Law Review Article: Broderick (2022). Executing defendents with intellectual disabilities: Unconstitutional in theory, persistent in practice

Abstract:  

In 2002, in Atkins v. Virginia, the Supreme Court abolished the death penalty for defendants with intellectual disabilities. The Court held that executing individuals with intellectual disabilities is cruel and unusual punishment, violating the Eighth Amendment. The Court afforded the states the power to define intellectual disability for the purpose of death penalty eligibility. Post-Atkins cases reveal that the states have composed superficial and oversimplified definitions of intellectual disability. State definitions lack consistency and include nonclinical standards. As a result, courts continue to sentence defendants with intellectual disabilities to death. This Note argues that states should adopt a uniform definition of intellectual disability for the purpose of death penalty eligibility and proposes a model standard in line with clinical standard

 Article link.

Atkins Law Review Article: Race, Intellectual Disability, and Death: An Empirical Inquiry Into Invidious Influences on Atkins Determinations (Johnson et al., 2020)

Race, Intellectual Disability, and Death: An Empirical Inquiry Into Invidious Influences on Atkins Determinations (2020).  UCLA Law Review.  Sheri Lynn Johnson, John H. Blume, Amelia Courtney Hritz, &Caisa Elizabeth Royer

Link

ABSTRACT

 
In Atkins v. Virginia,the U.S. Supreme Court held that the execution of a person with intellectual
disability violates the Eighth Amendment's Cruel and Unusual Punishment Clause. After more than a decade of Atkins litigation, we perceived there to be a substantial risk that race influences intellectual disability-and consequently, life and death-determinations. Due to the difficulty of demonstrating the influence of race in a particular case, we decided to investigate its potential effects in a controlled experiment. We did so by manipulating race in three different ways and by presenting cases with both strong and ambiguous evidence of intellectual disability. We found statistically significant race effects when we showed the face of the defendant and when the evidence of intellectual disability we provided was ambiguous. The influence of race was more pronounced when we limited our sample to white mock jurors. Even with a relatively weak manipulation, the size of the race effect is substantial. We also discovered that many participants weighed the facts of the criminal case and the consequences of their decision (death penalty eligibility), even though it was not relevant to the determination of whether the claimant was (or was not) a person with intellectual disability. These findings shed light on why claims of intellectual disability almostnever succeed before juries: death-qualified jurors may not make the diagnostic determination based on the evidence, but instead likely upon their own assessment of death-worthiness.

Atkins article: "Man is opposed to fair play": An empirical analysis of how the Fifth Circuit has failed to take seriosly Atkins v Virginia - Perlin et al (2020)

'Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia.  Perlin, Harmon & Wetzel

Revised: 9 Dec 2020

 

Link.

“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.

Race, Intellectual Disability, and Death: An Empirical Inquiry into Invidious Influences on Atkins Determinations Part 1: Latinx Communities, Race, and the Criminal Justice System 66 UCLA Law Review 2019

Race, Intellectual Disability, and Death: An Empirical Inquiry into Invidious Influences on Atkins Determinations Part 1: Latinx Communities, Race, and the Criminal Justice System 66 UCLA Law Review 2019 .  Click here

Law Review Article: Intellectual Disability in Capital Cases: Adjusting State Statutes After Moore v. Texas

Another new Atkins related law review article available here.


ABSTRACT

In Atkins v. Virginia (2002), the U.S. Supreme Court ruled that the execution of intellectually disabled inmates violates the cruel and unusual punishment clause of the Eighth Amendment. Twelve years later in Hall v. Florida (2014), the Court revisited its Atkins decision to provide further clarification on how states should assess intellectual disability. This article examines Moore v. Texas (2017), the latest development in the Court's rulings on capital determinations of intellectual disability. It also reviews state statutes and court cases from the thirty-one death penalty states to determine how they comport with the Court's Moore ruling. These statutes and cases shed light on issues with respect to intellectual disability in capital trials that the Court has yet to address. The article concludes with model language to help states make their capital punishment protocols constitutional, so that the intellectually disabled remain free from execution.

Law Review Article: Evaluating Intellectual Disability: Clinical Assessments in Atkins Cases (Ellis et al., 2018)

This new law review article is, IMHO, the best overview article regarding the history of ID, the legal issues in Atkins cases, and good discussion of the major conceptual and measurement issues found in many Atkins cases. An excellent introduction to ID issues in Atkins cases.

EVALUATING INTELLECTUAL DISABILITY: CLINICAL ASSESSMENTS IN ATKINS CASES

James W. Ellis, Caroline Everington, Ann M. Delpha

ABSTRACT

The intersection of intellectual disability and the death penalty is now clearly established. Both under the U.S. Supreme Court's constitutional decisions and under the terms of many state statutes, individual defendants who have that disability cannot be sentenced to death or executed. It now falls to trial, appellate, and post-conviction courts to determine which individual criminal defendants are entitled to the law's protection. This Article attempts to assist judges in performing that task. After a brief discussion of the Supreme Court's decisions in Atkins v. Virginia, Hall v. Florida, and Moore v. Texas, it analyzes the component parts and terminology of the clinical definition of intellectual disability. It then offers more detailed discussion of a number of the clinical issues that arise frequently in adjudicating these cases. For each of these issues, the Article's text and the accompanying notes attempt to provide judges with a thorough survey of the relevant clinical literature, and an explanation of the terminology used by clinical professionals. Our purpose is to help those judges to become more knowledgeable consumers of the clinical reports and expert testimony presented to them in individual cases, and to help them reach decisions that are consistent with what the clinical literature reveals about the nature of intellectual disability and best professional practices in the diagnostic process.

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Law Review Article: Comment post-Moore: Call for national standard for ID def in capital cases

Article can be found here.



CONCLUSION

The Supreme Court's decision in Moore served as little more than a lackluster attempt to provide states with guidance in creating a standard for determining intellectual disability for the purposes of capital punish-ment. While the Court attempted to narrow the leniency it provided to states with its holdings in both Moore and Hall, it has likely done nothing more than cause confusion as states attempt to create legislation that ad-heres to the Court's mandates. The Court's refusal to provide states with a functional definition of intellectual disability in capital cases might seem merely frustrating at first glance, but it is also potentially unconstitu-tional-arguably violating both the Eighth Amendment and the equal pro-tection clause. What is more, as each state creates its own test for deter-mining intellectual disability, the states increase their risk of violating the Eighth Amendment's prohibition of cruel and unusual punishment. Thus, the Court should provide the states with a definition to avoid these pressing constitutional concerns.

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Law Review Article: Lucas (2017) An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases

This article can be found at this link.


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Law Review Article: Crowell (2016) on Texas Briseno factors

 

 

A good Texas Law Review article on the Texas Briseno adaptive behavior factors. Click here to read. Click on image to enlarge

 

 

 

 

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