Majority, Atkins v. Virginia

1. Majority, Atkins v. Virginia Dissent Pamela Rumpz James Ellis

2. “Mentally retarded person" means a person having a significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and originating in the developmental period. 37-4-2

3. M’Naughten 1843 • “not in a sound state of mind” • “might be affected by morbid delusions” • Nevertheless, “might have a moral perception of right and wrong” • Delusion “carried beyond the power of his own control and left him no such perception” • “not capable of exercising any control over acts …in connexion with his delusion”

4. M’Naughten 1843 • “nature of the disease…..” • “To go on gradually until it had reached a climax when it burst forth with irresestible intensity…. • …a man might go on for years quietly….but would all at once break out into the most extravagant and violent paroxysms.”

5. M’Naughten 1843 • Tindal jury instructions: • Every man is presumed sane • If insane, must prove a “defect of reason (that is related to) disease of the mind” • So as not to know the nature and quality of the act • Or (at least) that he did not know he was doing what was wrong • If conscious that the act was one which he ought not to do and it was illegal, he is punishable

6. Georgia Insanity and GBMI • Stevens v. State ( • Shepherd v. State (2006)

7.  Mental capacity; insanity 16-3-2  • A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence.

8.   Delusional compulsion 16-3-3 •    A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.

9. Insanity or Mental Incompetency at time of crime 17-7-131 “Insane at the time of the crime" or “mentally ill” or “mentally retarded” shall not include a mental state manifested only by repeated unlawful or antisocial conduct.

10. Bank Camera captures picture of killers--1996

11. “Lawyer Reveals Secret; Toppling Death Sentence” New York Times 1/19/2008

12. Ford v. Wainwright • May not execute insane inmate

13. Ake v. Oklahoma • Use of expert witnesses

14. Sterilization of People with Disabilities

15. Buck v. Bell • Definition of people covered • Feebleminded, socially inadequate • Policy justification? • Precedent cases?

16. Buck v. Bell • Jacobson analogy • Contagious disease • Compare: Hendricks v. Kansas

17. 31-20-3.  Sterilization of mentally incompetent persons • "person subject to this Code section“ • [with] mental retardation, brain damage, or both, are irreversibly and incurably mentally incompetent could not provide care and support for any children ….. in such a way that such children could reasonably be expected to survive to the age of 18 years without suffering or sustaining serious mental or physical harm.

18. Conditions • could not provide care and support to childrenwith or without economic aid (charitable or otherwise) from others • condition of such person is irreversible and incurable.

19. Procedures • Petition by parents or legal guardian or a guardian ad litem • judge shall appoint an examining team composed of a psychologist or psychiatrist qualified in the area of mental retardation and brain damage and one physician • Conflict of interest provisions

20. The Examining Team • shall make an investigation and make a report to the court before the hearing • and determine that such person is subject to this Code section • shall include in its report some of the less permanent methods of preventing conception and shall report on the feasibility of each such method • authors shall be subject to cross-examination in court or by deposition • Notice provisions

21. Hospital Committee • a committee of the medical staff of the accredited hospital in which the operation is to be performed must approve the operation

22. Court Standard • clear and convincing evidence, • order and judgment authorizing the physician to perform sterilization procedure

23. Additional Rights of the “person subject” • An appeal to the superior court in the form of a trial de novo; • On application, the trial may be heard before a jury and closed to the public • The decision of the superior court may be appealed to the higher state courts • “Person subject” has the right to counsel

24. Estate of C.W., an Alleged Incompetent • “24 year old mute woman with a mental age of 3‑5. She suffers from moderately severe retardation, grand mal epilepsy, cerebral palsy and scoliosis” • “crucial question” : is sterilization in the best interest of the incompetent?

25. Terwilliger Standard • All less drastic contraceptive methods are unworkable and, • The sterilization procedure requested is the least significant intrusion necessary.

26. Considerations • The possibility that the incompetent person will experience trauma or psychological damage if she becomes pregnant or gives birth, and, the possibility of trauma or psychological damage from the sterilization operation. • The likelihood that the individual will voluntarily engage in sexual activity or be exposed to situations where sexual intercourse is imposed upon her. • The inability of the incompetent person to understand reproduction or contraception and the likely permanence of that inability.

27. Considerations • The ability of the incompetent person to care for a child, or the possibility that the incompetent may at some future date be able to marry and, with a spouse, care for a child. • Medical advances may occur to improve the individual's condition or perfect less drastic sterilization procedures. • The proponents of sterilization are seeking sterilization in good faith in best interests of the incompetent person rather than personal or public convenience.

28. Conservatorship of the Person of Valerie N. • How would she fare under Pennsylvania law? • Under Georgia Law

29. In Re Bobbijean • Sterilization of Drug Addicted Parents