In its landmark decision in Atkins v. Virginia in 2002, the U.S. Supreme Court declared that the use of the death penalty against individuals with intellectual disability constituted cruel and unusual punishment in violation of the Eighth Amendment. Twenty years later, however, “there is not just the risk, but the certainty” that states continue to sentence intellectually disabled defendants to death, three legal scholars argue, and the federal courts are letting them get away with it.

Cornell Law School Professors Sheri Lynn Johnson and John Blume, who co-direct the Cornell Death Penalty Project, and Brendan Van Winkle, the Capital Punishment Fellow at the South Carolina capital defense non-profit, Justice 360 (pictured, left to right), examine the aftermath of the Atkins ruling in a summer 2022 law review article, Atkins v. Virginia at Twenty: Still Adaptive Deficits, Still in the Developmental Period, in the Washington and Lee Journal of Civil Rights & Social Justice. They say that, while “[a] significant number of people with intellectual disability have been removed from death row or spared the death penalty because of Atkins,” the Court’s ostensibly categorical ban has been far less than categorical, “as many other persons that should be ineligible for the death penalty have had their assertions of intellectual disability rejected.”

Some of the non-enforcement of Atkins has been by design, the authors say, as “recalcitrant state courts and legislatures … have created procedural and substantive obstacles that often effectively nullify the constitutional ban” against sentencing intellectually disabled defendants to death and executing them. Johnson, Blume, and Van Winkle point to onerous procedural requirements and diagnostically invalid definitions of intellectual disability that, they argue, make proof of the disorder a practical impossibility.

These efforts to evade enforcement of Atkins are abetted by statutory limitations on the federal courts’ ability to consider a state prisoner’s substantive constitutional claims and judge-made rules created by the Supreme Court that further limit a state-court prisoner’s access to the federal courts and restrict both the evidence the prisoner may present and that the court may consider. These barriers to review, the authors suggest, “both encourage state recalcitrance and have doomed many meritorious claims of intellectual disability.”

Johnson, Blume, and Van Winkle argue that “[t]he restrictions on the habeas remedy created by the Supreme Court, especially in the hands of many members of the federal judiciary who will adjudicate the cases and who are all too willing to overlook a state court’s rejection of a clearly meritorious claim, ensures that a not insignificant number of persons with intellectual disability will be executed.” They warn that “[w]ithout greater judicial or legislative commitment to enforcing the underlying Atkins right, … the uneven enforcement of the prohibition against executing persons with intellectual disability will continue rendering the death penalty, at least for this category of offenders, arbitrary and capricious.”

As of October 1, 2020, Justice 360 and the Death Penalty Information Center had identified at least 142 former death-row prisoners whose death sentences have been vacated as a result of court decisions, plea agreements, or stipulations by prosecutors that they were ineligible for the death penalty because of intellectual disability. Yet in the years since Atkins was decided, at least 29 — and likely many more — state and federal death-row prisoners have been executed despite strong evidence that they should have been protected by Atkins.

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Sheri Lynn Johnson, John H. Blume & Brendan Van Winkle, Atkins v. Virginia at Twenty: Still Adaptive Deficits, Still in the Developmental Period, 28 Wash. & Lee J. Civ. Rts. & Soc. Just. 1 (2022).