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 140 death-row pris­on­ers have obtained relief under Atkins and been resen­tenced to life in prison. But in that same time frame, at least 28 pris­on­ers who very like­ly met the pre­vail­ing clin­i­cal def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty have been exe­cut­ed and oth­ers still face 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 (120 of 144, 83.3%) are per­sons of col­or. More than two-thirds are African American (99, or 68.8%); 16.7% (24) are white; 13.9% (20) are Latinx; and one (0.7%) is Asian. Twelve (8.3%) are for­eign nation­als, rep­re­sent­ing 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 144 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 six of the men exon­er­at­ed from death row in the U.S. have intellectual disability.

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 was exe­cut­ed by Alabama on February 11, 2021 despite a deter­mi­na­tion by a fed­er­al appeals court that he met the def­i­n­i­tion of intellectual disability.

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

The dan­ger of uncon­sti­tu­tion­al­ly exe­cut­ing indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty remains acute. 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, Willie B. Smith III, and Ernest Johnson that they were inel­i­gi­ble for the death penal­ty. Missouri exe­cut­ed Johnson on October 5, 2021. 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). Although a fed­er­al appeals court acknowl­edged that Willie Smith met the clin­i­cal cri­te­ria for intel­lec­tu­al dis­abil­i­ty, it refused to apply two U.S. Supreme Court deci­sions that demon­strat­ed the uncon­sti­tu­tion­al­i­ty of Alabama’s rejec­tion of Smith’s intel­lec­tu­al dis­abil­i­ty claim. Alabama exe­cut­ed Smith on October 21, 2021.
 

In a rul­ing ren­dered along par­ti­san lines with­out ben­e­fit of oral argu­ment, the United States Supreme Court on July 2, 2021 over­turned a fed­er­al appeals court deci­sion that had vacat­ed the death sen­tence imposed on Alabama death-row pris­on­er Matthew Reeves, whose tri­al lawyers had failed to obtain expert assis­tance to present evi­dence of his intel­lec­tu­al dis­abil­i­ty. Reeves was exe­cut­ed January 27, 2022.

Pervis Payne was one of 14 Tennessee death-row pris­on­ers with active death sen­tences who could not obtain judi­cial review of their intel­lec­tu­al dis­abil­i­ty claims because of defects in the state post-con­vic­tion review sys­tem. He was sched­uled to be exe­cut­ed on December 3, 2020 but received a tem­po­rary reprieve because of coro­n­avirus con­cerns on November 6, 2020. The Tennessee leg­is­la­ture sub­se­quent­ly amend­ed the state post-con­vic­tion process to make review avail­able and the Shelby County District Attorney’s office, which had attempt­ed to exe­cute him for more than two decades after Atkins was decid­ed, con­ced­ed in November 2021 that he was inel­i­gi­ble for the death penalty.