Friday, January 8, 2010

The "slippery slope" of Atkins. What disability will be next? Trevino v Texas (2008,2009) FAS defense.

Many legal scholars believe that the US Supreme Court's Atkins MR/ID decision created a considerable "mess" when it handed the details of implementing the Atkins decision to the individual states. As has been documented repeatedly at this blog, the quality of psychological evidence considered, variability in definition and criteria, and the courts handling of the evidence and criteria has varied dramatically.

In addition, the Atkins ruling has the potential to create the proverbial "slippery slope."  Although not dealing with capital punishment per se, there was a recent attempt to have other disabilities considered as mitigating factors in criminal defense trials.  Previously mentioned at this blog was a case of autism.  Thanks to Kevin Foley, I am now aware that fetal alcohol syndrome (FAS) recently entered the arena of federal habeas corpus petitions.

The specific case is Trevino versus Texas(2008, 2009).  Although the defendant's IQ scores were within "low average" range (not in the range associated with mild mental retardation), the argument was made that individuals with FAS possess many of the same behavioral characteristics as those listed as mitigating factors and culpability for individuals with intellectual disabilities in the original Atkins decision. Athough the petition was not successful, it represents a possible "tip of the iceberg" for future petitions for other disabilities.

Many legal scholars believe that the loose ends left by the original Atkins decision, which are now resulting in cases such as Trevino's, will eventually result in SCOTUS needing to revisit Atkins "to clean up the mess."

Cases like Trevino's may become more common. And, many of the disabilities that may be candidates for this type of defense are far more complex and have much more subjective diagnostic criteria than MR/ID. If the courts thought that defining and identifying individuals with intellectual disabilities was hard, the can of worms will be much messier for disabilities such as autism, aspergers syndrome, FAS, to mention just a few.

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