Academic journal article The William and Mary Bill of Rights Journal

A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after the Supreme Court's Creation of a Categorical Bar

Academic journal article The William and Mary Bill of Rights Journal

A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after the Supreme Court's Creation of a Categorical Bar

Article excerpt


In 2002, following a consistent trend of state legislative action prohibiting the use of the death penalty for defendants with intellectual disability,1 the United States Supreme Court overruled its thirteen-year-old decision of Penty v. Lynaugh? A majority of Justices in Atkins v. Virginia3 declared a categorical exemption from capital punishment for death row inmates and capital defendants who are-in fact-persons with intellectual disability. In doing so, the Court recognized that defendants with intellectual disability are less culpable because they have diminished capacities to understand and process information, to communicate, to learn from mistakes and experiences, to engage in logical reasoning, to control impulses, and to understand the reactions of others.4 The Court was also moved by the fact that defendants with intellectual disability are at a heightened risk of wrongful execution given higher incidences of false confessions, impairments in communicating with their attorneys about facts and details relevant to the case, difficulty testifying, and demeanors that a jury may erroneously interpret as lack of remorse.* * * * 5

The Court defined the exemption by embracing two virtually identical and clinical definitions then in existence-one provided by the American Association on Mental Retardation (AAMR) (now the American Association on Intellectual and Developmental Disabilities (AAIDD))6 and the other by the American Psychiatric Association (APA) in its Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR).7 The three-part clinical definitions set forth by the AAIDD and DSM-IV-TR define intellectual disability as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning that originated before the age of eighteen.8 State measures for ascertaining intellectual disability, the Court suggested, would be appropriate-or constitutional-so long as they "generally conformed" to these clinical definitions.9 This suggestion led to a tremendous variation in how state courts resolved the intellectual disability matter.10 Just last term, in Hall v. Florida,* 11 the Court stepped in and laid down a much clearer principle as it reaffirmed its commitment to Atkins. In Hall, the Court invalidated a gloss on the definition of intellectual disability adopted by the Florida Supreme Court, which had the possible effect of rendering the categorical exclusion a "nullity" and "risk[ed] executing a person who suffers from intellectual disability."12

In this Article, which is in many respects a "follow-up" to the prior research in this area by two of the authors,13 we will examine capital cases decided by the lower courts since the Court created the categorical ban against the execution of persons with intellectual disability.14 Twelve years after the Supreme Court's Atkins decision, we analyzed a number of issues including filing rates, success rates, the reasons cases that often appear meritorious lose, differences in decisionmakers (i.e., judge versus jury), and recent trends in intellectual disability litigation. As we will discuss in more detail below, there are several positive trends in the lower courts. There are, however, some negative trends-some of which could, if not corrected by the Supreme Court, bring to bear the fear articulated in Hall of effectively nullifying the High Court's mandate.15

I. Overall Filing and Success Rates

Dissenting in Atkins, Justice Scalia maintained that exempting people with intellectual disability from the death penalty would promote frivolous litigation.16 He envisioned a world in which defendants feigning intellectual disability would, without penalty or risk, make spurious intellectual disability claims.17 He stated:

One need only read the definitions of mental retardation ... to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all. …

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