Policy Issues

Intellectual Disability

It is unconstitutional to impose the death penalty upon individuals with intellectual disability. But poor legal representation and onerous evidentiary requirements still result in death sentences and executions of intellectually disabled defendants.

DPIC Podcast: Discussions With DPIC

Intellectual Disability and the Death Penalty, With Law Professor John Blume


While stopping short of abolishing the death penalty, the U.S. Supreme Court has taken measures to limit its applicability so that it is used primarily in cases where the defendant had the most culpability. People with intellectual disability are not in that group. Occasionally, states, too, determined that the death penalty could be too harsh as applied to some defendants, and many passed laws exempting people with limited intellectual ability from the death penalty.

The mental health community has provided clear criteria for a finding of intellectual disability: significant limitation in intellectual ability and adaptive behavior, manifesting itself prior to the age of 18.

Although the question of a national ban on the use of capital punishment for those with intellectual disability was rejected by the Supreme Court in 1989 because so few states had taken action on their own, the issue re-emerged in 2002 with a new consensus. Thirty states had either ended the use of the death penalty entirely, or at least for those with intellectual disabilities. In Atkins v. Virginia, the Court held that the nation’s standards of decency had evolved to the point where no such executions should occur. It also concluded that there was little if any deterrent or retributive effect from executing such defendants.

At Issue

The Atkins case was a seminal moment in the history of the death penalty, not only because it spared the lives of a vulnerable class of defendants, but it also provided a blueprint for achieving other limitations on the practice, or even for eliminating it altogether. Even after the Court’s decision in 2002, some states continued to use arcane practices in the determination of intellectual disability, so further supervision has been required.

What DPIC Offers

DPIC traces the history of this important ruling, noting the legislative efforts in various states and the pivotal cases that brought this issue to the fore. It provides access to some of the research regarding how many defendants with intellectual disability have been removed from death row and how states apply this ruling at differing times during the process leading up to sentencing.

News & Developments


Aug 31, 2023

Court Ruling Makes Formerly Death-Sentenced Pervis Payne Eligible for Parole in Four Years

On August 30, 2023, the Tennessee Criminal Court of Appeals affirmed a low­er court’s rul­ing that for­mer­ly death-sen­tenced pris­on­er Pervis Payne can serve his two life sen­tences con­cur­rent­ly, mak­ing him eli­gi­ble to apply for parole in less than four years. Shelby County Criminal Court Judge Paula Skahan resen­tenced Mr. Payne in 2022 to two life sen­tences with the pos­si­bil­i­ty of parole after pros­e­cu­tors con­ced­ed that they could not dis­prove Mr. Payne’s claim that he is intel­lec­tu­al­ly dis­abled and there­fore inel­i­gi­ble for the death penal­ty. The state appealed Judge Skahan’s ruling,…

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Aug 15, 2023

Charles Ogletree, Death Penalty Scholar and Criminal Defense Advocate, Dies at 70

Charles Ogletree, Jr., a pas­sion­ate advo­cate for racial and crim­i­nal jus­tice, died on August 4, 2023, after a long ill­ness. As a tenured pro­fes­sor at Harvard University, Professor Ogletree spoke and wrote often about the death penal­ty and men­tored many stu­dents, includ­ing both Barack and Michelle Obama. In a 2014 Washington Post op-ed, he crit­i­cized the use of the death penal­ty in the United States, par­tic­u­lar­ly for peo­ple with severe men­tal ill­ness, brain impair­ments, or who suf­fer from the effects of severe trau­ma. He not­ed that bar­ring the death penalty…

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Mar 08, 2023

Texas Withdraws Execution Date to Allow for Mental Competency Consideration

A Grayson County, Texas court has with­drawn the April 5, 2023 exe­cu­tion date for Andre Thomas (pic­tured), a seri­ous­ly men­tal­ly ill pris­on­er whose legal team request­ed more time to demon­strate that Thomas is incom­pe­tent to be exe­cut­ed. While incar­cer­at­ed, Thomas gouged out his own eyes and claimed divine direc­tion for his crimes. More than 100 reli­gious lead­ers, along with oth­er experts, had asked Gov. Greg Abbott to halt Thomas’ execution.

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Feb 20, 2023

Upcoming Executions Raise Concerns about Mental Illness and the Death Penalty

The cas­es of two defen­dants fac­ing immi­nent exe­cu­tion raise con­cerns about the appro­pri­ate­ness of death sen­tences for those with severe men­tal ill­ness or sharply-lim­it­ing men­tal dis­abil­i­ties. Andre Thomas is sched­uled for exe­cu­tion on April 5, 2023 in Texas, despite suf­fer­ing from men­tal ill­ness so acute that he cut out both of his eyes and ate one, claim­ing that it was nec­es­sary to pre­vent the gov­ern­ment from hear­ing his thoughts. Donald Dillbeck is sched­uled for exe­cu­tion in Florida on February 23, even though he is inflict­ed with fetal alco­hol spec­trum dis­or­der accom­pa­nied by dis­abil­i­ties sim­i­lar to those the…

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Nov 17, 2022

Tennessee Attorney General’s Office Continues to Oppose Local Prosecutors Who Concede that Death-Row Prisoner Is Intellectually Disabled

The Tennessee Attorney General’s Office attempt­ed to pre­serve a tri­al court rul­ing deny­ing Byron Blacks intel­lec­tu­al dis­abil­i­ty claim, argu­ing before the Tennessee Court of Criminal Appeals (TCCA) on November 8. Black’s attor­neys argue that a new law enti­tles him to relief from his death sen­tence because of his intel­lec­tu­al dis­abil­i­ty, and the Davidson County District Attorney’s Office agrees. However, a tri­al judge denied Black’s claim because it had been pre­vi­ous­ly raised when Tennessee was apply­ing uncon­sti­tu­tion­al stan­dards to deter­mine intel­lec­tu­al disability.

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Oct 07, 2022

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.

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