Commentary: Atkins on a diet--a fit but lean guide for policy-makers.

It comes as no surprise that the resource document Professor Richard Bonnie has crafted for the APA Council on Psychiatry and Law to aid in the implementation of Atkins v. Virginia is clearly written and to the point. What was not expected, however, is the document’s significantly limited scope. Because the document is intended as a resource for mental health professionals who may be consulted in the development of legislation and policy, its avoidance of such extraneous (and controversial) issues as the rationale for the Court’s decision in Atkins may be understandable. But its brevity and narrow focus may short-change policy-makers in states receptive to a broader reading of the decision. The Supreme Court ruled in Atkins that individuals with mental retardation must be spared the death penalty—that execution of such individuals constitutes “cruel and unusual punishment” because no one so diagnosed acts “with the level of moral culpability that characterizes the most serious adult criminal conduct.” The Court declared that “[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the state, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution” (Ref. 2). The Court has never offered such a characterization of offenders with other mental disabilities, though some (notably traumatic brain injury) cause deficits closely resembling those of mental retardation. It might be premature to suggest that Atkins signals a willingness among the Justices to consider a broader range of disabilities as incompatible with the death penalty, but certainly legislatures responding to Atkins are free to consider the significance of these disabilities when rethinking their capital sentencing laws. (Although states may not deny protections guaranteed by the Constitution, nothing prevents them from extending additional protections not so guaranteed.) That the APA Council on Psychiatry and Law makes no mention of this possibility is curious. The Council’s narrow response to the decision in Atkins may reflect a judgment that, by avoiding questions not squarely addressed by the Court, its recommendations will find broader acceptance among policy-makers across the country. But the Council may be missing a golden opportunity to show these officials the way to a fairer and clinically more meaningful response to the concerns underlying Atkins. The Council expressly excludes from Atkins ’ protections individuals with brain injuries suffered after the age of 18, reasoning that the “Court’s decision to bar death sentences for persons with mental retardation is grounded in presumed deficits in moral reasoning arising from disordered development” (Ref. 1, p 306). This position may be unduly restrictive, however, as it fails to take account of the Court’s other rationales for its decision: (1) that “diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses. . .also make it less likely that [people with mental retardation] can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information”; (2) that exempting people with this level of disability will not “lessen the deterrent effect of the death penalty with respect to offenders Mr. Fitch is Director of Forensic Services for Maryland’s Mental Hygiene Administration, Jessup, MD; and Adjunct Associate Professor of Psychiatry, University of Maryland Medical School, and Instructor of Law, University of Maryland Law School, Baltimore, MD. Address correspondence to: W. Lawrence Fitch, JD, Office of Forensic Services, MHA, 8450 Dorsey Run Road, Jessup, MD 20794-1000. Email: [email protected]