Atkins at 20: Assessing the Purported Ban on Executing Individuals with Intellectual Disabilities

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.