Colburn's case went before the entire Supreme Court, which delayed the execution for 30 days, pending the filing of a petition for the court to hear the case. If the court denies the petition, Colburn's reprieve would be terminated.
Another inmate in Florida was not so lucky. On Dec. 9, 2002, Linroy Bottoson was executed for the robbery, kidnapping and murder of a postal worker. The Florida Supreme Court rejected two separate appeals arguing that Bottoson was mentally retarded and that he was incompetent to stand trial.
The difficulty in Colburn's case is that, unlike Atkins, he was not diagnosed with mental retardation. Although the Supreme Court's decision in Atkins clearly defines executing the mentally retarded as cruel and unusual punishment, it does not impose complete protection from the death penalty on defendants with other mental illnesses.
Carl B. Feinstein, M.D., professor of psychiatry at Stanford University School of Medicine and chair of the APA's committee on children with mental or developmental disorders, rejected Scalia's skepticism. "This is really not a battle about what the definition of mental retardation is, this is a battle about people who want to put other people to death," he told Psychiatric Times.
While acknowledging there will be some borderline cases over which experts may disagree, Feinstein said that the criteria for establishing mental retardation are actually more fact-based than other determinations the legal system makes.
"The criteria for mental retardation are a lot easier to reach agreement over than the criteria for psychiatric disorders," Feinstein said. "The fact is that there has to be a long track record that [points to mental retardation] and there have to be adaptive skills deficits."
While there are imperfections in all forms of assessments, Feinstein said that those related to mental retardation assessments are "hard science" when compared to other "vagaries in the legal system."
"People are all the time making decisions about whether a person did a crime with intent or without intent, or whether it was manslaughter or murder," Feinstein said. "There, the subjectivity involved å is infinitely greater than it is in whether a person is mentally retarded or not."