Amy Dillard (University of Baltimore - School of Law) has posted "And Death Shall Have No Dominion: How to Achieve the Categorical Exemption of Mentally Retarded Defendants from Execution" (University of Richmond Law Review, Vol. 45, No. 3, March 2011) on SSRN. Click here to view.
This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how the ancient in favorem vitae doctrine could ensure fairness and protect defendants who may be at special risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty.”
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