Atkins at 20: Assessing the Alleged Ban on Executing People with Intellectual Disabilities


In its landmark decision in Atkins v. Virginia

in 2002, the United States Supreme Court ruled that the use of the death penalty against people with mental disabilities 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 will continue to sentence mentally disabled defendants to death, three legal scholars argue, and federal courts will let them off the hook.

Cornell Law School Professors Sheri Lynn Johnson and John Blumewho co-directs the Cornell Death Penalty Project, and Brendan Van Winkelthe Capital Punishment Fellow of the South Carolina Capital advocacy nonprofit, Justice 360 ​​(pictured, left to right), examines the aftermath of the Atkins ruling in a law review article from the summer of 2002, Atkins v. Virginia at twenty: still adaptation deficits, still in the developmental periodin the Washington and Lee Journal of Civil Rights and Social Justice. They say that while “[a] significant number of people with intellectual disabilities have been removed from death row or spared the death penalty due to Atkins“, the court’s ostensibly categorical ban was far less than categorical,” as many more people who should not be eligible for the death penalty have had their claims of intellectual disability dismissed.

Certain cases of non-application of Atkins was intentional, the authors say, because “recalcitrant state courts and legislatures … have created procedural and substantive hurdles that often overrule the constitutional prohibition” against sentencing to death and executing mentally handicapped defendants. 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 the application of Atkins are encouraged by statutory limitations on the ability of federal courts to consider a state prisoner’s substantive constitutional claims and precedent rules created by the Supreme Court that further limit a prisoner’s access to a state prison. in federal courts and restrict both the evidence the prisoner can present and the court can 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]The restrictions on the habeas remedy created by the Supreme Court, especially in the hands of many members of the federal judiciary who will decide cases and who are only too willing to ignore a state court’s dismissal of a claim clearly meritorious, guarantee that an insignificant number of people with intellectual disabilities will be executed. They warn that “[w]without a greater judicial or legislative commitment to enforcing the Atkins on the right, … the uneven application of the ban on executing the mentally handicapped will continue to render 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 have identified at least 142 former death row inmates whose death sentences have been overturned following court rulings, plea agreements or stipulations by prosecutors that they were not eligible for the death penalty due to intellectual disability. However, in the years that followed Atkins was decided, at least 29 – and likely many more – state and federal death row inmates were executed despite strong evidence that they should have been protected by Atkins.


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