RESOLUTION SUPPORTING LEGISLATION WHICH OPPOSES THE IMPOSITION OF THE DEATH PENALTY ON PERSONS WITH MENTAL RETARDATION AND REQUIRES PRE-TRIAL DETERMINATION OF THE DEFENDANT'S MENTAL RETARDATION

WHEREAS, the United States Supreme Court held in a 6-3 decision in Atkins v. Virginia, 122 S. Ct. 2242 (June 20, 2002) that it was a violation of the Eighth Amendment to execute a person who has mental retardation; and

WHEREAS, the Supreme Court held that the execution of a person with mental retardation would violate the Constitution, but did not set out any standards for state legislatures to implement its decision; and

WHEREAS, several members of the Pennsylvania legislature have introduced at least three (3) bills to address the issue of the implementation of the Atkins decision; and

WHEREAS, there are two (2) primary issues to be resolved in any legislation regarding the execution of persons with mental retardation: (1) the process by which determination of mental retardation is made; and (2) the definition of mental retardation; and

WHEREAS, Senate Bill No. 26, Printer's No. 27 ("SB 26") and House Bill No. 576, Printer's No. 678 ("HB 576") provide for pretrial determination by the judge of whether the defendant has mental retardation and uses the nationally recognized definition of mental retardation in making a determination; and

WHEREAS, SB 26 and HB 576 eliminate the need and cost of a capital murder trial if the defendant is determined to have mental retardation; and

WHEREAS, in contrast, HB 1073 provides that the determination of whether a defendant has mental retardation is made by the jury after an entire capital murder trial has been conducted, which exposes the defendant to the likely undue prejudice of a jury who has already heard damaging evidence of the capital murder(s); and

WHEREAS, SB 26 and HB 576 use the nationally recognized definition of mental retardation, i.e., IQ of 70 or below, diagnosed prior to age 18 and coupled with evidence of significant limitation in two or more adaptive skill areas, as found in the DSM-IV and acknowledged by the American Association of Mental Retardation ("AAMR"); and

WHEREAS, in contrast, HB 1073 uses a definition of mental retardation which is inconsistent with the definition found in the DSM-IV, i.e., an upper limit IQ of 70 without consideration of the evidence of significant limitation in two or more adaptive skill areas; and the imposition of an additional requirement that the diagnosis of mental retardation was present from early in childhood development and revealed by contemporaneous written records from early childhood; and

WHEREAS, on April 25, 2003, the Pennsylvania Bar Association House of Delegates approved a resolution of its Criminal Law Section that supports SB 26 and admonishes the Legislature to fine tune the definition of mental retardation in accordance with either the American Association on Mental Retardation, the American Psychiatric Association or like mental health-related organizations; and

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association supports enactment of Senate Bill No. 26, Printer's No. 27 and House Bill No. 576, Printer's No. 678, or similar legislation and opposes House Bill No. 1073, Printer's No. 1253 or similar legislation; and

NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association authorizes the Chancellor, or her designee, to take all necessary steps, including contacting the appropriate members of the Pennsylvania Senate and House of Representatives, regarding this Association's support for Senate Bill SB 26 and House Bill HB 576, or similar legislation and its opposition to House Bill HB 1073, or similar legislation.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: May 28, 2003