Wednesday, August 5, 2020

“Man is Opposed to Fair Play”: An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia - Perlin et al. (2020)

Copy of this new article available here.

Below is a copy of the conclusion

VI. Conclusion


The database we have considered here is infinitely depressing. There was only actual relief in 12.4% of the cases that raised Atkins issues, and this grouping of nine cases includes two in which the defendant died before the final relief could be implemented. What it reveals is a Court with little or no interest in the thoughtful opinions of Justice Stevens in Atkins and of Justice Kennedy in Hall. The science is ignored, and the jurisprudence is ignored. Baseless fears of undetected malingering, the mindless use of lay stereotypes of what “looks like” remorse, and the corrupt employment of “ethnic adjustments” to lawlessly raise IQ scores making certain minority defendants improperly eligible for execution all are reflected in the cases decided by the Fifth Circuit. Certainly, the earlier conclusion reached by Professor John Blume and his colleagues (in their empirical study of all Atkins claims) – that “Atkins is not evenhandedly protecting those it was designed to protect”296—rings as true today as it did when written eleven years ago. On the other hand, the cases reveal important potential strategies for defense counsel: (1) It is essential that allegations of malingering be vigorously rebutted through expert testimony; (2) even though the Fifth Circuit has not yet acknowledged its scientific validity, the Flynn effect must be brought to the Court’s attention, (3) the defendant should be given a WAIS test, and the WISC test must be avoided, (4) the use of lay stereotypes of “showing remorse” must be firmly discredited. If these are all done, then there is at least some chance that Atkins and its progeny will be given life in subsequent cases.