On 20^th Anniversary of Atkins v. Virginia, Supreme Court Denies Petition to Review Procedural Loophole Permitting Execution of Intellectually Disabled Prisoners

On the twen­ti­eth anniver­sary of its land­mark deci­sion in Atkins v. Virginia pro­hibit­ing the use of the death penal­ty against indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty, the U.S. Supreme Court let stand a Florida case that cre­ates a pro­ce­dur­al loop­hole that allows those exe­cu­tions to continue.

In a one-line rul­ing issued June 21, 2022, the Court sum­mar­i­ly denied a peti­tion for writ of cer­tio­rari filed on behalf of Florida death-row pris­on­er Joe Nixon, declin­ing to review the state’s refusal to apply to his case a pri­or Supreme Court rul­ing that had struck down the cri­te­ria the Florida courts had used to deny his intel­lec­tu­al dis­abil­i­ty claim. The deci­sion did not con­sti­tute a rul­ing on the sub­stance of the Florida courts’ action but left in place a state prac­tice that pro­vides no mech­a­nism to redress uncon­sti­tu­tion­al judg­ments that could result in the exe­cu­tion of indi­vid­u­als who are sup­posed to be con­sti­tu­tion­al­ly inel­i­gi­ble for the death penalty.

Nixon was con­vict­ed and sen­tenced to death in 1985 for the August 1984 kid­nap­ping and mur­der of a woman in Tallahassee, Florida. After he had com­plet­ed his state court appeals, the U.S. Supreme Court decid­ed Atkins on June 20, 2002. Nixon’s lawyers sub­se­quent­ly filed a peti­tion seek­ing to vacate his death sen­tence based on intel­lec­tu­al dis­abil­i­ty. The Florida courts denied his peti­tion in 2009, say­ing he had failed to meet the state’s require­ment of pre­sent­ing IQ scores of 70 or below. In 2014 in Hall v. Florida, the Supreme Court declared use of the 70-IQ cut­off uncon­sti­tu­tion­al, call­ing it a ​“rigid rule [that] cre­ates an unac­cept­able risk that per­sons with intel­lec­tu­al dis­abil­i­ty will be executed.”

Nixon again sought review of his intel­lec­tu­al dis­abil­i­ty claim. In 2017, the Florida Supreme Court direct­ed the tri­al court to recon­sid­er that claim in light of Hall. However, after three mem­bers of the state’s high court reached manda­to­ry retire­ment and were replaced by ultra-con­ser­v­a­tive jus­tices, the court declared that it would no longer apply Hall to cas­es that had com­plet­ed their appeals before Hall was decid­ed. That rul­ing left a sub­stan­tial num­ber of intel­lec­tu­al­ly dis­abled pris­on­ers whose claims had been uncon­sti­tu­tion­al­ly reject­ed with­out access to the courts to prove their inel­i­gi­bil­i­ty for the death penalty. 

The Florida Supreme Court ruled that it would not apply Hall in Nixon’s case, prompt­ing his peti­tion to the U.S. Supreme Court.

According to the National Disability Rights Network, an esti­mat­ed ten states in addi­tion to Florida had adopt­ed or applied sim­i­lar uncon­sti­tu­tion­al IQ thresh­olds that denied death-row pris­on­ers relief under Atkins. The Supreme Court’s refusal to hear Nixon’s case allows courts in those states to refuse to apply Hall to old­er cas­es in which intel­lec­tu­al­ly dis­abled pris­on­ers were uncon­sti­tu­tion­al­ly deemed eli­gi­ble to be executed. 

Intellectually Disabled Defendants of Color Are Disproportionally Likely to Be Sentenced to Death and Unconstitutionally Executed

A December 2020 Death Penalty Information Center analy­sis of more than 130 cas­es in which pris­on­ers’ death sen­tenced were over­turned because of the con­sti­tu­tion­al pro­hi­bi­tion against exe­cut­ing per­sons with intel­lec­tu­al dis­abil­i­ty sug­gests that defen­dants of col­or who are intel­lec­tu­al­ly dis­abled are dis­pro­por­tion­ate­ly like­ly to be sen­tenced to death (click to enlarge graph­ic). That review, since updat­ed to include a dozen addi­tion­al cas­es, found that more than 80% of intel­lec­tu­al­ly dis­abled defen­dants sen­tenced to death (118 of 142, 83.1%) are per­sons of col­or. Like Nixon, more than two-thirds are African American (97, or 68.3%). 16.9% (24) are white; 14.1% (20) are Latinx; and one (0.7%) is Asian. The data reflects that the per­cent­age of Black and Latinx defen­dants among intel­lec­tu­al­ly dis­abled death-row pris­on­ers is 1.6 times greater than the respec­tive per­cent­ages at which they are sen­tenced to death. 

DPIC has also found that at least 28 death-row pris­on­ers who very like­ly were intel­lec­tu­al­ly dis­abled have been exe­cut­ed since Atkins v. Virginia declared the prac­tice uncon­sti­tu­tion­al. Here, too, pris­on­ers of col­or have been disproportionately affected. 

While Black defen­dants con­sti­tute 34.2% of those put to death since exe­cu­tions resumed in the United States in 1977, 62% of the like­ly intel­lec­tu­al­ly dis­abled defen­dants exe­cut­ed post-Atkins have been Black — a per­cent­age that is 1.8 times high­er than the over­all per­cent­age of Black death-row pris­on­ers who have been exe­cut­ed. Latinx defen­dants con­sti­tute 8.3% of those exe­cut­ed in the U.S. in the past 50 years but 14.3% of the like­ly intel­lec­tu­al­ly dis­abled pris­on­ers to have been exe­cut­ed post-Atkins — 1.7 times high­er than the over­all per­cent­age of exe­cu­tions involv­ing Latinx prisoners.

The Court’s Repeated Failure to Enforce Constitutional Rights

The Supreme Court’s refusal to inter­vene in Nixon’s case despite its own clear prece­dent estab­lish­ing the uncon­sti­tu­tion­al­i­ty of Florida’s dis­po­si­tion of his intel­lec­tu­al dis­abil­i­ty claim is yet anoth­er exam­ple of the fail­ure of the judi­cial process to enforce con­sti­tu­tion­al guar­an­tees in death penal­ty cas­es. A study by researchers at Cornell Law School, pub­lished in the Fall 2021 issue of the Columbia Human Rights Law Review, found that at least 228 peo­ple exe­cut­ed in the mod­ern era — one in every sev­en exe­cu­tions in the U.S. in the past fifty years — had been put to death despite rais­ing legal claims that the Supreme Court has said would require revers­ing their con­vic­tions or death sentences.

These cas­es includ­ed at least 42 peo­ple with intel­lec­tu­al dis­abil­i­ty who were exe­cut­ed before Atkins was decid­ed. However, in 170 of the cas­es, the pris­on­ers were exe­cut­ed after the Supreme Court had already estab­lished the basis for declar­ing their death sen­tences uncon­sti­tu­tion­al. As the researchers explained, ​“the low­er courts turned a blind eye to their claims and for years the Supreme Court did noth­ing to correct them.”

The researchers iden­ti­fied Florida, along with Texas, as the two worst offend­ers, writ­ing that cap­i­tal lit­i­ga­tion in those states could not pro­ceed under the pre­sump­tion ​“that low­er courts will apply Supreme Court prece­dent in good faith.” In Florida, they found that least 36 death-row pris­on­ers had been exe­cut­ed despite Supreme Court deci­sions clear­ly estab­lish­ing the uncon­sti­tu­tion­al­i­ty of their death sen­tences. That trans­lates to 36.4% of all Florida exe­cu­tions, or 1 in every 2.75 executions.

The Florida Supreme Court’s refusal to enforce Atkins and Hall por­tends even more uncon­sti­tu­tion­al exe­cu­tions in the state and val­i­dates the researchers’ obser­va­tion that ​“when it comes to cap­i­tal pun­ish­ment, his­to­ry teach­es that the low­er courts can­not be trust­ed to enforce the law.” 

The U.S. Supreme Court’s rul­ing in Nixon’s case con­tin­ued a pat­tern in which it has per­mit­ted the exe­cu­tions of pris­on­ers who were nev­er afford­ed judi­cial review of their intel­lec­tu­al dis­abil­i­ty claims or denied review under clin­i­cal­ly appro­pri­ate def­i­n­i­tions of the dis­or­der. On May 23, 2022, the Court ruled that Arizona death-row pris­on­er David Martinez Ramirez could not present the fed­er­al courts with evi­dence of his intel­lec­tu­al dis­abil­i­ty that inef­fec­tive lawyers appoint­ed to rep­re­sent him at tri­al in state post-con­vic­tion pro­ceed­ings had failed to inves­ti­gate and present to the state courts. On January 27, 2022, a 5 – 4 major­i­ty of the Court vot­ed to vacate an injunc­tion issued by an Alabama fed­er­al dis­trict court and unan­i­mous­ly upheld by a pan­el of the U.S. Court of Appeals for the Eleventh Circuit, allow­ing Alabama to exe­cute intel­lec­tu­al­ly dis­abled Matthew Reeves, after the Court had pre­vi­ous­ly sum­mar­i­ly reversed the Eleventh Circuit’s order to vacate Reeves’ death sen­tence because of his tri­al counsel’s inef­fec­tive­ness in fail­ing to obtain and present expert men­tal health evi­dence, includ­ing evi­dence of intel­lec­tu­al dis­abil­i­ty, in the penal­ty phase of Reeves’ capital trial. 

In November 2021, the Court denied a peti­tion by fed­er­al death-row pris­on­er Wesley Coonce to vacate his death sen­tence and return his case to a Missouri fed­er­al court to eval­u­ate his intel­lec­tu­al dis­abil­i­ty claim using cur­rent diag­nos­tic cri­te­ria for the dis­or­der, even though fed­er­al pros­e­cu­tors agreed that Coonce was intel­lec­tu­al­ly dis­abled. And dur­ing the fed­er­al exe­cu­tion spree at the end of the Trump administration’s tenure in office, the Court per­mit­ted the exe­cu­tion of two intel­lec­tu­al­ly dis­abled pris­on­ers, Corey Johnson and Alfred Bourgeois. Johnson had been denied any review of his intel­lec­tu­al dis­abil­i­ty claim. Bourgeois was exe­cut­ed despite evi­dence that led a fed­er­al dis­trict court to con­clude that he was like­ly inel­i­gi­ble for the death penal­ty and enti­tled to a hear­ing in which his claim could be reviewed under con­tem­po­rary med­ical stan­dards. During his ear­li­er appeals, a Texas fed­er­al court had denied Bourgeois’ intel­lec­tu­al dis­abil­i­ty claim, rely­ing on a series of lay stereo­types that had no clin­i­cal valid­i­ty and whose use the Supreme Court lat­er declared uncon­sti­tu­tion­al. After a fed­er­al appeals lift­ed the stay of exe­cu­tion, say­ing Bourgeois has already received review of his claim, the Supreme Court allowed his exe­cu­tion to go forward.