Intellectual Disability

Reversals Under Atkins

In 2002, the United States Supreme Court in Atkins v. Virginia declared the executions of individuals with intellectual disability unconstitutional. Since that time, states have taken divergent approaches to enforcing that constitutional right. However, some states have attempted to evade enforcing Atkins by adopting stringent definitions of intellectual disability that are scientifically unsupported or by imposing procedural requirements or burdens of proof that are impossible to satisfy.

More than 135 death-row prisoners have obtained relief under Atkins and been resentenced to life in prison. But in that same time frame, at least nineteen prisoners who very likely met the prevailing clinical definition of intellectual disability have been executed and numerous others face imminent execution.

A Death Penalty Information Center analysis of data compiled by researchers and capital defense organizations on the outcomes of death-penalty intellectual disability cases confirms what researchers have long suspected, that vulnerable or disfavored classes of intellectually disabled defendants — particularly defendants of color and foreign nationals — are disproportionately subject to the death penalty. More than 80% of the death-row prisoners whose death sentences have been vacated as a result of intellectual disability (112 of 136, 82.4%) are persons of color. Two-thirds are African American (92, or 67.6%); 17.6% (24) are white; 14.0% (19) are Latinx; and one (0.7%) is Asian. Eleven (8.1%) are foreign nationals, representing nearly 5% of all foreign nationals known to have been sentenced to death in the U.S.


Prisoners Removed From Death Row As a Result of Intellectual Disability

According to data compiled by the Habeas Assistance and Training Project, the Cornell Center on the Death Penalty Worldwide at Cornell Law School, Justice360, and the Death Penalty Information Center as of April 15, 2021, at least 135 former death-row prisoners have obtained relief from their death sentences as a result of court decisions, plea agreements, or stipulations by prosecutors that they had intellectual disability. At least seven prisoners with intellectual disability have been removed from death row and resentenced to life in prison through the commutation process. In addition, at least five of the men exonerated from death row in the U.S.have intellectual disability.

NameStateCounty`RaceOpinion or Order Date
Jeremiah Jackson Alabama Bibb Black 9/28/06
Glenn Holladay Alabama Etowah White 1/30/09
Anthony Lane Alabama Jefferson Black 9/14/18
James Borden Alabama Lawrence White 2/27/04
Kenneth Thomas Alabama Limestone White 5/27/10
Lam Luong Alabama Mobile Asian 10/15/18
Bobby Tarver Alabama Mobile Black 9/24/12
Shawn Grell Arizona Maricopa White 1/9/13
Angel Medrano Arizona Pima Latinx 8/13/12
Jose Ruiz Arizona Pima Latinx Not recorded
Robert Smith Arizona Pima White 2/17/16
Rudi Apelt Arizona Pinal White 5/19/09
Arturo Canez Arizona Pinal Latinx 9/10/07
Ramon Villareal Arizona Santa-Cruz Latinx Not recorded
Rafael Camargo Arkansas Crawford Latinx 8/12/04
Kingrale Collins Arkansas Cross Black Not recorded
Sedrice Simpson Arkansas Dallas Black 9/16/09
Robert Young California Almaeda Black 10/8/10
George Smithey California Calaveras White 8/23/10
Donald Griffin California Fresno White 11/12/15
Robert Lewis California Los Angeles Black 5/24/18
David Fierro California Riverside Latinx 7/21/10
Noel Jackson California Riverside Black 7/29/16
Walter Cook California San Mateo Black 11/3/14
Jose Rodrigues California San Mateo Latinx 2/8/10
Calvin Coleman California Sonoma Black 8/27/08
Ronell Wilson Federal DP New York Eastern Black 3/15/16
Charles Kight Florida Duval White 4/16/04
David Thomas Florida Lee Black 2009
Sonny Boy Oats Florida Marion Black 4/2/21
Kenneth WatsonFloridaMiami-DadeBlack1/8/07
Freddie Hall Florida Sumter Black 9/8/16
Ted Herring Florida Volusia Black 3/31/17
Michael Cohen Georgia Glynn Black 6/20/14
Roger Collins Georgia Houston Black Not recorded
Johnny Lee GatesGeorgiaMuscogeeBlack2003
Gregory Rouster (Gamba Rastafari)IndianaLakeBlack6/13/03
Howard Allen Indiana Marion Black 7/3/12
Tom Pruitt Indiana Morgan White 6/2/15
Anthony Scott Louisiana Assumption Black 6/26/12
Cory Williams Louisiana Caddo Black 2/17/06
Kevan Brumfield Louisiana East Baton Rouge Black 12/16/15
Tyronne Lindsey Louisiana Jefferson Black Not recorded
Richard Hobley Louisiana Natchitoches Black 2004
Thomas Deboue Louisiana Orleans Black 3/10/05
Fredrick Gradley Louisiana Rapides Black 4/1/15
Jimmie Mack Mississippi Bolivar Black 5/9/05
Kevin Scott Mississippi Bolivar Black 6/1/17
Lawrence Branch Mississippi Carroll Black 12/2/11
William Wiley Mississippi Desoto Black 10/27/10
Howard Goodin Mississippi Lamar Black 12/13/12
Howard Neal Mississippi Lawrence White 5/20/04
Mack Wells Mississippi Leake Black 6/9/05
Mack King Mississippi Lowndes Black 3/26/13
William Hughes Mississippi Tate White 3/3/10
Steven Parkus Missouri Cape Girardeau White 4/17/07
Alis Johns Missouri Pulaski White 7/17/03
Andrew Lyons Missouri Scott Black 1/26/10
James Hill Nevada Clark Black 9/18/02
Jimmy Kirksey Nevada Washoe Black 8/21/09
Renwick Gibbs North Carolina Beaufort Black 6/21/04
Elton McLaughlin North Carolina Bladen Black 1/13/06
Billy Anderson North Carolina Craven Black 12/21/10
Russell Holden North Carolina Duplin Black 10/8/04
Larry Williams North Carolina Gaston Black 7/24/06
Anthony Bone North Carolina Guilford Black 1/28/04
Dwight Robinson North Carolina Guilford Black 11/7/03
Clinton Smith North Carolina Halifax Black 11/6/08
Jonathan Leeper North Carolina Mecklenburg Black 5/11/04
Robert McClain North Carolina Mecklenburg Black 12/11/02
Lorenza Norwood North Carolina Nash Black 9/20/03
Johnnie Spruill North Carolina Northampton Black 7/23/04
Kenneth Neal North Carolina Rockingham Black 3/30/15
Anthony Hipps North Carolina Rowan Black 8/1/05
Marvin Williams North Carolina Wayne Black 2/2/12
Melanie Anderson North Carolina Wilkes White 7/24/03
Abner Nicholson North Carolina Wilson Black 9/20/10
Clifton White Ohio Ashland Black 4/9/08
Derrick Evans Ohio Cuyahoga Black Not recorded
Michael Bies Ohio Hamilton White 6/18/10
Darryl Gumm Ohio Hamilton White 12/8/06
Raymond Smith Ohio Lorain Black Not recorded
William Thomas Ohio Lucas Black 1/28/10
Kevin Yarborough Ohio Shelby Black Not recorded
Paul Greer Ohio Summit Black 5/17/08
Robert Lambert Oklahoma Creek White 12/7/05
Darrin Pickens Oklahoma Creek Black 12/7/05
Roderick Smith Oklahoma Oklahoma Black 8/26/19
Richard Hammon Oklahoma Okmulgee Black 2/26/04
Gilberto Martinez Oklahoma Tillman Latinx Not recorded
Jesse Pratt Oregon Klamath White 5/12/09
Michael McNeely Oregon Multnomah White 5/12/09
Connie Williams Pennsylvania Allegheny Black 1/22/13
Jerome Gibson Pennsylvania Bucks Black 6/26/07
Joseph Miller Pennsylvania Dauphin White 7/23/08
Jose Marrero Pennsylvania Erie Latinx 1/8/09
Mark Edwards Pennsylvania Fayette Black 3/25/15
James Vandivner Pennsylvania Fayette White 2/5/18
Peter Karenbauer Pennsylvania Lawrence White 9/23/02
William Faulkner Pennsylvania Montgomery Black 7/2/02
Nathan Scott Pennsylvania Montgomery Black 6/30/03
Edward Bracey Pennsylvania Philadelphia Black 6/16/15
Jose DeJesus Pennsylvania Philadelphia Latinx 1/8/18
Harrison Graham Pennsylvania Philadelphia Black 12/18/03
Simon Pirela Pennsylvania Philadelphia Latinx 8/20/07
Raymond Whitney Pennsylvania Philadelphia Black 1/16/08
Karl Chambers Pennsylvania York White 6/23/05
William Bell South Carolina Anderson Black 11/16/16
Ellis Franklin South Carolina Ellis Black 1/26/11
Tommy Davis South Carolina Greenwood Black Not recorded
Edward Elmore South Carolina Greenwood Black 2/1/10
Ricky George South Carolina Horry Black 1/9/07
Kenneth Simmons South Carolina Spartanburg Black Not recorded
Michael Coleman Tennessee Shelby Black Not recorded
Willie Modden Texas Angelina Black 4/21/04
Pedro Solis SosaTexasAtascosaLatinx5/3/17
Timothy Cockrell Texas Bexar Black 6/10/09
Geronimo Guttierez Texas Bexar Latinx 11/25/20
James Henderson Texas Bowie Black 4/15/20
Eric Moore Texas Collin Black Not recorded
Juan Lizcano Texas Dallas Latinx 9/16/20
Darrell Carr Texas Harris Black 2/28/07
Gilmar Guevara Texas Harris Latinx Not recorded
Virgilio Maldonado Texas Harris Latinx 5/22/13
Bobby Moore Texas Harris Black 2/19/19
Daniel Plata Texas Harris Latinx 1/16/08
Demetrius Simms Texas Harris Black 2/28/07
Roosevelt Smith Texas Harris Black 11/7/12
Exzavier Stevenson Texas Harris Black 3/21/07
Jose Martinez Texas Hidalgo Latinx 6/15/16
Walter Bell Texas Jefferson Black 11/10/04
Charles BrownlowTexasKaufmanBlack1/22/21
David DeBlanc Texas Liberty Black 3/16/05
Alberto Valdez Texas Nueces Latinx 11/10/04
Alstyne Van Texas Potter Black 11/14/07
Clifton WilliamsTexasSmithBlack11/9/20

Exonerations of Death-Row Prisoners With Intellectual Disability

At least six men with intellectual disability who were wrongly convicted and sentenced to death have been exonerated in the United States since the 1970s. They include:

  • Earl Washington in Virginia;
  • Henry McCollum and Leon Brown in North Carolina;
  • Anthony Porter in Illinois;
  • Vicente Benevides in California; and
  • Rickey Newman in Arkansas.

Their demographics are similar to the individuals with intellectual disability who have obtained relief under Atkins: Washington, McCollum, Brown, and Porter are Black; Benevides is Latinx; and Newman is white. 83% are people of color — 67% African American, 17% Latinx — and 17% are white.

Washington, McCollum, and Brown all lost the legal challenges to their convictions and death sentences. Washington’s life was spared as a result of a grant of clemency. DNA later proved him innocent. McCollum and Brown were exonerated only with the intervention of the North Carolina Innocence Commission after they had exhausted their legal appeals. Porter came within two days of execution in 1998 and was spared only by a stay of execution to evaluate his mental competency. The normal legal process failed to detect his innocence: he was exonerated as a result of the efforts of an investigator and journalism students from Northwestern University.


Grants of Executive Clemency to Prisoners With Intellectual Disability

DPIC has identified at least seven prisoners with intellectual disability whose death sentences were commuted by grants of executive clemency.

    • Virginia Gov. Douglas Wilder commuted Earl Washington’s death-sentence in 1994. In October 2000, DNA tests confirmed Washington’s innocence, and he was granted an absolute pardon by Gov. Jim Gilmore.
    • Missouri Gov. Mel Carnahan commuted the death sentence of Bobbie Shaw in 1993, saying there was “little doubt” that Shaw was intellectually disabled.
    • The Nevada Pardons Board voted unanimously in 2002 to commute Thomas Nevius’ death sentence because of his intellectual disability.
    • Louisiana Gov. Mike Foster commuted Herbert Welcome’s death sentence in 2003 after the Pardon and Parole Board recommended clemency based on Atkins.
    • Texas Gov. Rick Perry commuted the death sentence of Doil Lane on March 9, 2007 after state prosecutors did not contest that Lane had intellectual disability.
    • Virginia Gov. Timothy Kaine commuted Percy Walton’s death sentence to life in prison without parole in 2008, citing serious mental illness that rendered him incompetent to be executed. Kaine said he also considered other factors such as Walton’s age at the time of the crime and evidence of “mental retardation.”
    • President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz on January 17, 2017. Ortiz, an intellectually disabled Colombian national, was not in the room when the victim was killed and his more culpable co-defendant received a life sentence. Ortiz’s lawyers never investigated his intellectual disability and law enforcement officials failed to provide him access to assistance from the Colombian consulate, as required under the Vienna Convention on Consular Relations.

    Ways in Which States Have Evaded Enforcing the Prohibition Against Applying the Death Penalty to Prisoners With Intellectual Disability

    Rather than enforcing the constitutional prohibition against executing individuals with intellectual disability, some states have adopted definitions of intellectual disability or procedural requirements that have made it impossible for some prisoners with intellectual disability to satisfy courts that they should not be executed. Some of the ways in which states have evaded enforcing Atkins include:

    • Adopting scientifically inaccurate and unconstitutionally harsh IQ test score requirements that subject some defendants and prisoners to the death penalty despite their intellectual disability.
    • Adopting scientifically baseless and unconstitutionally harsh rules for assessing the presence of adaptive deficits, including improperly substituting a consideration of adaptive skills an intellectually disabled person may have in place of examining his or her impairments in daily functioning, and basing assessments of functioning on lay stereotypes about intellectual disability.
    • Adopting insurmountable burdens of proof by requiring the defendant or prisoner to present evidence proving each element of intellectual disability beyond a reasonable doubt rather than to a reasonable degree of medical certainty.
    • Failing to make appropriate adjustments to IQ and other psychometric test scores to account for the standard error of measurement, practice effects from having been administered IQ or other tests on multiple occasions, or a phenomenon called “the Flynn effect” that shows that scores on the tests rise over time the longer the test has been in use.
    • Improperly making racial, ethnic, or socioeconomic adjustments that inflate IQ scores or discount the presence of adaptive deficits, so that a Black, Latinx, or poor defendant or prisoner would be denied a diagnosis of intellectual disability in circumstances in which a white or well-off person would have been found to have been ineligible for the death penalty.
    • Discounting adaptive deficits or qualifying IQ scores by attributing them to head injury, mental illness, personality disorder, poverty, lack of education, etc., instead of recognizing them as risk factors for intellectual disability or as comorbid conditions that may exist alongside intellectual disability.
    • Treating court decisions that have struck down use of these unconstitutional practices as “new rules of law” and refusing to the apply those decisions to correct prior decisions that assessed a prisoner’s intellectual disability claim using an unconstitutional standard.

    On December 11, 2020, the federal government executed Alfred Bourgeois, whose intellectual disability claim had been denied based upon a unconstitutionally restrictive definition of the disorder. The federal appeals courts refused to hear his claim, even though the federal district court found that he had presented significant evidence of intellectual disability when the correct diagnostic criteria were applied. Corey Johnson—who medical experts say was intellectually disabled—was executed by the federal government on January 14, 2021 without ever having been provided an evidentiary hearing on his claim. Alabama death-row prisoner Willie B. Smith III faces a February 11, 2021 execution date, despite a determination by a federal appeals court that he meets the definition of intellectual disability. And Pervis Payne, whose scheduled December 3, 2020 execution was reprieved because of coronavirus concerns on November 6, 2020, is one of 14 Tennessee death-row prisoners with active death sentences who cannot obtain judicial review of their intellectual disability claims because of defects in the state post-conviction review system.

    Other prisoners, such as Floyd Maestas in Utah and Thomas McCullum in Pennsylvania, who presented significant evidence supporting their claims of intellectual disability died on their states’ death rows before the courts ruled on their claims.


    Executing Prisoners With Intellectual Disability

    DPIC has not conducted a thorough assessment of how many individuals with intellectual disability have been executed. However, we are aware of more than 25 instances since Atkins in which states or the federal government have executed prisoners who very likely were intellectually disabled.

    Executed But Likely Intellectually Disabled

    Name

    State/
    Federal

    County/
    District

    Race

    Race of Victim

    Date

    Holly Wood

    AL

    Pike

    B

    BF

    9/9/2010

    Kenneth WilliamsARLincolnBWM4/27/17

    Gary Bowles

    FL

    Duval

    W

    WM

    8/22/2019

    Kennneth FultsGASpaldingBWF4/12/2016

    Warren Hill

    GA

    Lee

    B

    WM

    1/27/2015

    Rodney BergetSDMinnehahaWWM10/29/18

    Carl Henry Blue

    TX

    Brazos

    B

    BF

    2/21/13

    Elroy Chester

    TX

    Jefferson

    B

    WM

    6/12/2013

    Jaime Elizalde

    TX

    Harris

    L

    LM (2)

    1/31/2006

    Michael Wayne Hall

    TX

    Tarrant

    W

    WF

    2/15/11

    Yokamon Hearn

    TX

    Dallas

    B

    WM

    7/18/2012

    Bobby Lee Hines

    TX

    Dallas

    W

    WF

    10/24/2012

    Robert Charles Ladd

    TX

    Smith

    B

    WF

    1/29/2015

    Milton Mathis

    TX

    Fort Bend

    B

    WM, BM

    6/21/2011

    Robert James Neville

    TX

    Tarrant

    W

    NAM

    2/8/2006

    Robert Madrid Salazar

    TX

    Lubbock

    L

    LF

    3/22/2006

    Danielle Simpson

    TX

    Anderson

    B

    WF

    11/18/2009

    Pablo Lucio Vasquez

    TX

    Hidalgo

    L

    LM

    4/6/2016

    Coy WesbrookTXHarrisWWF, LM3/9/2016

    Marvin Wilson

    TX

    Jefferson

    B

    BM

    8/7/2012

    Bobby Wayne Woods

    TX

    Llano

    W

    WF

    12/3/2009

    Alfredo PrietoVAFairfaxLWF, WM10/1/2015

    Kevin Green

    VA

    Brunswick

    B

    WF

    5/27/2008

    Darick Walker

    VA

    Henrico

    B

    BM (2)

    5/20/2010

    Alfred BourgeoisFederalTexas, Southern DistrictBBF12/11/2020
    Corey JohnsonFederalVirginia, Eastern DistrictBBM (6)

    BF

    1/14/2021

    Missouri also came within hours of executing Ernest Johnson on November 3, 2015, despite strong lifelong evidence of intellectual disability. However, on the day of his scheduled execution the U.S. Supreme Court granted Johnson a stay to permit him to challenge the constitutionality of Missouri’s execution protocol on the grounds that a tumor, lesions, and scarring in his brain create a substantial risk that he will suffer seizures and extreme pain if executed using the drug pentobarbital.

    The danger of unconstitutionally executing individuals with intellectual disability remains acute in 2021. Corey Johnson was executed by the federal government on January 14, 2021, without judicial review of his strong evidence of intellectual disability. State courts applied medically inappropriate and unconstitutionally restrictive definitions of intellectual disability to deny claims by Blain Milam, Edward Busby, and Willie B. Smith III that they were ineligible for the death penalty. Milam and Busby came within a week of execution before the Texas Court of Criminal Appeals stayed their executions (January 15 and February 3, 2021, respectively), and Alabama called off Willie Smith’s execution on other grounds more than four hours after it was scheduled to take place on February 11, 2021.