Atkins v. Virginia at Twenty: Still Adaptive Deficits, Still in the Developmental Period

Washington and Lee Journal of Civil Rights and Social Justice Volume 29 Issue 1 Article 4 Fall 2022 Atkins v. Virginia at Twenty: Still Adaptive Deficits, Still in the Developmental Period Sheri Lynn Johnson Cornell Law School, John H. Blume Cornell Law School, Brendan Van Winkle Justice 360 Follow this and additional works at: https://scholarlycommons.law.wlu.edu/crsj Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Criminal Procedure Commons, Disability Law Commons, Human Rights Law Commons, Law Enforcement and Corrections Commons, and the Supreme Court of the United States Commons Recommended Citation Sheri Lynn Johnson, John H. Blume, and Brendan Van Winkle, Atkins v. Virginia at Twenty: Still Adaptive Deficits, Still in the Developmental Period, 29 Wash. & Lee J. Civ. Rts. & Soc. Just. 55 (2022). Available at: https://scholarlycommons.law.wlu.edu/crsj/vol29/iss1/4 This Article is brought to you for free and open access by the Washington and Lee Journal of Civil Rights and Social Justice at Washington and Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Journal of Civil Rights and Social Justice by an authorized editor of Washington and Lee University School of Law Scholarly Commons. For more information, please contact . Atkins v. Virginia at Twenty: Still Adaptive Deficits, Still in the Developmental Period Sheri Lynn Johnson, John H. Blume & Brendan Van Winkle * Abstract Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, Georgia, has through the use of juries and a crippling burden of proof, rendered Atkins a nullity. Although the Court has intervened to prohibit some of these practices, it has not granted certiorari to consider others, including Georgia’s. And due to limits the Court has put on federal habeas corpus relief, many persons who fall within the Court’s categorical bar prohibiting persons with intellectual disability from being sentenced to death or executed, have no effective state or federal remedy. * Sheri Lynn Johnson is the James and Mark Flanagan Professor of Law and Co-director, Cornell Death Penalty Project, Cornell Law School. John H. Blume is the Samuel F. Leibowitz Professor of Trial Techniques and Director, Cornell Death Penalty Project, Cornell Law School. Brendan Van Winkle is the Craig N. Yankwitt Capital Punishment Fellow, Justice 360. 55 56 29 WASH. & LEE J. CIV. RTS. & SOC. JUST. 55 (2022) Table of Contents I. Introduction ................................................................................ 56 II. Atkins v. Virginia: The Creation of the Categorical Ban........ 60 III. State Procedural Obstacles to Realizing Atkins’ Protection . 65 A. Jury Decisionmaking ............................................................. 67 B. The Standard of Proof ............................................................ 79 1. Georgia’s Standard of Proof ................................................ 79 2. Constitutional Constraints ................................................. 83 3. Specific Barriers to Finding Intellectual Disability Beyond a Reasonable Doubt................................................................. 85 4. BARD, Atkins, and the Supreme Court ............................. 93 C. Rejecting the Ford Analogy ................................................... 95 IV. Substantive Deviations from the Diagnostic Criteria for Intellectual Disability .................................................................... 96 A. IQ Cut-Offs ............................................................................. 96 B. Distorted Definitions of Adaptive Functioning Deficits .... 100 C. Inadequate Federal Habeas Corpus Review ...................... 105 1. Giving Undue Deference ................................................... 106 2. “Rubber Stamping” State Drafted Orders ....................... 108 3. Ignoring State Court Deviations From Clinical Consensus ................................................................................................ 112 V. Conclusion ............................................................................... 117 I. Introduction In 2002, in Atkins v. Virginia, 1 the United States Supreme Court held that persons with intellectual disability could not be executed. 2 The Court determined that imposing the ultimate 1. 536 U.S. 304, 321 (2002) (concluding that the execution of intellectually disabled individuals convicted of capital offenses is unconstitutionally cruel and unusual punishment). 2. See id. at 310 (describing the rationale the court used to support the holding). At the time of the Atkins’ decision, intellectual disability was referred to ATKINS V. VIRGINIA AT TWENTY 57 punishment on individuals with intellectual disability was disproportionate and thus was cruel and unusual punishment barred by the Eighth Amendment. 3 But it continues to happen. This article examines how recalcitrant state courts and legislatures, relying primarily upon a single, ill-advised sentence in the Atkins decision, have created procedural and substantive obstacles that often effectively nullify the constitutional ban and how the federal courts, often equally recalcitrant, have, for the most part, refused to intervene. State pushback against Atkins has come in different forms. Some states placed the decision in the hands of juries, which essentially never find a capital defendant to be a person with intellectual disability. 4 One state, Georgia, not only gives the decision to the jury, but it also requires the defendant to prove beyond a reasonable doubt that he (and virtually always, he not she) is a person with intellectual disability. 5 Not surprisingly, no Georgia defendant has been able to do so. 6 Other states have limited Atkins’s effect by modifying the definition of intellectual disability to make it more difficult to prove. Florida, for example, established a hard IQ score cutoff of seventy, and if a defendant did not have an IQ score of seventy or below, the intellectual as mental retardation. We will use the current term, intellectual disability, unless we are quoting a source that refers to the disability as “mental retardation.” 3. See id. at 321 (“[T]he Constitution places a substantive restriction on the State’s power to take the life of [an individual with intellect (...truncated)