The Scholar: St. Mary's Law Review on Race and Social Justice


Graham Baker


Although the Supreme Court of the United States ruled it is cruel and unusual to execute someone with a mental handicap, Texas statutes still do not adequately protect these individuals. Previously, the Court in Penry v. Lynaugh upheld states executing individuals with mental deficiencies. However, individual states began to outlaw such a practice. When the Court heard Atkins v. Virginia, they determined the states created a national consensus against executing persons who possess certain developmental disabilities, thus rendering it cruel and unusual. Atkins did not, however, define mental retardation and left it up to individual states to determine that criteria. Without statutory regulation, courts ultimately must decide what definition to give mental retardation, when to decide if a defendant is mentally retarded, and whether the court or the jury should make the determination. The Texas legislature proposed competing bills in regard to this exact issue. Without their guidance, the Texas Court of Criminal Appeals needed to step in and offer their leadership. This court in Ex parte Briseno adopted a widely accepted definition of mental retardation and modified it with numerous evidentiary considerations which would aid in determining one’s level of criminal culpability. Under this ruling, a defendant must prove their mental retardation is sufficient to warrant diminished culpability to escape execution under Atkins. Thus, if the fact finder determines the evidence of impairment is aggravating instead of mitigating, a mentally retarded defendant may still receive the death penalty. The Texas legislature must prescribe an Atkins procedure to resolve these issues.

Volume Number


Issue Number



St. Mary's University School of Law



Included in

Criminal Law Commons