In Atkins v. Virginia,1 the United States Supreme Court held that the execution of a mentally retarded criminal constitutes cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution.2 In October 2002, the Illinois Supreme Court remanded the case of People v. Pulliam to the circuit court of Cook County for a de novo evidentiary hearing to determine whether the defendant there was mentally retarded and thus not subject to execution pursuant to Atkins.3
The first two sections of this article set out the facts and holdings of Pulliam and Atkins. The third section discusses how the Atkins decision was applied in Pulliam. Finally, the article concludes with a call for bar associations, legal educators, mental health professionals, and Illinois legislators to thoughtfully enact the legislation necessary to deal with this serious social issue.
People v. Pulliam
The facts of the case are horrific. Defendant Latasha Pulliam signed a court-reported confession in connection with the sexual assault and murder of six-year-old Shenosha Richards.4 Pulliam admitted that she took Shenosha to her apartment and placed the child in a bedroom with Pulliam’s boyfriend while Pulliam herself used cocaine in the kitchen.5 When she returned to the bedroom, she found Shenosha unclothed and crying on the floor. Pulliam and her boyfriend then assaulted Shenosha for ten minutes by simultaneously placing a bottle of shoe polish in her rectum and the straight end of a hammer in her vagina. When the child tried to scream, Pulliam wrapped an electrical cord around her neck and began strangling her. After some time, she took Shenosha to an empty apartment down the hall and continued tightening the cord for ten minutes, until she heard someone knocking on her own apartment door.6 At that point, she placed the child in a closet in the empty apartment. When Pulliam returned a few minutes later and found that Shenosha was not breathing, she hit the child three or four times over the head with a hammer. She then put Shenosha’s body in a garbage can, struck her head with a two-by-four, and covered her in garbage.7 According to the testimony of one of Pulliam’s cellmates, she admitted that she had also used a wooden doorstop with a nail in it to jab Shenosha in the chest.8
The medical evidence was consistent with the conduct in Pulliam’s confession.9 Shenosha had forty-two separate injuries, including two puncture wounds to her chest, multiple lacerations that penetrated her skull, and many lacerations to her vagina and anus.10
A jury convicted Pulliam of murder, two counts of aggravated criminal sexual assault, and two counts of aggravated kidnapping.11 The jury then found that she was death-eligible and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the trial court sentenced her to death for the murder and to three consecutive terms of 60, 30, and 15 years on the remaining convictions.12 After Pulliam’s direct appeal was affirmed by the Illinois Supreme Court,13 she filed a pro se petition for relief under the Post-Conviction Hearing Act,14 challenging her death sentence on a number of grounds, none of which related to Atkins,15 which was decided while this case was under review.16
Atkins v. Virginia
In June 2002, the United States Supreme Court overturned its 1989 decision in Penry v. Lynaugh, which had held that executing mentally retarded criminals was not categorically prohibited by the Eighth Amendment.17 Justice Stevens, writing for a 6-3 majority in Atkins v. Virginia, held that "in light of our evolving standards of decency," the execution of a mentally retarded criminal constituted cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution.18 In Atkins, the defendant was convicted by a jury of abduction, armed robbery, and capital murder after he and a co-defendant abducted Eric Nesbitt, robbed him, drove him to an ATM to withdraw more money, took him to a secluded area, and then shot him eight times, resulting in his death.19
At the penalty phase of the trial, the defendant relied on the testimony of a forensic psychologist who had evaluated him before trial and concluded that he was "mildly mentally retarded," with a full scale IQ of 59.20 The Court noted that the defendant was given the standard Wechsler Adult Intelligence Scales Test (WAIS-III), which measures an intelligence range from 45 to 155, with a mean score of 100 defining a person considered to have an average level of cognitive function.21 The Court also noted that between 1 and 3 percent of the population has an IQ between "70 and 75 or lower, which is typically considered the cutoff IQ score" for mental retardation.22 In rebuttal, the State offered an expert opinion that defendant was not mentally retarded, but instead was diagnosable as having an antisocial personality disorder.23 This expert did not conduct an IQ test.24
The Court began its analysis by quoting from its decision in Trop v. Dulles: "The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.... The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."25 The Court then recognized that a proportionality review under these "evolving standards" should be informed by objective factors to the extent possible, and that the most reliable objective evidence of contemporary values is the legislation enacted by the electorate’s legislatures.26 Still, even in the face of a consensus among the legislatures, the Court reserved for itself, in its "own judgment," what would be the acceptability of the death penalty under the Eighth Amendment. Accordingly, the Court set out how it would decide the case: "[W]e will first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment."27
The Atkins Court proceeded to review legislative action from 1986 through 2001, citing nineteen states (excluding Illinois, but including Texas) as well as the federal government as having passed statutes making it unconstitutional to put mentally retarded criminals to death.28 The Court found that the consistency of the direction of change, rather than the number of States, was significant, because it "provide[d] powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average offender."29 The majority then supported its holding by reviewing three policy considerations that weigh against executing the mentally retarded: relative culpability; the relationship between mental retardation and the penological purposes served by the death penalty; and the strength of the procedural protections that may not be afforded mentally retarded defendants.30
As to relative culpability, the Court recognized that the mentally retarded frequently know right from wrong and are competent to stand trial, but have diminished capacity to be leaders rather than followers, learn from experience, engage in logical reasoning and to control their impulses. As such, the Court found that these characteristics do not warrant exemption from criminal sanctions, but they do diminish personal culpability.31
According to the Atkins Court, the penological purposes of the death penalty are retribution and deterrence of capital crimes by prospective offenders. The Court reasoned that unless either of those goals was furthered by subjecting the mentally retarded to the ultimate sanction, then imposition of the sanction was "nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment."32 The Court found that the goal of retribution, seeing that the offender gets his "just desserts," was dependent upon the defendant’s culpability, because the death penalty is imposed not on all murderers but only on those that have committed the most heinous crimes. Therefore, if the culpability of the "average murderer" does not justify the death penalty, then the less culpable mentally retarded defendant does not merit that form of retribution.33 As to the goal of deterrence, the Court recognized that deterrence was predicated upon the criminal’s knowledge of the severity of the punishment at the time of premeditation, and that it is that knowledge that inhibited him from carrying out the act. Yet, the Court noted it was the level of intellectual impairment in the ability to understand and process information, engage in logical reasoning, and control impulses that would keep the mentally retarded criminal from controlling his conduct based on the knowledge of the increased penalty. Therefore, executing the mentally retarded criminal would not further the goal of deterrence.34
Finally, to support its holding, the Court cited several factors leading to the conclusion that the mentally retarded may face special risk of wrongful execution.35 At the beginning of the case, these defendants may be more apt to give false confessions, and at the end of the case, they may have lesser ability to make persuasive showings of mitigation. Additionally, they may be less able to give meaningful assistance to their counsel, they often make poor witnesses, and their demeanor may create an impression of lack of remorse. Moreover, reliance on mental retardation as a mitigating factor is often a "two-edged sword," because the State is able to use the condition to show the aggravating factor of future dangerousness.36
Relying on the "consensus" among the States that mentally retarded criminals should not be put to death, the Court observed that "to the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded."37 Ultimately, the Court decided to "leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."38
The Illinois Supreme Court Applies Atkins
Because the Court decided Atkins while the Pulliam decision was under review, the Illinois Supreme Court recognized that an Atkins hearing would inevitably be necessary under the facts of the case, and in the interest of judicial economy, remanded the matter so that the circuit court could determine whether the defendant in Pulliam was mentally retarded and therefore ineligible for a death sentence.39 Throughout the trial and on her appeals, Pulliam’s intellectual ability was at issue before the court.40
The record revealed that when she was five years old, Pulliam had been given a psychological evaluation by the board of education that determined that she was mentally impaired, resulting in her being enrolled in special education classes.41 She was given three IQ tests as a child, with the following results: at age 11, her full scale IQ was 72; at age 13, it was 77, and at age 15, it was 74. Prior to trial, the adult IQ test reported a full scale IQ of 69.42 Evidence was also presented in mitigation that she had been severely physically and sexually abused by her mother and her mother’s boyfriends from the age of 22 months through her teenage years.43 In affidavits and exhibits appended to her appeal, it was revealed that she was born to an alcohol-addicted mother; that she had ingested and tested positive for high levels of iron and lead as a young child; that she had become pregnant and contracted a venereal disease at ages 13 and 15 as the result of being forced by her mother to have sex with her mother and her mother’s boyfriends; and that a psychiatric exam conducted when she was 8 years old concluded that "she ha[d] a considerable amount of brain damage."44 Two doctors supplied affidavits on appeal that set forth the following risk factors for early childhood brain damage: maternal alcoholism during pregnancy, premature birth, febrile seizures and anoxia due to submersion in the bathtub, ingestion of iron and lead, blows to the head, and illicit drug use.45
The Pulliam court quoted the Atkins language regarding the cutoff point for mild mental retardation as being between 70 to 75.46 The court also noted that, as in Atkins, the State and the defense in this case disagreed as to whether the defendant was mentally retarded. Because the court found that an Atkins hearing would be inevitable in light of the Supreme Court’s decision, it remanded the case for determination of whether the defendant was indeed clinically retarded.47
Finally, the court recognized that Illinois has no statutory or common law procedural or substantive standards to be applied in Atkins hearings.48 The court refused to "usurp the authority of the legislature" by fashioning such standards, and found that "such matters [were] best left to the determination of the legislature following discussion and debate."49 Recognizing that the Illinois circuit courts would be left without guidance until the legislature acted, the Pulliam court committed to review all such cases to ensure that due process standards had been satisfied.50
While there are probably few defendants who will actually fit the Atkins exception to the death penalty, there may be many who will need to be tested. Procedural and substantive standards are needed to ensure both the defendants and the People of the State of Illinois a fair and just Atkins hearing. Mental health professionals, bar associations, legal educators, and the Illinois Legislature should work together thoughtfully to enact the legislation that is needed to deal with this serious social issue in Illinois.
1 U.S. __,122 S. Ct. 2242 (2002).
2 Id.; U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.").
3 No. 89141, 2002 WL 31341298, at *1, *22 (Ill. Oct. 18, 2002).
4 Pulliam, 2002 WL 31341298, at *1.
6 Id. at *1-2.
7 Id. at *2.
8 Id. at *3.
9 Id. at *2.
10 Id. at *1.
13 People v. Pulliam, 176 Ill. 2d 261, 683 N.E.2d 343 (1997).
14 725 Ill. Comp. Stat. 5/122-1 et seq. (West 1996). The Act is a means by which a defendant may challenge her conviction for violation of the state and federal constitutions. It is a collateral proceeding and not an appeal from the underlying judgment. To be eligible for post-conviction relief, the defendant must establish a substantial deprivation of federal or state constitutional rights that resulted in the conviction or the sentence. Furthermore, an evidentiary hearing is not ordered as a matter of right, but only where there has been a substantial showing that a defendant’s constitutional rights have been violated. All well-pleaded facts in the petition and any accompanying affidavits are taken as true, and a trial court’s determination as to the sufficiency of the allegations are reviewed de novo. People v. Morgan, 187 Ill.2d 500, 528, 719 N.E.2d 681, 697 (1999); Pulliam, 2002 WL 31341298 at *1, *8.
15 122 S. Ct. 2242 (2002).
16 Pulliam, 2002 WL 31341298 at *1, *21.
17 492, U.S. 302, 340,109 S. Ct. 2934, 2958 (1984).
18 Atkins, 122 S. Ct. at 2252. Chief Justice Rehnquist and Justices Scalia and Thomas dissented in Atkins.
19 Id. at 2244.
20 Id. at 2245.
21 Id. at 2245 n. 5.
23 Id. at 2246.
25 356 U.S. 86, 100-101, 78 S. Ct. 590, 598 (1958).
26 Atkins, 122 S. Ct. at 2247.
27 Id. at 2248.
28 Id. at 2248-49 (also mentioning 2 states where similar legislation has passed one house).
29 Id. at 2249.
30 Id. at 2250.
31 Id. at 2250-51.
32 Id. at 2251.
35 Id. at 2251.
36 Id. at 2251-52.
37 Id. at 2250.
39 Pulliam, 2002 WL 31341298, at *21.
40 See, e.g.,. id. at *2, *5, *8, *11.
41 Id. at *2.
43 Id. at *4 - *8.
44 Id. at *6 - *8.
45 Id. at *8.
46 Id. at *20.
48 Id. at *22.
Kimberly R. Shefts is a third year law student at Northern Illinois University College of Law. She serves as External Publications Editor for the Law Review; Chief Justice of the Moot Court Society; Co-Chair of the Community Life Committee; and Research Assistant to Professor Jeanna Hunter. She plans to dedicate her career to Family Law, Juvenile Law, and Appellate Practice.