Van Tran v. State

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 4, 2001 Session

HECK VAN TRAN v. STATE OF TENNESSEE

Appeal by permission from the Court of Criminal Appeals
Criminal Court for Shelby County
No. P-14409 John P. Colton, Judge

No. W2000-00739-SC-R11-PD - Filed December 4, 2001

We granted this appeal to determine whether the trial court and the Court of Criminal
Appeals erred by denying the petitioner’s motion to reopen his post-conviction petition. In his
motion, the petitioner asserted that new evidence establishes that he is mentally retarded and,
therefore, ineligible for the death penalty under Tenn. Code Ann. § 39-13-203, which prohibits the
execution of the mentally retarded. The petitioner also argued on appeal that the Eighth Amendment
to the United States Constitution and article I, § 16 of the Tennessee Constitution prohibit the
execution of mentally retarded individuals.

After careful consideration, we conclude that the General Assembly did not clearly intend
to apply Tenn. Code Ann. § 39-13-203 retroactively and that the statute therefore provides no basis
to reopen a post-conviction suit for a petitioner who was sentenced before its effective date. We also
conclude, however, that the Eighth Amendment to the United States Constitution and article I, § 16
of the Tennessee Constitution prohibit the execution of mentally retarded individuals because such
executions violate evolving standards of decency that mark the progress of a maturing society, are
grossly disproportionate, and serve no valid penological purpose in any case. We therefore reverse
the judgment of the Court of Criminal Appeals and remand the case to the trial court for further
proceedings.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed;
Remanded to Trial Court

E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and ADOLPHO A. BIRCH, JR., join. WILLIAM M. BARKER, J., filed a concurring and dissenting
opinion, in which JANICE M. HOLDER, J., joined.

Brock Mehler, Nashville, Tennessee, and William D. Massey, Memphis, Tennessee, for the
appellant, Heck Van Tran.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Alice B.
Lustre and Jennifer L. Smith, Assistant Attorneys General, Nashville, Tennessee, for the appellee,
State of Tennessee.

OPINION

Background

In 1989 the petitioner, Heck Van Tran, was convicted of three counts of felony murder and
sentenced to death on each count for his role in killing three people during a robbery at a Memphis
restaurant. On appeal, this Court affirmed all three of the murder convictions and one of the death
sentences. State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993).1

While this case was pending on direct appeal, the General Assembly enacted Tenn. Code
Ann. § 39-13-203 (1991), which provided in part as follows:

(a) As used in this section, "mental retardation" means:

(1) Significantly subaverage general intellectual functioning as
evidenced by a functional intelligence quotient (I.Q.) of seventy
(70) or below;

(2) Deficits in adaptive behavior; and

(3) The mental retardation must have been manifested during the
developmental period, or by eighteen (18) years of age.

(b) Notwithstanding any provision of law to the contrary, no
defendant with mental retardation at the time of committing first
degree murder shall be sentenced to death.

(c) The burden of production and persuasion to demonstrate mental
retardation by a preponderance of the evidence is upon the
defendant. The determination of whether the defendant was
mentally retarded at the time of the offense of first degree murder
shall be made by the court.

1
Two of the death sentences were remanded for resentencing on the basis that the evidence was
insufficient to establish one of the aggravating circumstances relied upon by State and that the error was not harm less
beyond a reaso nab le doubt. State v. Van Tran, 864 S.W.2d at 480. On remand the petitioner received two concurrent
life sentences fo r these offen ses.

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 ***

(e) If the issue of mental retardation is raised at trial and the court
determines that the defendant is not a person with mental
retardation, the defendant shall be entitled to offer evidence to the
trier of fact of diminished intellectual capacity as a mitigating
circumstance pursuant to § 39-13-204(j)(8).

This statute became effective on July 1, 1990.2

On March 7, 1995, Van Tran filed a petition seeking post-conviction relief that relied in part
upon this statute as a basis for setting aside his sentence of death. An evidentiary hearing was
conducted in October of 1997. Prior to this hearing, Dr. Andrew J. Adler, a licensed psychologist,
tested petitioner using the Wechsler Adult Intelligence Scale-Revised (“WAIS-R”)3 and a Vineland
Adaptive Behavior Scale. Dr. Adler testified at the post-conviction hearing in 1997 that petitioner
had a full scale I.Q. of 67 and that he had deficits in adaptive behavior that had manifested during
the developmental period before the age of eighteen (18). Dr. Adler concluded that the petitioner
was mentally retarded as defined by Tenn. Code Ann. § 39-13-203(a).

Dr. Lynn Zager, a psychologist called as a witness by the State, testified that the petitioner’s
I.Q. was actually 72 with a standard error measurement of plus or minus three, rather than 67 as
testified by Dr. Adler. Dr. Zager testified that Dr. Adler had made a clerical error in applying the
conversion chart. The trial court credited Dr. Zager’s testimony and dismissed the petition for post-
conviction relief. The dismissal was affirmed both by the Court of Criminal Appeals and by this
Court without addressing the statutory or constitutional issue of executing a mentally retarded
defendant. See Van Tran v. State, No. 02C01-9803-CR-00078, 1999 WL 177560, at *6 (Tenn.
Crim. App. Apr. 1, 1999); Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999).

In December of 1999, Dr. Adler again tested the petitioner’s I.Q., this time using the
Wechsler Adult Intelligence Scale -Third Edition (“WAIS-III”), an updated version of the WAIS-R.
Dr. Adler determined that petitioner’s full-scale I.Q. is 65. Relying upon this data, petitioner filed

2
This statute, w hich is now codified in Ten n. Co de A nn. § 39-13-203 (1997), adopted the nationally
accepted definition of me ntal retardatio n. See Penry v. Lynaugh, 492 U.S. 302, 308 n.1, 109 S. Ct. 2934, 2941, n.1,
106 L. Ed. 2d 256 (1989) (“Persons who are mentally retarded are described as having ‘significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental
perio d.’ American Association on M ental Deficiency (now Retardation) (AAMR ), Classification in Mental Retardation
1 (H. Grossman ed. 1983)). To be classified as mentally retarded, a person generally must have an IQ of 70 or below.
Id., at 11.”).

3
During the origina l trial in 1989, evidence was introduced to show that the petitioner had below
average intellectual functioning, but no standardized test was administered, and there was no evidence introduced as
to his intelligence quotient (“I.Q.”).

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a motion on February 7, 2000 seeking to reopen his previous post-conviction petition pursuant to
Tenn. Code Ann. § 40-30-217 (1997), which provides in pertinent part:

(a) A petitioner may file a motion in the trial court to reopen the first
post-conviction petition only if the following applies:

(1) The claim in the motion is based upon a final ruling of an
appellate court establishing a constitutional right that was not
recognized as existing at the time of trial, if retrospective application
of that right is required. Such motion must be filed within one (1)
year of the ruling of the highest state appellate court or the United
States supreme court establishing a constitutional right that was not
recognized as existing at the time of trial; or

(2) The claim in the motion is based upon new scientific evidence
establishing that such petitioner is actually innocent of the offense or
offenses for which the petitioner was convicted; or

***

(4) It appears that the facts underlying the claim, if true, would
establish by clear and convincing evidence that the petitioner is
entitled to have the conviction set aside or the sentence reduced.

The motion was accompanied by an affidavit from Dr. Adler stating both the results of the WAIS-III
and Dr. Adler’s conclusion that the petitioner is mentally retarded as defined by Tenn. Code Ann.
§ 39-13-203(a).

The trial court issued a preliminary order denying the petitioner’s motion to reopen, and the
Court of Criminal Appeals denied the petitioner’s application for permission to appeal. Thereafter,
the petitioner filed an application for permission to appeal which this Court granted. Following oral
argument, this Court entered a unanimous order directing the parties to file supplemental briefs
addressing an issue of first impression for this Court: whether the Eighth Amendment to the United
States Constitution or article I, § 16 of the Tennessee Constitution prohibits executing a mentally
retarded defendant. For the following reasons, we reverse the judgments of trial court and the Court
of Criminal Appeals and remand the case to the trial court for further proceedings.

Mental Retardation

Although the statutory definition of mental retardation in Tennessee adopts the nationally
accepted definition of mental retardation, see Penry v. Lynaugh, 492 U.S. 302, 308 n.1, 109 S. Ct.
2934, 2941 n.1, 106 L. Ed. 2d 256 (1989), no commentary or background is provided on the nature
of mental retardation. As one writer has observed, “mental retardation is a debilitating mental defect

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that is understood by few and accepted by even fewer.” Juliet L. Ream, Capital Punishment for
Mentally Retarded Offenders: Is it Morally and Constitutionally Impermissible?, 19 Sw. U. L. Rev.
89, 106 (1990). To provide some understanding and context, we will briefly discuss the general
characteristics and background of mental retardation before turning to the precise issues in this case.

The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)4 defines a mentally
retarded person as one who has “significantly subaverage general intellectual functioning”
accompanied by “significant limitations in adaptive functioning in at least two of the following skill
areas: communication, self-care, home living, social/ interpersonal skills, use of community
resources, self-direction, functional academic skills, work, leisure, health, and safety.” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 39 (4th ed. 1994).
Like the statutory definition, the DSM-IV requires that the intellectual and adaptive deficits manifest
themselves by the time the person is eighteen years of age. Id.

The first part of the definition – subaverage general intellectual functioning – is based on
Intelligence Quotient (“I.Q.”) scores that are obtained through the use of standardized intelligence
tests. The DSM-IV uses the following scales:

IQ of 50-55 to approximately 70: mild mental retardation

IQ of 35-40 to 50-55: moderate mental retardation

IQ of 20-25 to 35-40: severe mental retardation [and]

IQ below 20-25: profound mental retardation.

Id. at 40. To put these scales into a broader context, the DSM-IV states that mental retardation has
a prevalence rate of about one percent of the population. Of this one percent, eighty-five percent are
mildly retarded; ten percent are moderately retarded; three to four percent are severely retarded; and
one to two percent are profoundly retarded. See id. at 41-42.

The second part of the definition – adaptive functioning – “refers to how effectively
individuals cope with common life demands and how well they meet the standards of personal
independence expected of someone in their particular age group, socio-cultural background, and
community setting.” Id. at 40. As discussed, a mentally retarded person will have significant
limitations in at least two of the following basic skills: “communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional academic skills,

4
The DSM-IV is the treatise referred to and relied upon in the m ental h ealth field for the discussion
and diagnosis of mental disorders. We refer to it for the purpose of providing insight and background into mental
retardation and not fo r the purpose o f exp and ing u pon or interpreting the statuto ry definition in T enn essee. See State
v. Sm ith, 893 S.W.2d 908 (Tenn. 1994).

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work, leisure, health, and safety.” Id. at 39. Influences on adaptive functioning may include the
individual’s “education, motivation, personality characteristics, social and vocational opportunities,
and the mental disorders and general medical conditions that may coexist with Mental Retardation.”
Id. at 40.

Despite the various classifications and wide range of factors, the DSM-IV makes it crystal
clear that all mentally retarded individuals bear substantial limitations in both intelligence and
functioning.5 All persons with mild mental retardation may attain academic skills up to only the
sixth grade level, but some may attain various levels of life and work skills with supervision and
support. Id. at 41. A person with moderate mental retardation may learn to attend to self-care and
perform basic work skills under supervision, yet can attain academic skills up to only the second
grade level. Id. A person with severe mental retardation may learn to talk and may be trained in
elementary self-care skills with supervision. Id. Finally, a person with profound mental retardation
displays significant impairments and requires constant care in a highly structured and supervised
environment. Id. at 41-42.

There are, therefore, varying degrees of mental retardation, yet each is by definition marked
by significant and serious impairments to intelligence and adaptive functioning. As one
commentator has said, “The[] labels [of mental retardation] should be cautiously applied . . . because
they may be misleading – mildly retarded people are substantially disabled, but only mildly so when
compared to other [mentally retarded people].” Capital Punishment for Mentally Retarded
Offenders, 19 Sw. U. L. Rev. at 107 (emphasis added).

As we examine the nature and characteristics of mental retardation, we find it striking that
the substantial impairments of all mentally retarded individuals outlined above are largely ignored
in the dissenting opinion. Indeed the premise of the dissent is that the “mere fact” of mental
retardation warrants no constitutional consideration unless accompanied by a cognitive, moral, or
volitional incapacity such as the inability to distinguish right from wrong, understand the nature of
one’s actions, or conform one’s conduct to the requirements of law. The dissent offers no
controlling or persuasive Tennessee authority for its analysis of mental retardation and its effects;
indeed, neither the nationally recognized definition of mental retardation nor the statute enacted by
the Tennessee legislature contains the cognitive, moral, or volitional components argued by the
dissent.

Instead, the dissent argues that State v. Laney, 654 S.W.2d 383 (Tenn. 1983), is dispositive
of the constitutional issue in this case. The defendant in Laney, however, had an I.Q. over 70 and
argued only that the execution of a person with “low intelligence” was cruel and unusual

5
Indeed, the American Association for Mental Retardation, (AAMR), no longer uses the terms “m ild,”
“m ode rate,” “severe,” or “profound.” See Lyn Entzeroth, Putting the Mentally Retarded Criminal Defendant to Death:
Charting the Development of a National Consensus to Exempt the Mentally Retarded From the D eath P enalty, 52 Ala.
L. Rev. 911, 915 (2001). It has instead developed a profile based on the levels of support that a mentally retarded person
may require, such as “intermittent, limited, extensive and pervasive.” See id. at 915 n.4 1.

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punishment. Moreover, Laney was decided prior to the passage of Tenn. Code Ann. § 39-13-203
(1991). Accordingly, even a cursory review of Laney reveals that this Court did not address mental
retardation, its implications, or the constitutionality of executing mentally retarded defendants under
article I, § 16 of the Tennessee Constitution.

Moreover, the dissent’s analysis would, in numerous instances, effectively require the
mentally retarded offender to all but establish an affirmative defense of legal insanity in order to
avoid the death penalty. See Tenn. Code Ann. § 39-11-501(a) (1997). This argument avoids the
constitutional issue in this case given the fact that the legally insane are already constitutionally
protected from execution. See Van Tran v. State, 6 S.W.3d at 262. Accordingly, we undertake our
review while bearing in mind the nationally recognized fact that every person who is mentally
retarded has significant and serious impairments to intelligence and everyday functioning.

Retroactive Application

Given this background and understanding of mental retardation, it is hardly surprising that
in 1990 the Tennessee legislature enacted legislation to prohibit the execution of mentally retarded
persons. See Tenn. Code Ann. § 39-13-203 (1991). Eighteen other jurisdictions have also
prohibited such executions by statute.6 A threshold issue in this case is whether the Tennessee
statute prohibiting imposition of a death sentence upon persons who are mentally retarded applies
retroactively to mentally retarded prisoners who had been sentenced to death in Tennessee before
July 1, 1990, the effective date of the statute.

The petitioner asserts that the General Assembly did intend for the statute to be retroactively
applied and that this intent is implicit in subsection (b) of the statute stating that it applies
“notwithstanding any provision of law to the contrary.” Furthermore, the petitioner argues that this
Court should apply the rule of leniency, which mandates that any ambiguity be resolved by
construing a statute in favor of the defendant. Since his case was pending on appeal on July 1, 1990,
the effective date of the statute, the petitioner contends that, both as a matter of policy and by
analogy to constitutional rules that are applied to cases still in the appellate process when the rule
is announced, this new, “remedial” statute should be retroactively applied to his case.

The State responds, however, that the General Assembly did not intend to give retroactive
application to Tenn. Code Ann. § 39-13-203 because the statute provided only an effective date of

6
See 2001 Ariz. Legis. Serv. ch. 260 (S.B. 1551) (West); Ark. Code Ann. § 5-4-618; Colo. Rev . Stat.
Ann. § 16-9-402; 2001 Conn. Legis. Serv. P.A. 01-151 (S.B. 1161) (West); 2001 Fla. Sess. Law Serv . ch. 2001-202
(C.S.S.B. 238 (W est); Ga. Cod e Ann. § 17-7-131; In d. Co de A nn. § § 35 -36-2-5 & 3 5-36-9-2, et seq.; Kan. Crim. Code
Ann. § 21 -4623, et seq.; Ky. Rev. Stat. Ann. § 532.140; Md. An n. Co de of 1957, art. 27, § 412; 2001 Mo. Legis. Serv.
S.B. 267 (Vernon’s); Neb. Rev. Stat. § 28-105.01; N.M. Rev. Stat. § 31-20A-2.1; N.Y. Crim. Proc. Law § 400.27; 2001
N.C. Legis. Serv. S.B. 173 (West); S.D. Codified Laws § 23A-27A-26.1; Tenn. Code Ann. § 39-13-203; Wash. Rev.
Code A nn. § 10.9 5.03 0; see also 18 U .S.C.A . § 35 96.

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July 1, 1990, and it contained no other specific language requiring retroactive application.7 The State
relies upon the general rule of statutory construction which provides that statutes are to be applied
prospectively in the absence of clear legislative intent to the contrary. Citing numerous Public Acts,
the State argues that when the General Assembly intends to apply a statute retroactively, specific
language indicating this intent is included in the statute.8

The State also notes that the express language of the statute governed only future sentencing
hearings, i.e., “no defendant with mental retardation at the time of committing first degree murder
shall be sentenced to death.” Tenn. Code Ann. § 39-13-203(b) (1991). The State contends that this
language is a clear expression of the General Assembly’s intent that the statute apply only to
sentencing hearings occurring after its effective date of July 1, 1990. According to the State, the
General Assembly expressed its intent that the statute apply prospectively by failing to include a
method by which persons already sentenced to death could raise the issue of mental retardation.

We agree that it is a well-settled rule that statutes are to be applied prospectively in the
absence of clear legislative intent to the contrary. See, e.g., State v. Cauthern, 967 S.W.2d 726
(Tenn. 1998). With respect to the specific Tennessee mental retardation statute, we also agree with
the State that there is no express language indicating that it must be given retroactive application.
The General Assembly included only an effective date of July 1, 1990, with no language requiring
the statute to be applied to death sentences imposed before that date. Moreover, the statute does not
contain a procedure by which mentally retarded persons sentenced to death before July 1, 1990, can
raise mental retardation as a bar to execution, nor does it mention post-conviction proceedings as an
avenue for challenging a death sentence on the basis of mental retardation.9

On the other hand, the petitioner correctly points out that the statute contained language
making it applicable “notwithstanding any provision of law to the contrary.” See Tenn. Code Ann.
§ 39-13-203(b) (1991). In our view, this broad, ambiguous language warrants examination of the
legislative history of the statute to determine legislative intent. Notably, during Senate debates on
the bill, an amendment was offered to explicitly provide that the statute apply only to persons who
committed first degree murder after its effective date. That amendment met with disapproval and
was withdrawn without a formal vote. One Senator spoke strongly against the amendment:

Why have this amendment? If we are going to establish a state policy
that what we have done in times past is wrong and that from a certain

7
See 1990 Tenn. Pub. Acts ch. 1038.
8
See, e.g., 199 4 T enn. P ub. Acts ch. 552 (“This act shall take effect upon beco ming a law, the p ublic
welfare requiring it, and sh all be retroactive in application to January 1 , 199 0.”); 1993 Tenn Pub. Acts ch. 387 (“This
act shall take effect upon becom ing a law, the public welfare requiring it, and shall apply retro actively to any applicab le
process, warrant, precept or summons that has been held for more than five (5) years.”).
9
Similarly, the 1995 Po st-Conviction P rocedures Act do es not mention mental retardation as a basis
for reopening a prior petition for post-conviction relief so as to challenge a sentence of death.

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 date we’re going to correct our error, I just don’t understand that. I
understand that . . . maybe we want to hold costs down, but I don’t
understand how that balances with the importance of this bill, and I
don’t think we ought to adopt this amendment. If what we’re doing
here is right, and I think it is right, then it ought to be the right for
everybody and not some people cut off by a certain date in time.

Tenn. S., Debate on H.B. 2107 on the Floor of the Senate, 96th Gen. Assembly, 2nd Reg. Sess. (Apr.
12, 1990) (Tape S-106B) (Substituted for S.B. 1851) (remarks of Sen. Lewis). The legislature’s
failure to clearly provide for retroactive operation may have been a product of oversight or may have
been based on the assumption that no prisoner then on death row was mentally retarded. See Tenn.
H.R., Debate on Tenn. H.B. 2107 on the Floor of the House, 96th Gen. Assembly, 2nd Reg. Sess.
(Apr. 5, 1990) (Tape H-62) (remarks of Rep. Jackson) (stating, in response to a question, that there
were no mentally retarded inmates on Tennessee’s death row at that time).

In any event, although the issue as to retroactive application of the statute is close, we
conclude that the absence of express language providing for retroactive application supports the
conclusion that the legislature did not expressly intend such an application. As the State contends,
other Public Acts demonstrate that when retroactive application is intended, the General Assembly
includes specific, clear language expressing its intent. Such clear language is absent from Tenn.
Code Ann. § 39-13-203. In short, notwithstanding the presence of some ambiguous language in the
statute and in the legislative history, there is no evidence of a clear legislative intent to apply the
statute retroactively as required by the general rule. We therefore conclude that the trial court and
Court of Criminal Appeals properly denied the petitioner’s motion to reopen on this ground. See
Tenn. Code Ann. § 40-30-217(a)(2) (1997).

Constitutional Principles

We next turn to the argument that the execution of mentally retarded persons constitutes cruel
and unusual punishment in violation of the Eighth Amendment to the United States Constitution and
article I, § 16 of the Tennessee Constitution. Although the argument was not expressly set out in the
defendant’s motion to reopen, we ordered the parties to file supplemental briefs on this constitutional
issue because it is uniquely intertwined with the statutory issue and the critical, overriding question
of whether a defendant who is mentally retarded may legally be executed in this State.

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 Although the Court was unanimous in its determination to reach this critical constitutional
issue, and the State has not objected, the dissent now argues that the issue should be avoided.10 The
dissent’s arguments are misplaced. A motion to reopen, by definition, is based on a new legal issue
or new scientific evidence of actual innocence that serves as a new basis to “reopen” the earlier post-
conviction proceeding. Tenn. Code Ann. § 40-30-217(a) (1997). Having identified that the unique
but narrow circumstances of this case raise serious constitutional implications of first impression,
a majority of this Court has decided to address these critical issues.11 As noted, the State has raised
none of the procedural objections argued by the dissent and the parties have neither briefed nor
argued them. As this Court has very recently said, “‘[T]he importance of correctly resolving
constitutional issues suggests that constitutional issues should rarely be foreclosed by procedural
technicalities.’” In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001) (citation omitted).

We therefore begin our review of this issue by examining the relevant constitutional
provisions. The Eighth Amendment provides that “[e]xcessive bail shall not be required, no
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.
The language in article I, § 16 is nearly identical: “That excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” Tenn. Const. art. I, § 16.

One of the first cases in which the United States Supreme Court analyzed the phrase “cruel
and unusual punishment” was Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793
(1910). In holding that a sentence of 15 years of hard, enchained labor for the offense of falsification
of a public document was cruel and unusual punishment, the Court said:

Time works changes, brings into existence new conditions and
purposes. Therefore a principle, to be vital, must be capable of wider
application than the mischief which gives it birth.

...

The [cruel and unusual punishments clause], in the opinion of learned
commentators, may be therefore progressive, and is not fastened to
the obsolete, but may acquire meaning as public opinion becomes
enlightened by a humane justice.

10
Although not raised in briefing by the State, the dissent cites the doctrine of waiver and this Court’s
decision in West v. State, 19 S.W.3d 753 (Ten n. 20 00), which held that the p lain error doctrin e is not applicable in po st-
conviction. Th is Co urt has never discussed the applicability of these doctrines in the context of a motion to reopen,
which by definition m ust be founded upon a n ew legal issue or newly discovered scientific evidence of actual
innocence. Moreover, the Court has never discussed the applicability of these doctrines under circumstances similar
to this case.
11
See, e.g., Fletcher v. State, 951 S.W .2d 3 78 (Tenn. 19 97) (holding that this C ourt ha s authority to
review an appeal from the denial of a motion to reopen despite the absence of a statutory provision governing such
review by the Supreme Court).

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Weems v. United States, 217 U.S. at 373, 378, 30 S. Ct. at 551, 553 (citations omitted). The Court
later reaffirmed this analysis of the Eighth Amendment:

[T]he words of the Amendment are not precise, and . . . their scope
is not static. The Amendment must draw its meaning from the
evolving standards of decency that mark the progress of a maturing
society.

Trop v. Dulles, 356 U.S. 86, 100-01, 78 S. Ct. 590, 598 (1958) (emphasis added).

With these principles in mind, the United States Supreme Court has fashioned a three-prong
analysis for determining whether a punishment constitutes cruel and unusual punishment under the
Eighth Amendment:

First, does the punishment for the crime conform with contemporary
standards of decency? Second, is the punishment grossly
disproportionate to the offense? Third, does the punishment go
beyond what is necessary to accomplish any legitimate penological
objective?

State v. Ramseur, 524 A.2d 188, 210 (N.J. 1988) (citing Gregg v. Georgia, 428 U.S. 153, 173, 96
S. Ct. 2909, 2925, 49 L. Ed. 2d 859 (1976)). This Court has applied the same analysis to determine
whether a particular punishment constitutes cruel and unusual punishment under article I, § 16 of
the Tennessee Constitution. See State v. Black, 815 S.W.2d 166, 189 (Tenn. 1991). As explained
below, we conclude that each of these factors supports the conclusion that executing the mentally
retarded is cruel and unusual punishment under article I, § 16 of the Tennessee Constitution.12

As the State correctly observes, the United States Supreme Court held in 1989 that the
execution of mentally retarded individuals is not per se precluded under the Eighth Amendment to
the United States Constitution. See Penry v. Lynaugh,492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d
256 (1989). Because of the nature of the analysis and its consideration of contemporary values,
however, it is unclear whether executing mentally retarded persons currently violates the Eighth
Amendment. The United States Supreme Court has very recently granted certiorari to revisit its five

12
The dissent’s assertion that we h ave cited n o authority in our an alysis is plainly in correct. We rely
upon the well-established analysis of article I, § 16 as set forth in State v. Black, 815 S.W.2d at 189. We also rely upon
the defin ition of mental re tardation accep ted both n ationally an d in Tennessee. We have cited no Tennessee case law
which hold s that it is un con stitutional to ex ecute the mentally retarded because none exists. Indeed, one of the
fundamental roles of this Court is often to confront and to determine issues of first impression.

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to four Penry decision. See Daryl Renard Atkins v. Virginia, No. 00-8452, 121852 W.L. 2001 (U.S.
Sept. 25, 2001).13

Moreover, irrespective of whether the United States Supreme Court adheres to or overrules
Penry, it is axiomatic that this Court may extend greater protection under the Tennessee Constitution
than is provided by the United States Supreme Court’s interpretations of the federal constitution.
See State v. Black, 815 S.W.2d at 189. Accordingly, although we will refer to relevant analysis
under the Eighth Amendment, all of our opinions and conclusions with respect to the execution of
mentally retarded individuals – an issue of first impression for this Court – are separately and
independently based upon article I, § 16 of the Tennessee Constitution.

Evolving Standards of Decency

Nationally

The first of the factors set forth in Black, whether the punishment conforms with
contemporary standards of decency, is arguably the most crucial. The United States Supreme Court
emphasized in Penry that “[t]he prohibitions of the Eighth Amendment are not limited . . . to those
practices condemned by the common law in 1789. The prohibition against cruel and unusual
punishments also recognizes the ‘evolving standards of decency that mark the progress of a maturing
society.’” Penry v. Lynaugh, 492 U.S. at 330-31, 109 S. Ct. at 2953 (citations omitted). Thus, if a
punishment fails to conform with contemporary standards of decency, it is unconstitutional under
the Eighth Amendment regardless of whether it satisfies the other factors of the analysis.

In defining contemporary standards of decency, a reviewing court must look to “objective
evidence of how our society views a particular punishment today.” 492 U.S. at 331, 109 S. Ct. at
2953 (citations omitted). In Penry, the United States Supreme Court stressed that the “clearest and
most reliable objective evidence of contemporary values is the legislation enacted by the country’s
legislatures.” Id. When Penry was decided in 1989, only two states, Georgia and Maryland, had
legislation prohibiting the execution of mentally retarded persons convicted of a capital offense. See
492 U.S. at 334, 109 S. Ct. at 2955. A majority of the Court concluded that these two states, even
when added to the fourteen states that had no provisions for capital punishment, did “not provide
sufficient evidence . . . of a national consensus.” Id.

The Penry Court’s conclusion with regard to societal consensus based on state legislative
action alone at the time was consistent with its analogous Eighth Amendment cases. In Ford v.
Wainwright, for instance, the Court found a societal consensus against the execution of the insane

13
Although the Court initially granted certiorari to review this issue in McCarver v. North Carolina, ___
U.S. ___, 121 S. Ct. 1401 (M ar. 26 , 2001) (order granting certiorari), the order granting certiorari was later dismissed
on motion of the Attorney General of N orth Caro lina in light of recen t North Carolin a legislation that retroactively
prohibits exec ution of the me ntally retarded. In spite of the Su prem e Co urt’s obvio us intent to revisit this ex trem ely
serious and difficu lt issue first in McCarver and now in Atkins, the dissent finds the majority’s holding in the present
case “curiously contrary to the well reasoned” decision in Penry.

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where no state permitted such executions and twenty-six states had statutes suspending executions
where a convicted defendant later became legally insane. 477 U.S. 399, 408 n.2, 106 S. Ct. 2595,
2601 n.2, 91 L. Ed. 2d 335 (1986). In Thompson v. Oklahoma, a plurality indicated that a societal
consensus against the execution of persons under the age of 16 existed where eighteen states had
statutes requiring a minimum age of 16 at the time of the offense before execution. 487 U.S. 815,
829, 108 S. Ct. 2687, 2695, 101 L. Ed. 2d 702 (1988); see also Tenn. Code Ann. § 37-1-134(a)(1)
(2001) (a minor defendant under the age of 18 at the time of the offense who is transferred to
criminal court for trial as an adult is not subject to the death penalty for that offense). In sum, the
two states prohibiting execution of mentally retarded persons in 1989 did not create the consensus
found by members of the Court in both Ford and Thompson.

It is immediately apparent, however, that the legislative landscape following Penry has
undergone a dramatic transformation. Since the decision, no fewer than sixteen states – Arizona,
Arkansas, Colorado, Connecticut, Florida, Indiana, Kansas, Kentucky, Missouri, Nebraska, New
Mexico, New York, North Carolina, South Dakota, Tennessee, and Washington – have joined
Georgia and Maryland in enacting legislation prohibiting the execution of mentally retarded
individuals.14 The federal government likewise passed legislation prohibiting such executions.15

The majority of these jurisdictions enacted the legislation prohibiting the execution of
mentally retarded persons following the Penry decision. Jonathan L. Bing, Protecting the Mentally
Retarded From Capital Punishment: State Efforts Since Penry and Recommendations for the Future,
22 N.Y.U. Rev. L & Soc. Change 59, 116 (1996). Five states – Arizona, Connecticut, Florida,
Missouri, and North Carolina – enacted the legislation after the United States Supreme Court
indicated in McCarver v. North Carolina, __ U.S. __, 121 S. Ct. 1404 (Mar. 26, 2001), that it would
reconsider Penry and the issue of whether a standard of decency marking a mature society has
evolved against the execution of the mentally retarded. When these nineteen jurisdictions are
considered along with the twelve states that do not have provisions for capital punishment, thirty-one
jurisdictions now do not permit the execution of mentally retarded persons.

In addition to legislative enactments, other evidence supports the conclusion that execution
of the mentally retarded is cruel and unusual punishment. The United States Supreme Court, for
example, has identified “data concerning the actions of sentencing juries” as another relevant
measure of contemporary standards of decency. Penry v. Lynaugh, 492 U.S. at 331, 109 S. Ct. at
2953. Although the data concerning capital jury sentencing tendencies is limited, the information

14
See 2001 Ariz. Legis. Serv. ch. 260 (S.B. 155 1) (W est); Ark. Code An n. § 5 -4-6 18; C olo. R ev. Stat.
Ann. § 16-9 -402; 2001 Conn. Legis. Serv. P.A. 01-151 (S.B. 1161) (West); 2001 Fla. Sess. Law Serv. ch. 2001-202
(C.S.S.B. 238) (West); Ga. Code Ann. § 17-7-131; Ind. Code A nn. § § 35 -36-2-5 & 3 5-36-9-2, et seq.; Kan. Crim. Code
Ann. § 21 -4623, et seq.; Ky. Rev . Stat. Ann. § 532 .140 ; Md. Ann. C ode of 19 57, art. 27, § 412; 2001 Mo. Legis. Serv.
S.B. 267 (Vernon’s); N eb. R ev. Stat. § 28 -105.01 ; N.M . Rev . Stat. § 31-20A-2.1; N.Y. Crim. Proc. Law § 400.27; 2001
N.C. Legis. Serv. S.B. 173 (West); S.D. Codified Laws § 23A-27A-26.1; Tenn. Code Ann. § 39-13-203; Wash. Rev.
Code A nn. § 10.9 5.03 0.

15
See 18 U.S.C.A. § 3596.

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available suggests that the punishment is no longer favored by jurors. The Capital Juror Project, a
South Carolina jury study which this Court has relied upon in the past,16 found that jurors in capital
cases attached “significant mitigating potential” to evidence that the defendant was mentally
retarded. Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?,
98 Colum. L. Rev. 1538, 1539 (1998). In fact, “[e]vidence that the defendant was mentally retarded
was almost as powerful as lingering doubt over his guilt,” with nearly 75 percent of the jurors
surveyed, noting that evidence of mental retardation would make them less likely to vote for death.
See id. at 1564. Although similar studies have not yet been conducted in Tennessee, the authors of
the South Carolina study note that “the available data suggest [that] . . . South Carolina jurors appear
to think much like jurors from several other states taken in the aggregate.” Id. at 1540. Thus, though
not conclusive, this study assuredly lends weight to the assertion that jurors view execution of the
mentally retarded as repugnant to today’s standards of decency.

Moreover, other evidence that mentally retarded persons should not be executed abounds.
The execution of the mentally retarded has been condemned by numerous professional organizations
involved in the treatment of mentally retarded individuals, including the American Association on
Mental Retardation, the Association for Retarded Citizens of the United States, the American
Psychological Association, the Association for Persons with Severe Handicaps, the American
Association of University Affiliated Programs for the Developmentally Disabled, the National
Association of Private Residential Resources, the New York Association for Retarded Children, Inc.,
the National Association of Superintendents of Public Residential Facilities for the Mentally
Retarded, the Mental Health Law Project, and the National Association of Protection and Advocacy
Systems. See Lyn Entzeroth, Putting the Mentally Retarded Criminal Defendant to Death: Charting
the Development of a National Consensus to Exempt the Mentally Retarded from the Death Penalty,
52 Ala. L. Rev. 911, nn.8, 9 (2001) (with accompanying text). The American Bar Association, which
is composed of over 400,000 members representing a large cross-section of the modern legal
community, also opposes the execution of the mentally retarded. See generally Carol Steiker and
Jordan Steiker, Defending Categorical Exemptions to the Death Penalty: Reflections on the ABA’s
Resolutions Concerning the Execution of Juveniles and Persons with Mental Retardation, 61 Law

16
See State v. Hartman , 42 S .W.3d 4 4, 59 (Ten n. 20 01) (reve rsing the defendan t’s death sentence in
light of “residual doubt” evidence not presented to the sentencing jury; citing the Capital Juror Project for the
proposition that “residual doubt is one of the most compelling mitigating circum stances a capital defen dant can establish
to improve h is chances of receiving a life sentence”).

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& Contemp. Probs. 89 (1998). Finally, public opinion polls have repeatedly shown that, even among
death penalty advocates, there is scant support for executing the mentally retarded.17

When this evidence is viewed in conjunction with the legislative enactments and jury studies
discussed above, the conclusion is compelling: executing the mentally retarded is considered cruel
and unusual punishment by numerous facets of contemporary society. Thus, there exists today
evidence of a substantial societal change in attitude since 1989 and, in our opinion, that evidence
warrants a different conclusion. See Ford v. Wainwright, 477 U.S. at 408, 106 S. Ct. at 2601.18

Tennessee

17
Indeed, the majority in Penry cited several public opinion polls including a Texas poll in which 73%
opposed the death penalty for men tally retarded persons, a Florida poll in which 71% opposed the death penalty for
me ntally retarded persons, and a Georgia poll in which 66% opposed the penalty for mentally retarded person s. Penry,
492 U .S. at 334-35, 109 S. Ct. at 2955. As also noted by one com men tator:

A large num ber o f polls . . . reveal a striking consistency in o ppo sition to exec uting the
me ntally retarded. . . . [A]1988 Harris poll measured opp osition to this practice am ong three ethnic
subsam ples, including 2008 Caucasians (70.10% opposed ); 1005 African-Americans (81.60%
opposed ); and 100 A sian-Am ericans (78.10% o pposed).

Polls . . . taken before and after the Penry decisio n also dem onstrate pu blic rejection of the
practice. In the 1987 Nebraska Annual Social Indicators Survey conducted by the University of
Nebrask a’s Bureau of Sociolog ical Re search, 67 .5% of 42 8 resp ond ents oppo sed the dea th penalty
in cases where the defendant was mentally retarded. In an October 1988 poll of 463 Alabama
residents eighteen y ears o r olde r, 71.3 0% of resp ond ents opp osed the death p enalty in cases involving
the mentally retarded. A Decem ber 1989 poll of California residents eighteen years or older found
71.60% of the 448 respo nde nts agreed that it was “not all righ t” to inflict capital punishment on the
me ntally retarded. A recent article collecting polling data from several other states also demonstrated
substantial . . . opposition to executing m entally retarded prisoners in C onn ecticut (84% ), Georgia
(66% ), Indiana (74% ), Kentucky (57% ), Louisiana (78 %), Maryland (82% ), New York (82 %),
Oklaho ma (61 %), South C arolina (56%), Tex as (73/45.4% ), and Virginia (39% ).

Bryan Lester Du pler, An other Look at Evo lving Standard s: Will Decency Pre vail A gainst Executing the M entally
Retarded ?, 52 O kla. L . Rev . 593 , 601 -02 (1999).
18
Although comparisons to a mentally retarded adult’s “mental age” are necessarily imprecise, it is clear
that the intellectu al and adap tive im pairm ents of mentally retarded adults result in a reduced ability to cope with and
function in the every day wo rld. Penry v. Lynaugh, 492 U.S. at 346, 109 S. Ct. at 2961 (Brennan, J., concurring and
dissenting). We therefore believe that legislative enactmen ts similar to Tennessee’s that prohibit the execution of minors
may also be seen as relevant to the societal view opposing execution of the m entally retarded. See Thompson v.
Oklahoma, 487 U.S. at 828 , 108 S. Ct. at 2 695 .

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 Having surveyed the national landscape, we now likewise find substantial evidence of the
evolving societal view in our own state. The Tennessee legislature, which “speaks for the people
on matters of public policy of the state,”19 joined those states trumpeting for an end to the execution
of the mentally retarded. We find it particularly significant that our General Assembly was the first
in the country to respond to the Penry decision by enacting legislation to prohibit the execution of
mentally retarded individuals convicted of a first degree murder. See Tenn. Code Ann. § 39-13-203
(1991). The legislation was passed in the Tennessee House of Representatives by a vote of 81 to 3
and in the Tennessee Senate by a vote of 28 to 3. See Protecting the Mentally Retarded From Capital
Punishment, 22 N.Y.U. Rev. L. & Soc. Change at 116. The very timing of the statute’s passage, less
than a year after the Penry Court held that execution of the mentally retarded did not violate national
standards of decency, suggests that the legislature intended to reject Penry. The legislative history
of the statute reinforces this conclusion. In Senate debates on the bill, for example, Senator Greer
stated:

Some people are framing the issue on this bill as whether you’re for
or against the death penalty. And that’s not really the issue . . . . I
favor the death penalty, but I’m going to vote for . . . [the] bill for this
reason: in my view, it’s just not proper in a civilized society for the
State to be in the business of executing children or those who are
mentally retarded, and I think we ought to pass this bill and that ought
to become the policy of the State.

Tenn. S., Debate on H.B. 2107 on the Floor of the Senate, 96th Gen. Assembly, 2nd Reg. Sess. (Apr.
12, 1990) (Tape S-106B) (Substituted for S.B. 1851). Numerous other legislators echoed Senator
Greer’s concerns. See, e.g., id. (statement of Sen. Darnell) (“I think this, in a civilized society, is a
minimum to say that we’re not going to put . . . [mentally retarded individuals] to death.”);
(statement of Sen. Haynes) (“From a conservative standpoint, I think it’s a protection to society. . . .
I happen to agree with the death penalty. I just don’t believe mentally retarded people ought to be
electrocuted.”). Such statements are convincing evidence that the legislature, in passing this statute,
consciously intended to recognize that the people of Tennessee no longer approved of executing the
mentally retarded.

In considering the statute as a reflection of the emerging societal view in our state, we reject
the dissent’s argument that we have elevated the legislative enactment of the statutory prohibition
into a constitutional rule in violation of Tenn. Const. article I, § 1 or article XI, § 3, or that we have
interfered with the authority of the legislature to set and define applicable punishments in violation
of Tenn. Const. article II, § 2. First, the United States Supreme Court in Penry stressed that “the
clearest and most reliable objective evidence of contemporary values is the legislation enacted by
the country’s legislatures.” 492 U.S. at 331, 109 S. Ct. at 2953. Given this language in Penry, a case
the dissent has described as “well-reasoned,” it is hardly arguable that the societal view in Tennessee
is against the execution of the mentally retarded; indeed the statute was passed by nearly unanimous

19
Tennessee Dept. of Mental Health v. Allison, 833 S.W .2d 82, 85 (Ten n. Ct. App. 1992 ).

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votes in both the State House of Representatives and the State Senate.20 Second, the dissent neglects
to note that our consideration of the statute and the emerging societal view is but one prong of the
three-prong analysis applicable under article I, § 16.

The Supreme Court of Georgia, faced with an issue similar to the one under consideration
in this case, has also relied on their statute to hold that contemporary standards of decency no longer
supported execution of the mentally retarded. See Fleming v. Zant, 386 S.E.2d 339 (Ga. 1989). The
Court stated:

The legislative enactment reflects a decision by the people of Georgia
that the execution of mentally retarded offenders makes no
measurable contribution to acceptable goals of punishment. Thus,
although there may be no “national consensus” against executing the
mentally retarded, this state’s consensus is clear.

The “standard of decency” that is relevant to the interpretation of the
prohibition against cruel and unusual punishment found in the
Georgia Constitution is the standard of the people of Georgia, not the
national standard. Federal constitutional standards represent the
minimum, not the maximum, protection that this state must afford its
citizens. Thus, although the rest of the nation might not agree, under
the Georgia Constitution, the execution of the mentally retarded
constitutes cruel and unusual punishment.

Id. at 342 (footnote and citations omitted).

Accordingly, in conducting the appropriate analysis under article I, § 16 of the Tennessee
Constitution, it is unmistakably clear that the societal consensus in Tennessee, as reflected in the
overwhelming vote and comments of the legislature, directly repudiates the Penry decision’s
constitutional sanction on executing the mentally retarded. We therefore conclude that the execution
of mentally retarded individuals violates evolving standards of decency that mark the progress of a
maturing society both nationally and in the State of Tennessee.

Proportionality

The second prong of the analysis under the Eighth Amendment to the United States
Constitution and article I, § 16 of the Tennessee Constitution is whether the punishment is grossly
disproportionate. The proportionality analysis must focus upon myriad factors regarding the
defendant and the offense. As the United States Supreme Court has expressed, a court must “gauge
whether a punishment is disproportionate by comparing the ‘gravity of the offense,’ understood to

20
As we have noted, 109 elected repre sentatives of the peop le of T enn essee voted in favor of the statute
prohibiting the exec ution of the me ntally retarded, see Ten n. Co de A nn. § 39-13-203 (1991), and 6 vo ted ag ainst it.

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include not only the injury caused, but also the defendant’s moral culpability, with the ‘harshness
of the penalty.’” Penry v. Lynaugh, 492 U.S. at 342, 109 S. Ct. at 2959-60 (Brennan, J., concurring
and dissenting) (quoting in part Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3010, 77 L. Ed.
2d 637 (1983) (emphasis added)); see also Enmund v. Florida, 458 U.S. 782, 825, 102 S. Ct. 3368,
3391, 73 L. Ed. 2d 1140 (1982) (O’Connor, J., dissenting) (noting that the Eighth Amendment
concept of “proportionality requires a nexus between the punishment imposed and the defendant’s
blameworthiness”).

As we have emphasized, all mentally retarded individuals, regardless of their level or class
of retardation, have significantly subaverage general intellectual functioning and significant
limitations in adaptive functioning. The deficiencies include impaired communication and
comprehension skills, poor self-concept and self-perception, impaired attention and memory
capacities, and a lack of knowledge about basic facts. See Capital Punishment for Mentally
Retarded Offenders, 19 Sw. U. L. Rev. at 107-08. More importantly, these and other impairments
necessarily permeate every aspect of a mentally retarded individual’s encounter with the criminal
justice system. As one commentator has said,

[M]ental retardation may have a significant impact on an individual
who finds himself involved with the criminal justice system,
particularly in the context of confessions and interrogations. It is
well-recognized that mental retardation is not a per se bar to voluntary
interrogations and confessions, although it may be a fact to be
weighed in evaluating the voluntariness of a confession. Many
mentally retarded people may be less likely to withstand police
coercion or pressure due to their limited communication skills, their
predisposition to answer questions so as to please the questioner
rather than to answer the question accurately, and their tendency to be
submissive.

Putting the Mentally Retarded Criminal Defendant to Death, 52 Ala. L. Rev. at 917 (emphasis
added); see also Mary D. Bicknell, Constitutional Law: The Eighth Amendment Does Not Prohibit
the Execution of Mentally Retarded Convicts, 43 Okla. L. Rev. 357, 362 (1990) (“[T]he mentally
retarded individual is particularly vulnerable to any police coercion used in obtaining confession.”).

The dissent’s view ignores the impairments in intelligence and adaptive functioning and
inquires only into whether a mentally retarded person understands the nature of his or her actions,
knows right from wrong, or can conform his or her conduct to the requirements of the law. We
reemphasize that the dissent’s narrow view would effectively protect only those mentally retarded
persons who can also establish legal insanity. Again, this constricted view misses the basic issue in
this case. For example:

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 [M]ental retardation, in and of itself, does not render an individual
incompetent to stand trial or incompetent to enter a guilty plea.
However, certain characteristics that are common among people with
mental retardation, such as the tendency to be easily led, a poor
understanding of the consequences of one’s actions, the desire to hide
one’s mental retardation, and the desire to please authority figures,
can affect the quality and ability of a mentally retarded person to
make decisions that are in his best interest. Thus, the ability of the
mentally retarded defendant to assist counsel in preparing a case and
in making critical decisions about the course of a capital murder trial
may be compromised.

Putting the Mentally Retarded Criminal Defendant to Death, 52 Ala. L. Rev. at 918 (emphasis
added).

In short, there are fundamental concerns that necessarily bear on a mentally retarded person’s
mental state, culpability, blameworthiness, and the proportionality of death as a punishment. As
summarized persuasively by one author:

The most significant of all of the characteristics of the mentally
retarded is that they may have impaired impulse control as well as an
incomplete or immature concept of blameworthiness and causation.
The first defect can result in impulsive behavior, the consequence of
which the [mentally retarded individual] may have difficulty or even
be utterly unable to appreciate. The second defect, the failure to
appreciate the concept of blameworthiness, is the most important of
all because it can render a mentally retarded offender unable to
understand that certain repercussions flow from certain of his acts.
This can have an enormous impact on . . . blameworthiness . . . .

Capital Punishment for Mentally Retarded Offenders, 19 Sw. U. L. Rev. at 108 (emphasis added);
see also Putting the Mentally Retarded Criminal Defendant to Death, 52 Ala. L. Rev. at 918.

Finally, despite the observations of the dissent, the issue in this case is not whether the
mentally retarded may possess the culpability and blameworthiness to be convicted and punished of
a crime. They certainly may. The issue is also not whether the mentally retarded may plead guilty,
stand trial, serve as a witness, or any of the other “facts” listed by the dissent. The issue, rather, is
whether the punishment of a mentally retarded offender, who by definition suffers significantly
impaired intelligence and adaptive behavior, may extend beyond life imprisonment without parole
and include the extreme and maximum penalty of death under article I, § 16 of the Tennessee
Constitution. As it has long been recognized, the penalty of death is “‘qualitatively different’” from

-19-
any other sentence and this “‘qualitative difference between death and other penalties calls for a
greater degree of reliance when the death sentence is imposed.’” State v. Terry, 813 S.W.2d 420,
425 (Tenn. 1991) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2291
(1976), and Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964 (1978)).

For all of the foregoing reasons, we find persuasive the view of Justice Brennan who, writing
for the four-Justice dissent in Penry, observed that the “impairment of a mentally retarded offender’s
reasoning abilities, control over impulsive behavior, and moral development . . . limits his or her
culpability so that, whatever other punishment might be appropriate, the ultimate penalty of death
is always and necessarily disproportionate to his or her blameworthiness and hence is
unconstitutional.” Penry v. Lynaugh, 492 U.S. at 346, 109 S. Ct. at 2961 (Brennan J., concurring
and dissenting).21 Accordingly, we hold that the execution of mentally retarded individuals is grossly
disproportionate under the Eighth Amendment to the United States Constitution and article I, § 16
of the Tennessee Constitution.

Penological Objectives

The third and final prong of the analysis is whether the execution of mentally retarded
persons achieves legitimate penological objectives. The dissent asserts that this prong is satisfied
because the execution of mentally retarded persons achieves the objectives of deterrence and
retribution. Deterrence, obviously, is the theory that a punishment will prevent others from
committing similar offenses. Ford v. Wainwright, 477 U.S. at 421, 106 S. Ct. at 2607. Retribution
is the theory that a defendant be punished appropriately for the crime committed; it depends on the
defendant’s awareness of both the punishment and its purpose. See id.

All of the concerns that we have discussed with regard to proportionality apply with equal
force to this portion of the analysis. As the Georgia Supreme Court observed, the legislative
enactment that prohibited the execution of mentally retarded individuals “reflects a decision by the
people . . . that [such executions] make no measurable contribution to acceptable goals of
punishment.” Fleming v. Zant, 386 S.E.2d at 342. The dissent in Penry reached the same
conclusions:

Since mentally retarded offenders as a class lack the culpability that
is a prerequisite to the proportionate imposition of the death penalty,
it follows that execution can never be the “just desserts” of a retarded
offender . . ., and that the punishment does not serve the retributive
goal . . . .

21
W e believe that reliance on the rationale of the Penry dissen t is particu larly ap propriate in light of the
fact that the Tennessee legislature’s enactment of Tenn. Code Ann . § 39-13-203 (1991) was, in effect, a direct
repudiation of the Penry majority decision.

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 Furthermore, killing mentally retarded offenders does not measurably
contribute to the goal of deterrence. It is highly unlikely that the
exclusion of the mentally retarded from the class of those eligible to
be sentenced to death will lessen any deterrent effect the death
penalty may have for nonretarded potential offenders, for they, of
course, will . . . remain at risk of execution. And the very factors that
make it disproportionate and unjust to execute the mentally retarded
also make the death penalty of the most minimal deterrent effect so
far as retarded potential offenders are concerned.

Penry v. Lynaugh, 492 U.S. at 348, 109 S. Ct. at 2962 (Brennan J., concurring and dissenting)
(citations omitted).

These persuasive arguments with respect to deterrence and retribution have been echoed by
several commentators:

[T]he death penalty will not deter other mentally retarded individuals
from committing crimes because they are not able to weigh the cost
of the criminal act, the consequences of the punishment, or the
benefits of alternatives. Therefore, inflicting the death penalty on a
mentally defective person becomes a process in which society seeks
vengeance, not retribution or deterrence. Such a result is neither
civilized, nor humane.

Constitutional Law, 43 Okla. L. Rev. at 368; see also Capital Punishment for Mentally Retarded
Offenders, 19 Sw. U. L. Rev. at 139 (arguing that “incapacitation, deterrence and retribution, the
three penological justifications offered in support of capital punishment, do not provide a sound
superstructure for this final form of punishment, especially in cases involving the mentally retarded
. . . .”).

The dissent argues that execution of the mentally retarded achieves valid penological
objectives unless the mentally retarded defendant also establishes the cognitive, moral, or volitional
incapacity to distinguish right from wrong, understand the nature of his or her actions, or conforms
his or her conduct to the requirements of the law. Moreover, to emphasize its point, the dissent
engages in the fact-finding exercise of reviewing this case and concludes that the petitioner did not
lack such cognitive, moral, or volitional incapacities, even though the issue has not been raised,
litigated, briefed or argued by the parties.

The dissent argues that its factual findings stem from the jury’s verdict. The fallacy in the
dissent’s claim is that no jury has ever considered the defendant’s volitional, moral, and cognitive
capacities, the defendant’s ability to understand right from wrong, the defendant’s ability to

-21-
understand the nature of his actions, or the defendant’s ability to conform his conduct to the
requirements of the law. Instead, the dissent has established its own standard of what marginal
constitutional protection is due the potentially mentally retarded offender and then has made
determinations regarding the petitioner’s cognitive, moral, and volitional abilities to satisfy that
standard.22

In any event, we do not hold that the conviction and punishment of a mentally retarded
defendant never achieves valid penological goals. Rather, our conclusion is that any penological
objectives attained through the execution of a mentally retarded defendant are minimal at best and
insufficient for the purpose of our analysis under article I, § 16. The dissent somehow finds an
inherent contradiction in the conclusion that penological objectives may be served by imposing a
lesser punishment than death but not for the extreme and final punishment of death. We can only
comment that no statement better illustrates the dissent’s view of this case and its misapprehension
of the relevant analysis. The very nature of the analysis under the Eighth Amendment or article I,
§ 16 asks whether a particular punishment is cruel and unusual. Moreover, as we have commonly
recognized, a sentence of death is final, irrevocable, and “qualitatively different” than any other form
or level of punishment.

Accordingly, having considered the foregoing arguments and the concerns we have
previously discussed, we hold that the execution of mentally retarded individuals fails to achieve
legitimate penological objectives for punishment as required by the Eighth Amendment to the United
States Constitution and article I, § 16 of the Tennessee Constitution.

Other Considerations

In reaching our conclusion, we wish to separately address the arguments that executing the
mentally retarded is not cruel and unusual punishment because mental retardation may be considered
by the jury as mitigating evidence and because some mentally retarded individuals may rely upon
the defense of insanity. There is little in either alternative that offers reasonable safeguards to the
mentally retarded or addresses the concerns outlined in this opinion.

For instance, the jury’s consideration of mental retardation as a mitigating factor is by itself
insufficient to address the concerns protected under the Eighth Amendment or article I, § 16. In such
circumstances, evidence of mental retardation would only be weighed in conjunction with one or
more aggravating circumstances, such as the heinousness of the crime or a defendant’s prior record.
In our opinion, the weighing process would not sufficiently isolate the consideration given to the
issue of mental retardation and would not provide reasonable assurance that an individualized
decision will be made as to whether the death penalty was appropriate punishment for a particular
mentally retarded offender. See Penry v. Lynaugh, 492 U.S. at 347, 109 S. Ct. at 2962 (Brennan J.,
concurring and dissenting) (“Lack of culpability as a result of mental retardation is simply not

22
In co ntrast, as we will discuss, infra, the remedy applied by the majority will require the trial court
and not this Court to m ake the pertinent factual finding s regarding the petition er’s alleg ed m ental re tardation.

-22-
isolated at the sentencing stage as a factor that determinatively bars a death sentence . . . .”). In sum,
the limitations and impairments associated with mental retardation warrant more consideration than
simply allowing the evidence to be weighed in the mix of aggravating and mitigating circumstances.
Indeed, the Tennessee legislature obviously shared this view in the passage of Tenn. Code Ann. § 39-
13-203, which prohibits imposition of a death sentence upon persons found to be mentally retarded;
otherwise, it simply could have listed evidence of mental retardation as among the mitigating factors
in Tenn. Code Ann. § 39-13-204(j), the first degree murder death penalty statute.

Likewise, the State’s assertion that some mentally retarded persons may rely upon the defense
of insanity offers little protection with regard to capital sentencing. The defense of insanity is a
complete defense to criminal charges only where a defendant meets the substantial burden of proving
that he or she was unable to appreciate the nature or wrongfulness of his or her acts due to a severe
mental illness or defect. See Tenn. Code Ann. § 39-11-501 (1997). The relevant issue in this case,
however, is not whether a mentally retarded individual may be held responsible for a criminal
offense, but whether that individual may be executed as a punishment for the offense. The State, as
well as the dissent, would nonetheless conclude that only a mentally retarded person who establishes
a complete defense to the charged offense may be exempt from the death penalty.

Moreover, placing such a burden on the mentally retarded fails to distinguish mental
retardation from mental illness. Although a mentally retarded person may also have a mental illness,
the two issues are not one and the same. See Putting the Mentally Retarded Criminal Defendant to
Death, 52 Ala. L. Rev. at 915. Mental retardation, by definition, is accompanied by serious
limitations on intelligence and adaptive behavior; mental illness is not. Mental retardation, by
definition, must also manifest by age 18; mental illness may or may not. Id. Finally, mental
retardation does not equate to legal insanity, nor does it necessarily make the defense of legal
insanity any easier to establish. It also bears noting that the complete defense of insanity is asserted
in perhaps as few as one percent of all felony cases and is successful in even fewer. See Jodie
English, The Light Between Twilight and Dusk: Federal Criminal Law and the Volitional Insanity
Defense, 40 Hastings L.J. 1, 9 (1988) (“Contrary to public opinion, . . . the insanity defense is
infrequently raised and even less frequently successful.”). Accordingly, what the State posits as a
safeguard for mentally retarded individuals is in reality no safeguard at all.

Application of Holding

Retroactivity

We next must determine whether our conclusion that the execution of mentally retarded
persons violates the Eighth Amendment to the United States Constitution and article I, § 16 of the
Tennessee Constitution constitutes a new rule warranting retroactive application.

A case “announces a new rule when it breaks new ground or imposes a new obligation on
the States or the Federal government.” Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070,

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103 L. Ed. 2d 334 (1989) (citations omitted). In other words, “a case announces a new rule if the
result was not dictated by precedent existing at the time the defendant’s conviction became final.”
Id.; see also Meadows v. State, 849 S.W.2d 748, 751 (Tenn. 1993).

The United States Supreme Court has said that a new rule of federal constitutional law is to
be applied in cases on collateral review only if it (1) places certain kinds of primary, private
individual conduct beyond the power of the state to proscribe or (2) requires the observance of
procedures implicit in the concept of ordered liberty. Teague v. Lane, 489 U.S. at 307, 109 S. Ct.
at 1073. We have adopted a somewhat different standard in Tennessee: “a new state constitutional
rule is to be retroactively applied to a claim for post-conviction relief if the new rule materially
enhances the integrity and reliability of the fact finding process of the trial.” Meadows v. State, 849
S.W.2d at 755; see also Tenn. Code Ann. § 40-30-222 (1997) (citing the Teague standard for
retroactivity).

In deciding Penry, the United States Supreme Court recognized that a holding that the Eighth
Amendment prohibited the execution of mentally retarded persons would be a new rule because it
would “‘brea[k] new ground’ and would impose a new obligation on the States and the Federal
Government.” Penry v. Lynaugh, 492 U.S. at 329, 109 S. Ct. at 2952 (alteration in original)
(citations omitted). The Court also said that such a rule would apply retroactively on collateral
review:

[T]he first exception set forth in Teague should be understood to
cover not only rules forbidding criminal punishment of certain
primary conduct but also rules prohibiting a certain category of
punishment for a class of defendants because of their status or
offense. Thus, if we held . . . that the Eighth Amendment prohibits
the execution of mentally retarded persons . . . regardless of the
procedures followed, such a rule would fall under the first exception
to the general rule of nonretroactivity and would be applicable to
defendants on collateral review.

Id. at 330, 109 S. Ct. at 2953.

We conclude that our holding under article I, § 16 of the Tennessee Constitution likewise
constitutes a new rule. This is an issue of first impression by this Court, and the result is in no way
dictated by our existing precedent. See State v. Laney, 654 S.W.2d 383, 389 (Tenn. 1983) (stating
that a defendant’s “low intelligence” was a mitigating factor but did not render the death penalty
cruel and unusual punishment). Moreover, we agree with the observation in Penry that such a rule
warrants retroactive application to cases on collateral review. In sum, our holding that article I, § 16
of the Tennessee Constitution prohibits execution of those defendants who are mentally retarded
materially enhances the integrity and the reliability of the fact finding process of the trial. See
Meadows v. State, 849 S.W.2d at 755; Tenn. Code Ann. § 40-30-222 (1997).

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 Standards on Remand

Our holding dictates that this case be remanded to the trial court for further proceedings on
the question of whether the petitioner, Heck Van Tran, is mentally retarded. Although the
petitioner’s motion to reopen alleged that he had new scientific evidence that he was actually
innocent under Tenn. Code Ann. § 40-30-217(a)(2), it is our view that the motion is more
appropriately based on the provisions of Tenn. Code Ann. § 40-30-217(a)(1), which provides that
the “claim in the motion is based upon a final ruling of an appellate court establishing a
constitutional right that was not recognized as existing at the trial, if retrospective application of that
right is required.” As such, we need not address the requirements of Tenn. Code Ann. § 40-30-
217(a)(2).

We recognize that the petitioner’s motion to reopen did not, and could not at the time it was
filed, assert a “final appellate ruling” with regard to the unconstitutionality of executing the mentally
retarded. Having now determined that the unique circumstance of this case raises a constitutional
issue that warrants review and that our holding – a new rule of constitutional law – warrants
retroactive application, we believe fundamental fairness dictates that the petitioner have a
meaningful opportunity to raise this issue.

The application of fundamental fairness in the context of post-conviction procedures is hardly
new. In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), for example, a majority of this Court agreed
that attorney misrepresentation may toll the post-conviction statute of limitations despite the
presence of statutory language stating that the statute of limitations shall not be tolled for any
reason. See also Seals v. State, 23 S.W.3d 272 (Tenn. 2000) (mental incompetency may toll statute
of limitations despite anti-tolling language).

Accordingly, under the unusual facts of this case, in which the petitioner has raised an issue
with obvious constitutional implications that a majority of the Court has chosen to address and not
ignore, we believe fundamental fairness dictates that he have an opportunity to litigate his claim
under the new constitutional rule of law we have announced. Moreover, allowing the petitioner to
proceed serves the interest of judicial economy given that he could simply file a new motion to
reopen relying on this decision under Tenn. Code Ann. § 40-30-217(a)(1). Finally, if the dissent’s
procedural arguments were adopted as the majority holding of this Court, the only remaining
alternative in this case would be that one potentially mentally retarded person may be executed
before the issue is reviewed.

On remand, the trial court shall hear the petitioner’s motion to reopen and make a
determination as to the petitioner’s alleged mental retardation. The applicable criteria are those
presently set forth by statute: (1) significantly subaverage general intellectual functioning as
evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below; (2) deficits in
adaptive behavior; and (3) mental retardation manifested during the developmental period, or by
eighteen (18) years of age. See Tenn. Code Ann. § 39-13-203 (1997); see also Fleming v. Zant, 386

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S.E.2d at 342 (adopting and applying the statutory definition of mental retardation as the
constitutional standard).

Conclusion

We conclude that there is compelling evidence that the execution of mentally retarded
individuals violates the evolving standards of decency that mark the progress of a maturing society
both nationally and in the State of Tennessee. We also have determined that the execution of any
mentally retarded individual, who by definition, has significantly subaverage intelligence functioning
and deficits in adaptive behavior, is grossly disproportionate, and serves no valid penological
purpose. We therefore conclude that the execution of a mentally retarded individual violates the
Eighth Amendment to the United States Constitution and article I, § 16 of the Tennessee
Constitution. The judgment of the Court of Criminal Appeals is reversed, and this case is remanded
to the trial court for further proceedings. It appearing that the petitioner is indigent, costs of this
appeal are taxed to the State of Tennessee.

____________________________________
E. RILEY ANDERSON, JUSTICE

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