an intellectual under abuse. But Sullivan also testified Williams’s law, particularly light Arizona of Sullivan’s substance abuse a “contributing factor” opinions contrary. Martinez’s to the to his impairment and accounted State, Pizzuto v. 146 Idaho portion for some currently of the deficits (trial (2008) considering IQ reflected in his full-scale test score of required claim IQ not to infer defendant’s thus, discussed, seventy; already accord- during eleven-year “had not decreased Sullivan, ing IQ Williams’s test scores period eighteenth birthday from his to the higher would have been seventy than in late test[,] IQ date of his especially light ... early adolescence and Similarly, adulthood. opinions experts of [his own] that his Martinez concluded Williams’s current full- long history drug epilepsy abuse and his IQ seventy scale score of did not evince an negatively would have impacted his mental onset of prior age that condition functioning”); Vandivner, Commonwealth v. eighteen, particularly where there was “no 599 Pa. 962 A.2d *9 routinely indication” “per- Williams had (insufficient age evidence of onset before significantly formed in impaired range of eighteen expert injuries where testified head functioning” intellectual public while in and occurring other conditions in adulthood expert opinions school. These constitute rea- “led to a in cognitive capacity”; decline re supports respon- sonable evidence that fusing categorical prohibition extend other, judge’s findings, dent even if contra- against execution of retarded to dictory may evidence be found in the record. capital other defendants with mental defi 567, 573,169 McCurdy, See State v. 216 Ariz. ciencies absent evidence of “national consen (“substantial Atkins). (App.2007) P.3d evi- sus” found in Davolt, ¶ inadmissible. See State respondent we conclude 30 Because ¶ (degree of P.3d finding failed to err in Williams
judge did not
goes weight
of testi-
expert’s qualifications
convincing
he
evidence
clear and
establish
admissibility).
mony,
general intellec-
not its
subaverage
significantly
had
eighteen,
functioning
age
before
tual
¶
opportunity to
had a full
33 Williams
ruling that
cer-
“[i]t
review his
we need not
knowledge and ex-
Martinez on his
examine
”
suffered
tainly is not ‘clear’
that Williams
in the
we see no clear error
perience, and
adaptive be-
significant impairments in
this testi-
respondent judge’s consideration of
havior,
age
before or after
either
P.2d at 4
mony. Carey,
Ariz. at
Snelling, 225
eighteen. See State v.
reweigh expert
does not
(reviewing court
(2010) (when
409, 417 n. 8
n.
236 P.3d
Wassenaar,
testimony);
need not reach
dispositive, court
one issue
(re-
¶
(App.2007)
issues). However, we will address
other
in
conflicts in evidence
viewing court resolves
raises, because
briefly the issues Williams
judgment).
sustaining
favor of
arguments are related to this
many of his
¶ Citing
guidelines,
AAIDD assessment
determination.
the re-
asserts Martinez and
Williams also
¶
adaptive
finding
the evidence of
upon
spondent
judge
[Williams’s]
“relied
convincing,
than clear and
impairments less
opposed
defi-
adaptive strengths,
[his]
judge
respondent
noted
Williams
cits,
proper consideration in an
which is not a
school,
bus,
stayed out
traveled
“went to
analysis,”
“mental-
adaptive behavior
because
time,
trouble, graduated from school on
many
ly
people
capable
are
employed,
job
at one
college,
and was
II,
went
in
adaptive functions.” But
Grell
our
respondent appears
years.”
several
The
emphasized
supreme court
opinion that
to have relied on Martinez’s
definition,
in overall
“while similar
adaptive
in
experienced
difficulties Williams
meaning,
not the same as” clinical defini-
did not rise to the level of
behavior
tions,
“requires
and
an overall assessment of
support
impairment” required to
“significant
society’s
ability to meet
ex-
the defendant’s
disability
under Ari-
of intellectual
him,”
“proof
specific
defi-
pectations of
not
13-753(K)(3).
zona law. See
II,
cits.”
Grell
case,
at 709. As in this
the decision under
suggest
first seems to
32 Williams
largely
II “was based
on
review
Grell
judge
respondent
abused his discretion
testimony,”
“the trial court deter-
expert
testimony;
relying
report
Martinez’s
on
expert
mined that the State’s
was more cred-
only a
Martinez conducted
“cur-
he contends
Deferring
to the court’s
ible.” Id.
sory
intellectual
assessment” Williams’s
weight
determining
broad discretion
only “margin-
adaptive functioning and is
credibility
expert testimony, our
afforded
compared to
ally qualified” when
Sullivan
ruling.
supreme court affirmed the court’s
But
does not con-
and Weinstein.
Williams
Id. 63.
unqualified or his testimo-
tend Martinez was
judge’s reasoning
requirements
respondent
35 The
ny
incompetent
under
ruling
appears consistent with the
af-
Although
asserts
here
13-753.
Williams
adopt a
opinion firmed in
and we decline to
had “no foundation” for his
Grell
Martinez
analysis
with that
that,
intellec-
standard for
inconsistent
had
suffered from an
requires.
it
See id.
disability,
func-
decision or the deference
his deficits
tual
¶¶
(state countered evidence of Grell’s
would have
tioning and
behavior
school,
“with
public
poor
academic and social behavior
been identified while he was
themes: no doctor before defense
had once been em-
three main
Martinez testified he
diagnosed
as hav-
expert ... had ever
psychologist. Williams is
ployed as a school
retardation;
badly
behaving
does
ing
knowl-
professed
that Martinez
no
correct
deficits;
necessarily indicate
policies employed by
particu-
not
edge of the
attended,
he wants
and Grell can behave himself when
but
public
lar
schools Williams
*10
Nacchio,
9,
so”);
214 Ariz.
might affect
to do
Grand v.
although this limitation
¶ 19,
763,
evidence,
(App.2006) (declining
147 P.3d
771
it does not render it
weight of the
13-753,
apply
might “effectively
§
doctrines that
nul
dance
applying
that statute’s
court);
lify”
adopted by supreme
proceeding
test
see definitions in the
it mandated.
(K).
Workman,
1148, 1172
13-753(G),
also Hooks v.
689 F.3d
The dissent maintains
(10th Cir.2012) (AAIDD’s
respondent
precisely
“clinical standard”
erred
because he
considering
strengths
deficits rather than
“conformity
statutory
ruled in
with the
stan-
dard,”
a
required
“not
constitutional command” nor
rejected
when he instead
have
should
Atkins);
States,
Ortiz v. United
664 F.3d
statutory
definition
favor of a “clinical
(8th Cir.2011) (Atkins
1151, 1168-69
did not
promulgated by
definition”
the APA or
“delegate[]
¶¶
community
to the scientific
53,
AAIDD. See
61-62.
infra
finding
of whether an individual is
¶38 First,
above,
as addressed
we con
retarded”;
rejecting
limiting
standard
as
supreme
clude our
considered
re
sessment to
“[c]on
deficits because
jected
nearly
argument
identical
in Grell
strengths” may “provide
sideration of ...
¶¶
II,
516,
60-63,
212 Ariz.
¶39
that still
use
Thus,
ap-
states
supreme court
twenty-three have stated or
“leaving alty,
interpreted Atkins as
courts
pears to have
mental
not define
implied
mental retardation
that Atkins did
the definition of
states,”
against
retardation,
exe-
to indi-
prohibition
left that task
such that
but instead
on the
mentally
“depends
Appendix 1. The
cuting the
retarded
vidual states. See infra
retardation.”
of mental
on the
spoken
definition
not
state’s
ten states have
other
¶
193, 149,
141
Roque,
v.
213
State
define men-
Many state statutes also
issue.
(2006);
212
disability in
retardation or intellectual
tal
(knowing that “states had
at 705
AAIDD,
AAMR,
vary
ways that
proce-
develop their own
already begun to
Appen-
See
and DSM-IV definitions.
infra
dures,
places the
in different
and had drawn
above,
have
several courts
dix 2. As noted
retardation
establishing the mental
line for
rejected
proposition that states
expressly
execution,” Supreme Court
would bar
that
or
strictly
to clinical definitions
must
adhere
for
craft their laws
states ...
free to
“left
supra
See
35.
assessment standards.
meet the
determining
[na-
defendants
which
Third,
among
Arizona’s statute
standard”).
consensus
tional]
was decided and
enacted before Atkins
those
¶40 Second, although
asserts
the dissent
the “national
to be evidence of
was found
retar
mental
]
“the Court Atkins defined
[in
mentally
offenders
that
consensus”
universally
diagnostic criteria
dation
Atkins,
executed. See
should not be
¶ 51,
clinicians,”
posi
this
accepted by
infra
314-15,
233
Supreme
delegated
Accordingly,
Court would have
44
we conclude we are
by
supreme
pronounce-
bound
our
court’s
interpretation
Eighth
of the
Amendment to
ments on this issue. The conclusion that
Rather,
legisla
clinicians.
deference to state
may
prohibition
states
enforce the
in Atkins
generally
tion that
clinical
conforms to
stan
by implementing
“generally
definitions that
recogni
dards is consistent with the Court’s
standards,
conform” to clinical
536 U.S. at
“‘[cjourts
representative
tion that
are not
”
22,
2242,
317 n.
122 S.Ct.
as Arizona’s statu-
legislators,”
bodies’ and do not act “as
does,
tory
22,
definition
id. at
317 n.
that,
system,”
“under our federal
the defer
2242,
122
support
S.Ct.
finds further
in a
legislatures
ence owed
...
“state
is enhanced
later statement
the United States Su-
specification
punishments
where the
of
preme Court and in each state court case
concerned,
peculiarly questions
for ‘these are
Therefore,
that has addressed the issue.
we
”
legislative policy.’ Gregg
Georgia,
v.
428
accept
position.
cannot
the dissent’s
153, 174-76,
2909,
U.S.
S.Ct.
96
49 L.Ed.2d
mean,
sug
45 We do not
as the dissent
(1976),
States,
quoting
859
Dennis v. United
gests,
that the
Court “intended to
494, 525,
857,
341 U.S.
71 S.Ct.
ultural independent of condition 42; ”), Long, definitions ting’ quoting DSM-IV Indeed, the state (App. both clinical standards. 2004) (“This concede that substan- *13 majority appear decisions to court is bound and has no au- Supreme Court of mental retarda- the Arizona tive definitions minimum, its must, to follow thority generally overturn or refuse conform to tion decisions.”). definition of the condi- prevailing the clinical Eighth Amend- properly enforce
tion
the men-
on the execution of
ment restriction
Disposition
tally retarded.
observed,
¶46
supreme court has
As our
may differ as to how to
minds
“Reasonable
supreme court has observed
48 Our own
this
presented,” but
interpret
the evidence
statutory standard for evaluat-
that Arizona’s
relief from the
provide a basis for
does not
functioning
adaptive
devi-
ing impairment of
II, 212
judge’s ruling. Grell
respondent
II, 212
from the clinical standard. Grell
ates
¶ 63,
this
P.3d at 709. On
did
P.3d at 709. It
so
record,
clearly
say
respondent
we cannot
addressing
evidentiary
an
context of
by
prove
failed to
erred in
exclusively under
and addressed
claim raised
convincing
that he is men-
clear and
evidence
¶¶
highest
Our
state law. See id.
58-63.
disability.
tally
an intellectual
retarded or has
considered,
purported
neither
nor
court has
13-753(G).
deny
Accordingly, we
re-
§See
address,
considerably
complex
more
lief.
question of
constitutional law raised
federal
whether,
by
spite
of our stat-
this case:
CONCURRING: J. WILLIAM
evaluating
varying
standard
for
ute’s
JR.,
BRAMMER,
Judge.*
functioning,
our stat-
that section of
diagnos-
substantially conforms to clinical
ute
ECKERSTROM, Presiding Judge,
and, therefore, Eighth Amend-
tic criteria
dissenting.
ment standards.10
Virginia,
the Court set
47 In Atkins
below, Ari-
49 As shall be demonstrated
on the
forth a “substantive restriction”
evaluating impairment in
zona’s standard for
states, prohibiting the execution of the “men-
practical ap-
adaptive functioning departs, in
321, 122
tally
536 U.S. at
S.Ct.
retarded.”
markedly
parallel
from the
clini-
plication, so
clear,
doing,
2242.
In so
the Court made
precludes
diagnosis
it
cal standard that
expressly
implicitly,
that the cate-
both
of mental retardation for most of those who
holding
gory
protected
its
would
of those
be so defined
clinical standards.
by would
mentally retarded
be those classified as
reason,
only
I can
conclude that
For that
Although
holding
clinical standards.9
determining
Arizona’s standard
respective states some sub-
provides
also
the constitutional
leeway
enforcing retardation fails to enforce
procedural
stantive and
Atkins,
restriction,
and therefore
language
no
in restriction set forth
this constitutional
*
Appeals
quirements
in Atkins. He thereafter
judge
Court of
set forth
A retired
of the Arizona
assigned
judge
respondent
sit as a
on the
specifically complained
authorized and
that the
more
Two, pursuant
Appeals,
to Ari-
Court of
Division
judge's evaluation of the evidence of
zona
Court Order filed December
functioning departed from clinical standards.
Moreover,
provided
oppor
parties were
an
both
2012.
out,
majority correctly points
"intellec-
9. As the
specific question
tunity
we address
to address the
disability”
preferred
is now the
term for
tual
rate,
supplemental briefing. At
we
here in
analytical
For the sake of
"mental retardation.”
ignore
error when we find it
do not
fundamental
here,
presented
clarity
specific
I
as to the
issue
Musgrove, 223 Ariz.
in the record. State v.
¶ 4,
employed in Atkins.
have elected to use the term
appli
(App.2009).
Because
definition of mental retarda
cation of the correct
Although
agree
majority
that the
I
designed
goes
proceeding
to the core of this
tion
squarely raise this claim in
defendant failed to
Eighth
de
Amendment restriction
to enforce
court,
petition to this
he did maintain
his initial
generally
Atkins,
error here is
scribed in
the constitutional
court's consideration
that the trial
prejudicial.
Eighth
re-
fundamental and
Amendment
the evidence violated
Eighth
areas,
specific
runs afoul of the
Amendment to the
two or
namely
more
skill
“communication, self-care,
United States Constitution.
living,
home
so-
skills,
cial/interpersonal
community
re-
use
prohibiting
In
the execution of the men-
sources, self-direction, functional academic
tally retarded,
employed
the clini-
skills, work, leisure, health,
safety”;
cal definition of that condition.
age eighteen.
onset before
Id. at 308 n.
3,122
quoting
S.Ct.
at 41. As
DSM-IV
the Court determined that
observed,
legal commentators have
“under
“mentally
“categori-
retarded” offenders are
cally
Virginia,
Eighth
Atkins v.
excluded from
Amendment
Eighth
execution”
protects individuals who meet the
Amendment.
536 U.S. at
AAIDD/
*14
2242;
320-21,
AAMR
accord id.
criteria for mental retardation or the
nicians.
In
presented by
substantially
the issue
statute
deviates
case,
noted,
compre-
Atkins’s
the Court
from the clinical definition.
recited,
hensively
the definitions for mental
¶ Here,
apply
trial court did not
adopted,
respectively, by
retardation
clinical definition of mental retardation in
(APA)
Psychiatric
American
Association
concluding that Williams was not intellectual-
the American Association on Mental Retar-
Rather,
ly
applied
disabled.
the court
Ari-
(AAMR) (now
dation
the American Associa-
statutory
zona’s
definition of mental retarda-
tion on
Developmental
Intellectual and
Dis-
13-753(K)(3).
§
tion set
in
forth
As the
(AAIDD)).
abilities
Id. at 308 n.
order,
acknowledged
in its
that defini-
Thereafter,
2242.
expressly
the Court
an-
tion deviates from the clinical standard in its
reasoning
chored its
in the
diagnostic
clinical
criteria for determining whether an offender
criteria for that condition and clinical under-
significant
suffers from
impairment
a
standings
capacities
persons
of
so di-
II,
functioning.
In Grell
the Ari-
agnosed.
See id. at
mental
require,”
specified
retardation
it
clearly
The defense claims to have
effects of those
culpabili-
deficits on criminal
shown ... deficits in two of the eleven
ty, and it concluded that those deficiencies
areas listed in the DSM-IV and therefore
justify categorical
mentally
exclusion of the
[the
has
defendant]
mental retardation.
eligibility
retarded from
penal-
for the death
The DSM-IV definition of mental retarda-
ty.
318-21,122
Id. at
S.Ct. 2242.
tion, however, while
similar
overall
¶
Thus,
the United States
meaning, is not the
same as the
Court has defined the
class of
re-
definition.
requires
The statute
an overall
persons ineligible
capital
tarded
punish-
ability
assessment of the defendant’s
express
ment with
reference to the deficien-
society’s expectations
meet
of him.
It
displayed by
cies
diagnosed
those
with the
require
does not
a
of mental retar-
condition under clinical criteria. Those crite-
solely
proof
dation based
specific
on
ria,
specifically
by
as
articulated
both the
only
deficits or deficits in
two areas.
(1)
AAMR
significantly
and the APA are:
subaverage
(citation
functioning;
sig-
a court to evaluate “the global assessment behavior” essence, then, pre- law Arizona the defen- degree to which effectiveness retardation for diagnosis of mental cludes the inde- personal meets the standards dant significant fails to show any individual who expected responsibility pendence and social “per- categories broad impairment in both group.” age and cultural of the defendant’s responsibili- independence” and “social sonal contrast, 13-753(K)(1). By clinical defini- required stat- ty.” And the determination retardation, adopted as tions of assessment,” Grell involves an “overall ute seria- require a clinician to consider P.3d at an performs on each of a defendant tim how strengths in some implicitly allows DSM-IV at array specific life skills. See impairments in significant outweigh skills areas); (itemizing specific skill eleven others. AAMR, Definition, Mental Retardation: mental retarda- definitions of 57 Clinical Supports 5 Classification, Systems requirement parallel include no tion ten). 1992) (9th clini- (itemizing By those ed. subaverage intelli- significantly person standards, diagnosed are cal individuals significant deficits *15 gence also demonstrate mentally they significant retarded if show independence” and “social “personal both of those skill areas— couple limitations in a Indeed, person a need not responsibility.” others. they strengths if in most even exhibit impairment in either broad exhibit overall (definition DSM-IV at See Rather, significant category. evidence of person if has limited func- retardation met many any two discrete impairment in of areas).12 tioning in two of eleven together skill areas is considered sufficient — example, a defendant in Arizona 55 For subaverage in- significantly with a of impaired overall significantly he is must show age eigh- telligence with the onset before category responsi- adaptive in the of “social mentally classify an individual as teen —to mentally retarded bility” to be classified as standards, And, by indi- clinical retarded. § 13- statutory definition. See under our re- may receive such a classification viduals 753(E)(1), showing signifi- (requiring of they may perform in gardless of how well “personal inde- impairment cant as to both adaptive func- pertinent to other skill areas But no pendence responsibility”). and social tioning. defi- showing required is under clinical such diagnostic ap- surprisingly, 58 Not Indeed, under nitions of mental retardation. conforms to clin- proach adopted clinicians standard, diagnostic AAIDD “so- the current understandings of the behavior of most ical but one of responsibility” cial is identified as mentally persons. As the defini- retarded in eight sub-factors to consider nonexclusive by the AAIDD in- which, published tional manual skills,” category in evaluating “social dis- [intellectual “Individuals with an turn, structs: comprises criterion for a nonexclusive AAIDD, strengths ability] typically demonstrate both Intel- evaluating adaptive behavior. Thus, adaptive in behavior. Disability: Definition, Classification, and limitations lectual incorporate the eleven skill areas disability” "men- skills which for the term term "intellectual Laws, ch. Ariz. Sess. AAIDDManu- tal retardation.” 2011 § in the DSM-IV criteria. See listed in The has remained the same mate- 5. statute need not at 44. And deficits in all areas be al part. rial classify mentally an individual as established Indeed, an individual is deemed retarded. diagnostic 12. The AAIDD has since revised its significant adaptive in behavior have limitations sig- disability require criteria for intellectual performs measures on standardized if he or she behavior,” "adaptive in limitations nificant "approximately deviations below two standard conceptual, defined "the collection of which is social, as types the three of the mean” practical have been learned skills that social, conceptual, practical. Id. at or behavior: everyday by people performed in their and are Thus, AAIDDdefinition is not a the revised AAIDD, Disability: Intellectual lives.” Defini- meaningful departure either the DSM-IV tion, Classification, Systems Supports 43 prior stan- AAMR’s definitional criteria or the Manual). (11th 2010) (hereinafter AAIDD ed. in Atkins. dard set forth categories those three Behavior in each of specific life itemized evaluated with reference clinically be diagnosing dis- those who would defined process [intellectual in the conceptual, ability], significant such. limitations social, practical not out- adaptive skills is or Although legislature may our well potential strengths some
weighed 13-753(K) with have drafted the intention (em- AAIDD adaptive skills.” Manual at correctly defining mental retardation added). DSM-IV, According phasis standards,15 conformity clinical with “usually mentally mildly persons of At- thereby complying holding with the adequate achieve and vocational skills social kins, 13-753(K) language falls short and, self-support” appro- for minimum goal. view, achieving my priate supports, “usually live successfully in statutory “typi- cannot definition exclude the community, independently either person suffering cal” from mental retarda- (em- supervised settings.” DSM-IV at Atkins’s command yet comply with tion and added).13 ease, Indeed, phases in this suffering that those from mental retardation presented study, longitudinal for execution. categorically ineligible be testimony, Dr. which through Weinstein’s State, (Ind.2005) Pruitt v. 834 N.E.2d thirty-six percent found that identi- those (permissible defining variation in high fied as retarded in later school functioning constitutionally cannot “a exclude independently,” seventy-nine per- “lived definitions”). majority of those who fit clinical employed, cent became tech- either received training for employment,
nical
or attended
improper
The
standard affected the out-
higher education.14
hearing.
come of the
¶ 61 The record before us
shows that
therefore,
application,
59 In
the differ-
above
in Arizona’s
in-
defining
flaws
statute
ence between Arizona’s
definition
*16
disability
tellectual
had a demonstrable effect
accepted
of mental retardation
clini-
and the
on the trial court’s ultimate conclusion that
cal
is neither
trivial.
definition
semantic nor
not suffer from
Williams does
mental retar-
Rather,
statutory
pro-
Arizona’s
definition
dation.
In its exhaustive and conscientious
categorically
duces
different
in iden-
results
entry,
trial
specifically
minute
the
not-
tifying
persons diagnosed
the class of
as
ed the
between
variation
the clinical standard
mentally retarded. While both definitions
for mental
and
retardation
that set forth
require
significant impairment
evidence of
in
13-753(K)(1),
adopted
the court
the
behavior,
adaptive
requires
Arizona
that
statutory one.
impairment
such
be
globally
considered
personal independence
be manifested as to
conformity with
statutory
62 In
stan-
But,
responsibility.
clinical
social
dard,
the trial court evaluated Williams’s
standards, persons suffering
men-
from mild
adaptive
by considering
behavior “overall”
typically
tal retardation
can
ei-
demonstrate
variety
a
displayed
whether he
“wide
of diffi-
personal independence
respon-
ther
or social
daily living
culties” in activities of
and wheth-
sibility,
possess
strengths
and most
notable
living
“independently
er he had difficulties
pertinent
general
in some skill areas
to
view,
those
inqui-
world.” In
court’s
these
Thus,
statutory categories.
Arizona’s statu-
essentially captured
statutory
ries
defini-
tory requirements substantially
narrow
tion for
behavior. The court then
mentally
persons
expressly
class of
who are
display
defined as
found Williams’s
of one dis-
compared
ability
when
retarded
with the class of
crete
skill—the
cook for
people
DSM-IV also
14.
an
The
observes that
Dr. Weinstein so testified with reference to
retardation,”
IQ
"mild mental
an
part
those with
not
exhibit that was
made
of the record.
fifty-five
seventy,
eighty-five
up
make
about
Accordingly,
study
citation to the
no
available.
percent
mentally
of those classified
retarded.
as
DSM-IV at 42-43. Given
is little
that
there
753(E),
requires
15. The
ex-
text of
which
13—
practical difficulty
diagnosing
with an
those
pert
accepted psychological
use
witnesses to
test-
fifty-five,
IQ
below
correct identification
ing procedures to evaluate a defendant for men-
is,
"mild mental
for all
those with
practical
retardation”
retardation, suggests
legislative
tal
such a
intent.
purposes,
an
the central task of Atkins
hearing.
court’s assess-
heightened importance
dispositive
be
evidence
group
people
—to
had a
According
his mental retardation
ment of whether
independently.
live
that he could
juvenile
Any conclusion that Williams
court,
was
onset.
finding
[Williams]
that
“[a]
impairment in
significant
independently
possible
is not
had demonstrated
live
unable to
adaptive functioning as a child would
people
ten
for a
cook for
his
when he could
testimony credited
countered the
have
year.”
intelligence level
trial court
Williams’s
court understood
that the trial
63 Given
an adult.
juvenile than as
higher
as a
mental re
statutory definition of
showing that the de
require a
tardation to
inviting
Atkins cannot
be construed as
independently,
this
not live
fendant could
limitation,
states,
to redefine
without
question of
essentially
resolved
constitutional
of the substantive
nature
under
mental retardation
the defendant’s
in that case.
restriction set forth
13-753(K)(1)
(3).16 But, as discussed
above,
diagno
exclude the
no clinician would
may
suggests we
overlook
65 The state
person’s
based on
sis of mental retardation
prevailing
clini-
any
deviation
single adaptive strength.
In
display of a
the United States Su-
cal standards because
deed,
definitions make
the above clinical
has,
invited the
preme Court
clear,
mentally retarded individuals
most
develop their own substantive defi-
states to
skills,
vocational
possess some useful life and
It contends
for mental retardation.
nitions
persons
mildly mentally retarded
and most
following por-
in the
this invitation occurred
commenta
taught such skills.17 As
can be
opinion:
tion of that
noted,
allow
have
when state standards
tors
disagree
there is serious
To the extent
dispositive weight on
place
fact-finders
mentally re
ment about the execution of
adaptive strengths,
those stan
individual
offenders,
determining
it is in
which
tarded
diagnostic conclusions an
encourage
dards
in fact
In this
offenders are
retarded.
misunderstandings of
chored in fundamental
instance,
ease,
the Commonwealth of
Blume, supra, at 707-08.
the condition.
Virginia disputes that Atkins suffers from
appears to be what occurred
the case
That
people
retardation. Not all
who
before us.18
will be
claim to be
so
range
within the
majority suggests
impaired
such
as to fall
64 The
*17
mentally
whom
retarded offenders about
analysis
in
court’s
would be harm-
defect
As was our
that
there is a national consensus.
the court also found
less because
Wainwright,
477 U.S.
present
approach
clear and con-
Ford v.
had failed to
2595,
(1986),
399,
eigh-
legislative definitions of that condition would
permitting
kins as
states to set forth sub-
render the
holding
Atkins
prac-
irrelevant in
stantive definitions of mental
retardation
tical effect and
would eviscerate
mean-
that are not facsimiles of clinical standards.
ingful “substantive restriction on the State’s
Bies,
2145;
See
existed,
74 Nor does
scope
holding.”
particular
defines the
of the
In
the Court’s
dis-
arguing,
consensus,”
so
the
language
state directs us to
cussion of a “national
id. at
leaving
individual
suggest any
states the task of
other definition of mental retar-
identifying those who “fall within
range
the
dation.
In section III
opinion,
of the
the
mentally
retarded offenders about whom
exhaustively
Court
marshals the evidence of
there is a national consensus.” 536 U.S. at
Therein,
that consensus.
Id. at 313-17.
317,
21. Given that substantially "mental retardation” is in fact a the states to redefine the nature of term, politically clinical rather than a defined authority substantive restriction their on own art, assumption term of the Court's that each context, punishment. to determine it seems understanding state shared that the term especially unlikely that the Court would have Although majority not unreasonable. “it lay legislators authority endowed with the unlikely seems Court would have condition, substantially redefine a medical when *20 delegated interpretation Eighth the the holding the Court's is itself in anchored the na- clinicians,” 42, supra Amendment to I find it clinically ture of the condition as described. unlikely more that the Court would have invited mentally about “range retarded offenders At mentally retarded. seventy, were
below
consensus,”
316, 122
at
kins,
2242.
national
id.
at
S.Ct.
whom there is a
536 U.S.
referring
the
it is
to
122 S.Ct.
footnote,
majority
the Atkins
In a lone
clinically
be
spectrum of offenders that would
in
variation
statu-
acknowledges some minor
mentally
It is not refer-
retarded.
defined as
to define mental
tory language used
states
the
range
varying
ring to a
definitions
n.
122 S.Ct.
id. at 317
retardation. See
condition.
(“The statutory
of mental
definitions
identical,
generally
but
are not
retardation
Court
Ultimately, when the Atkins
in
set forth
to the clinical definitions
conform
decency
evolving standards of
held that
But,
the Court notes
supra.”).
n.
on the
“‘a substantive restriction
placed
any disagreement
suggest
variation not to
mentally
the life’ of a
power
State’s
to take
under-
as to the consensus
among the states
321, 122
offender,”
S.Ct.
retarded
id.
entails,
mental retardation
standing of what
Ford,
405, 106 S.Ct.
quoting
477 U.S. at
that a
the conclusion
rather to reinforce
but
holding
definition of
implicit in that
was the
had coalesced around
true national consensus
that the Court itself had
mental retardation
of the condition—the
a shared definition
repeatedly
formulating
in
forth and
used
set
n.
Id.
set forth in
3.”
“clinical definitions
opinion,
only definition in existence
its
the
Thus,
in
is no evidence
the
there
a national consensus could dev
around which
con-
of the national
Court’s actual discussion
way,
re
elop.23 Put another
the Court’s
it intended to define “mental
sensus
would neither be effec
striction on the states
art, varying
legal
a
term of
retardation” as
in the
tively “categorical” nor “substantive”
political
based on the
from state to state
definition of mental
absence of a concrete
legislature,
each
untethered
views of
state
retardation.
of that condi-
accepted clinical definitions
the
Rather,
its discussion of nation-
tion.
within
has neither
The Arizona
Court
consensus,
employs the
logically
the Court
al
the issue.
addressed nor resolved
(and
definition of that term
indeed
consensus
definition):
Lastly, my colleagues maintain that
only recognized
specific
a
sci-
its
already
Supreme Court has
ad-
disability.
the Arizona
mental
entific classification of
context, then,
question
the
here and
Court refers to a
dressed
resolved
when the
above,
upon
language
"enforce the constitutional
restriction
of then
22. As discussed
legislature
suggests
in-
Arizona's
execution of sentences.” Id. at
[their]
13-703.02
understandings
Ford,
express
tended to
clinical
quoting
477 U.S. at
S.Ct.
defining
statutorily
Atkins).
(alteration
mental retardation
106 S.Ct.
And,
majority correctly
the Atkins
condition.
legislation as evidence of a trend
identified that
majority
observe that clini-
23. The state and
mentally
against
retarded.
the execution
may
cal definitions
evolve. The state therefore
I
U.S. at 315 n.
243
consequently
any specific
that deci
not
by
that
bound
observation did
address
we are
it,
they
in
Specifically,
sion.
observe that Grell
claim
in the case before
and was
raised
II,
supreme
primary
Moreover,
court
our
identified the
therefore dicta.
the court em-
statutory
to,”
between the
definition
differences
it
ployed
phrase “appears
suggesting
the
for mental
retardation and the DSM-IV
purporting
definitively
was not
to have
con-
and
fault with
standard
nonetheless found no
sidered
all future
or resolved
Ai/cms-based
statutory
application
the
court’s
of the
trial
Indeed,
challenges
the
to
statute.
when
62-63,
¶¶
II,
516,
See
212
standard.
Grell
Ariz.
Grell later
a host of claims that Ari-
raised
at 709.
P.3d
Atkins,
procedural
135
zona’s
framework violated
exhaustively
¶
the
court
addressed those
¶
passage, quoted
length
79 That
merits,
claims
and it declined
cite
on their
to
supra,
dif-
indeed identifies and articulates
previous
authority
reject-
its
footnote
between the
ferences
definition
¶¶
II,
516,
ing
21-
them. See Grell
Ariz.
mental retardation and the clinical
But
one.
49,
Thus,
supreme
701-07.
the
P.3d at
question
purport
it
not
does
to address the
manifestly
court
did not view itself as resolv-
we
answer here: whether that devia-
must
ing any specific
challenges
Atkins-based
Eighth
a violation of
Amend-
tion constitutes
I
the statute
it authored the
when
Grell
ment
set forth
United
standards
the
footnote.
pas-
Court in
The
States
Atkins.
II,
sage
Grell
which
a chal-
addresses
¶ Although
we are bound
the hold-
lenge
sufficiency
the
court’s
of a trial
court,
ings
highest state
I
of our
cannot
law,
under
no
findings
Arizona
men-
makes
supreme
assume our
court has resolved an
tion of
the United
Constitu-
States
gravity
legal complexity
issue of such
tion,
any other
or
federal case law. See
reasoning
engaging
without
of the
¶¶
516,
58-63,
It
Ariz.
work to enforce
Atkins. See Grell
See,
party.
not
e.g.,
raised
State
¶¶
say objection insufficient flexibility Confrontation on Sixth Amendment based a measure respective states Clause); Crystal v. State Bank see also Ariz. respect for the defining retardation: 211, 205, Co., 224 Storage Ice & Cold the tradi- federalism and salutary effects of (statutes 622, presumed consti- P. 623 in formulat- the states tional deference owed constitutionality question of until tutional view, my But in we must ing punishments. court). properly before raised majority invit- recognize also Atkins a court’s determining what issues 83 In holding, not evis- flexibility to enforce its ed resolved, necessarily be we must holding has it. Nor can we overlook cerate must, attorneys guided, as all trial courts places a sub- holding expressly itself Atkins description of the issues it own the court’s state au- on traditional stantive restriction resolving. addressing and purports to be Because thority punishment. determine considered, any find indication I cannot Thus determining standard supreme I II that our in either Grell or Grell disqualify most adaptive functioning would or resolve the intended to address protec- persons question now before us. it exceeds the bounds tion of
Conclusion provide flexibility the Court intended enforcing restric- the constitutional states scholarly sug- rebuttal My colleagues’ 84 respectfully I therefore dissent. why tion. explanations for gests some non-trivial Appendix 1 Addressing after Mental Retardation Definitions of Court Decisions
State leave Did Atkins substantive definition MR states?_Source_ State 2010) State, 326, (Ala.Crim.App. v. 60 So.3d 339
AL_Yes_Morris 2004) 333, 354-55 (Ark. State, 163 S.W.3d v. AR_Yes_Anderson ¶¶ 516, 24-25, 62, Grell, 135 P.3d State v. AZ Yes (2006)_ _709 1098, 1107, 1109(Cal. 2009) Jackson, v. 199 P.3d CA_Yes_People Vasguez, 1019, 1022(Colo. 2004)_ v. 84 CO_Yes_People 891, 894 (Fla. Herring, 2011)_ v. 76 So.3d FL_Yes_State State, 665, (Ga. 2011)_ 711 S.E.2d 668 v. GA_Yes_Stripling State, (Idaho 2008)_ v. 202 P.3d 649 ID_Yes_Pizzuto 2002) (but (Ill. Pulliam, People 794 N.E.2d 236-37 IL v. Yes penalty longer Illinois)_ no available in _death State, 90, 109-10 (Ind. 2005)_ N.E.2d v. 834 IN_Yes_Pruitt (Ky. 2005) Commonwealth, 376 v. 163 S.W.3d KY_Yes_Bowling Turner, (La. 2006)_ v. 936 So.2d LA_Yes_State Johnson, 144, 150(Mo. 2008)_ v. 244 S.W.3d MO_Yes_State State, 1013, 1027-28 (Miss. 2004) v. 873 So.2d MS_Yes_Chase (N.C. 2005) Poindexter, v. 608 S.E.2d NC_Yes_State 2006) (but (N.J. Jimenez, A2d State v. NJ Yes penalty longer Jersey)_ no available in New _death 2007) (N.M. Ct.App. Trujillo, 160 P.3d 581-82 NM Yes Mexico) penalty longer in New no available death _(but (Nev. State, 2011)_ v. 247 P.3d NV_Yes_Ybarra (Ohio 2008) Were, 263, ¶¶ N.E.2d v. OH_Yes_State 2010) State, (Okla.Crim.App. v. OK_Yes_Smith DeJesus, (Pa. 2012)_ A.3d v. PA_Yes_Commonwealth (S.C. Laney, 2006)_ v. 627 S.E.2d SC_Yes_State State, Coleman v. (Tenn. 2011); How TN Yes 341 S.W.3d 450, 457 State. (Tenn.2004)_ 151 S.W.3d ell Briseno, *23 parte Ex 2004) TX (Tex.Crim.App. Yes 135 S.W.3d 4-8 states, (Supreme procedure Court left absent Texas enactment, legislative adopting AAMR definition Safety _definition Code)_ Texas Health and Maestas, (Utah 2012) UT_Yes_State ¶¶ 2012 WL 187-88 Commonwealth, by implication (Va. 2010) Burns v. YA_Yes, 688 S.E.2d 264 Appendix 2 Determining Statutory
State Standards Mental Retardation 2 + Requires Requires Requires diminished diminished diminished IQ Prior to Age State behavior? behavior? ability? threshold? Source 15-24-2(3) (de- AL Yes Yes § No None Ala. Code “Develop- mental MR fines for defendants period” generally, cited in Morris v. (Ala. State, 60 So.3d 339 Crim.App.2010) for definition prosecution) in capital AR Yes § Yes No of 18 Ark. Presumption Code Ann. 5-4-618 IQ _MR 65_ 13-753(K)(3), AZ § Yes_Yes_No_70_18_A.R.S. CA § Code 1376 Yes_Yes_No_No_18_Cal.Penal CO Yes No § Yes No Rev. Colo. Stat. 18-1.3- “Develop- 1101 period” __mental CT Yes Yes No 1-lg § two standard 18 Conn. Gen.Stat. (death longer deviations no penalty Connecticut) _below mean_available DE Yes Yes Yes 70 18 Del.Code Ann. tit. 4209(d)(3)_ _§ FL Yes § Yes No two standard 18 Fla. Stat. 921.137 deviations below mean GA Yes Yes No § No Ga. Code Ann. “Develop- -131 mental period” ID Yes Yes Yes § 70 18 Idaho Code Ann. 19- _2515A(1)_ IN Yes Yes No No 22 § Ind.Code 35-36-9-2 KS Yes Yes No §§ two standard 18 Kan. Stat. Ann. 21- 76-12b01(d) 6622(h); deviations below mean KY Yes Yes No Rev. “Develop- Stat. Ann. Ky. § 532.130 period” LA Yes Yes No No La.Code Crim. Proc. Ann. 905.5.1(H)(1) art. _ MD Yes Yes No Ann., Md.Code Crim. Law 2-202(b)(l)(i)-( ii) _§ 565.030(6), MO Yes § Yes Yes No Mo.Rev.Stat. found unconstitutional on grounds other Whitfield, S.W.3d (Mo.2003) _ NC Yes § Yes Yes N.C. Gen.Stat. Ann. ISA- NE Yes Yes No of None Rev. Presumption Neb. Stat. 28- 105.01(3) MR at of 70 IQ §Ann. 31-9- None N.M. Stat. Presumption Yes No
NM Yes 1.6(E) (death no penalty MR at of 70 IQ longer available New Mexico) 174.098(7) Nev. Rev. Stat. No “Develop- Yes No Yes NV mental period” Proc. Law N.Y.Crim. No Yes No NY Yes 400.27(12)(e) (death penal- longer no available in New ty York) *24 Okla. Stat. tit. Yes OK Yes Yes 701.10b(A)-(B) § §Ann. 44-20- S.C.Code “Develop- No No Yes Yes SC 30(12) (defines MR in health mental period” cited death context, penal- Stanko, case ty (S.C. WL *16 Feb. 2013)) §§ Laws 23A- of 18 S.D. Codified No Presumption Yes Yes SD 27A-26.1, 23A-27A-26.2 no MR if IQ greater than 70 § Tenn.Code Ann. 39-13-203 No TN Yes Yes Tex. Ann. 591.003 two standard Code “Develop- Yes No TX Yes (defines MR in health and deviations period” code, below mean safety adopted part in death standard penalty Hearn, Ex paiie cases, (Tex. 424,427-28 S.W.3d Crim.App.2010)) No Utah Code Ann. 77-15a- Yes No UT Yes § 19.2- standard Va. Code An n. Yes Yes No two VA 264.3:1.1(A) deviations below mean Wash. Rev.Code WA Yes Yes No 10.95.030(2)