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Criminal: Seventh Circuit Concludes Death Row Inmate Entitled To Relitigate Mental Retardation Issue
Posted in Litigation

On Wednesday, the United States Court of Appeals for the Seventh Circuit held in Allen v. Buss that, after 15 years of legal battles, a man sentenced to death in 1988 was entitled to a court hearing to determine whether he was mentally retarded and could not be executed.

Following Allen’s sentencing in 1988, laws changed banning the execution of mentally retarded persons, but Allen’s requests for relief under those laws were repeatedly denied.  In 1994, Indiana enacted a statute that banned the execution of mentally retarded persons.  When Allen pursued relief under that statute, Indiana courts determined that the statute did not apply retroactively and considered possible mental retardation only as a mitigating factor to be weighed against the aggravating circumstances of the crime.  No hearing was held as to the mitigating factor consideration.  See generally Allen v. State, 686 N.E.2d 760 (Ind. 1997). 

In 2002, Allen petitioned for habeas relief.  While his petition was pending, the United States Supreme Court issued Atkins v. Virginia, 536 U.S. 304 (2002), holding that, under the Eighth Amendment, “death is not a suitable punishment for a mentally retarded criminal.”  Allen then sought post-conviction relief from the Indiana Supreme Court.  Allen’s request was denied because, the Court held, Allen had succeeded in having mental retardation considered as a mitigating factor and he was not permitted to relitigate the issue.  See generally Allen v. State, No. 49S00-0303-SD-122, 2003 Ind. LEXIS 581 (Ind. July 15, 2003) (unpublished opinion).  In 2006, Allen’s habeas petition was denied without hearing.

The Seventh Circuit found that Indiana courts had unreasonably applied federal law to the facts of Allen’s case.  It held that the Indiana Supreme Court’s refusal to allow Allen to relitigate the issue of mental retardation was contrary to Atkins.  Under Atkins, the court held, “there is a difference between using mental retardation as a mitigating factor and categorically excluding mentally retarded persons from the death penalty altogether.”  The Seventh Circuit reasoned that “[o]ne is a balancing test and the other is a ban.”  Thus, under Atkins, Allen was entitled “to a hearing regarding whether he is mentally retarded and therefore categorically excluded from the death penalty.”



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