States That Have Changed Their Statutes to Comply With the Supreme Court's Decision in Atkins v. Virginia

Posted: July 30, 2003

CALIFORNIA	STATUTE	QUALIFIED EXAMINER	DETERMINED?
	Penal Code 1376	None stated. Burden of proof is on the defense.	In a Pre-Trial hearing by a Judge or Jury.
	DEFINITION OF MENTAL RETARDATION
	Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18.
DELAWARE	STATUTE	QUALIFIED EXAMINER	DETERMINED?
	11-4209	None stated. Burden of proof is on the defense.	Before the Trial by a Judge
	DEFINITION OF MENTAL RETARDATION
	"Seriously mentally retarded" or "serious mental retardation" means that an individual has significantly subaverage intellectual functioning that exists concurrently with substantial deficits in adaptive behavior and both the significantly subaverage intellectual functioning and the deficits in adaptive behavior were manifested before the individual became 18 years of age; "Significantly subaverage intellectual functioning" means an intelligent quotient of 70 or below obtained by assessment with 1 or more of the standardized, individually administered general intelligence tests developed for the purpose of assessing intellectual functioning; and "Adaptive behavior" means the effectiveness or degree to which the individual meets the standards of personal independence expected of the individual's age group, sociocultural background and community setting, as evidenced by significant limitations in not less than 2 of the following adaptive skill areas: communication, self-care, home living, social skills, use of community resources, self-direction, functional academic skills, work, leisure, health or safety.
IDAHO	STATUTE	QUALIFIED EXAMINER	DETERMINED?
	19-2515A	No specific qualifications specified. Refers only to "expert witness" for either side.	Before the Trial by a Judge
	DEFINITION OF MENTAL RETARDATION
	"Mentally retarded" means significantly subaverage general intellectual functioning that is accompanied by significant limitations in adaptive functioning in at least two (2) of the following skill areas: communication, self-care, home living, social or interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety. The onset of significant subaverage general intelligence functioning and significant limitations in adaptive functioning must occur before age eighteen (18) years. (b) "Significantly subaverage general intellectual functioning" means an intelligence quotient of seventy (70) or below.
ILLINOIS	NOTE: On November 20, 2003, the Illinois legislature unanimously voted to override the July 29, 2003 Governor Blagojevich veto, entering the statutes into law.
	STATUTE	QUALIFIED EXAMINER	DETERMINED?
	725 ILCS 5/114-15	If a motion to disqualify a case as a capital case based upon the mental retardation of the defendant is filed, the issue of the defendant's mental retardation shall be determined in a pretrial hearing. The court shall be the fact finder on the issue of the defendant's mental retardation and shall determine the issue by a preponderance of evidence in which the moving party has the burden of proof. The court may appoint an expert in the field of mental retardation. The defendant and the State may offer experts from the field of mental retardation. The court shall determine admissibility of evidence and qualification as an expert.	Before the Trial
	DEFINITION OF MENTAL RETARDATION
	The mental retardation must have manifested itself by the age of 18. An intelligence quotient (IQ) of 75 or below is presumptive evidence of mental retardation. IQ tests and psychometric tests administered to the defendant must be the kind and type recognized by experts in the field of mental retardation. In order for the defendant to be considered mentally retarded, a low IQ must be accompanied by significant deficits in adaptive behavior in at least 2 of the following skill areas: communication, self-care, social or interpersonal skills, home living, self-direction, academics, health and safety, use of community resources, and work.
LOUISIANA	STATUTE	QUALIFIED EXAMINER	DETERMINED?
	2003 LA Acts 698, Code of Criminal Procedure Article 905.5.1	When a defendant makes a claim under this article the state has the right to an independent psychological and psychiatric examination of the defendant. Must be licensed by Louisiana state board of examiners of psychologists.	Before the Trial (if the proseucutor agrees) by the Judge, or during sentencing by the Jury
	DEFINITION OF MENTAL RETARDATION
	A disability characterized by significant limitations in both intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical adaptive skills. Onset must have occurred before age 18.
NEVADA	STATUTE	QUALIFIED EXAMINER	DETERMINED?
	NRS 174	None stated. Only reference to examiners is that they are to be selected by the prosecution.	Before the Trial
	DEFINITION OF MENTAL RETARDATION
	Significant subaverage general intellectual functioning which exists concurrently with deficits in adaptive behavior and manifested during the developmental period.
UTAH	STATUTE	QUALIFIED EXAMINER	DETERMINED?
	77-15a-101	The court shall order the Department of Human Services to appoint at least two mental health experts to examine the defendant and report to the court. The experts: (i) may not be involved in the current treatment of the defendant; and (ii) shall have expertise in mental retardation assessment.	Before the Trial
	DEFINITION OF MENTAL RETARDATION
	Significant subaverage general intellectual functioning that results in and exists concurrently with significant deficiencies in adaptive functioning that exist primarily in the areas of reasoning or impulse control, or in both of these areas; and the subaverage general intellectual functioning and the significant deficiencies in adaptive functioning under Subsection (1) are both manifested prior to age 22.
VIRGINIA	STATUTE	QUALIFIED EXAMINER	DETERMINED?
	§ 19.2-264.3	A psychiatrist, a clinical psychologist or an individual with a doctorate degree in clinical psychology, (b) skilled in the administration, scoring and interpretation of intelligence tests and measures of adaptive behavior and (c) qualified by experience and by specialized training, approved by the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services, to perform forensic evaluations. The defendant shall not be entitled to a mental health expert of the defendant's own choosing or to funds to employ such expert.	By the Jury (or Judge in Non-jury trials) during the Sentencing Phase
	DEFINITION OF MENTAL RETARDATION
	"Mentally retarded" means a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social and practical adaptive skills.

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