“When the Death Count Gets Higher”: An Empirical Examination of Whether the Federal Courts of Appeals Have Authentically Enforced Atkins v. Virginia

The title of this post is the title of this new article now available via SSRN authored by Talia Roitberg Harmon, Michael L. Perlin, Maren Geiger, Lea Roitberg and Stacy Bielic. Here is its abstract:

The United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that subjecting persons with intellectual disabilities to the death penalty violates the Eighth Amendment, as those with disabilities in areas of reasoning, judgment, and impulse control “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”  Here the Court added: “Some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.”  The Court has returned to this question on multiple occasions, clarifying that a determination of intellectual disability cannot be limited to a bare numerical “reading” of an IQ score (Hall v. Florida, 572 U.S. 701 (2014), and that state rules based on inaccurate and out-of-date medical standards are similarly unconstitutional (Moore v. Texas I, 572 U.S. 701 (2017); Moore v. Texas II, 586 U.S. 133 (2019)).  Scholars have written about counsel’s ability to understand the meaning of intellectual disability; the importance of cultural competency; the extent to which experts can adequately explain the meaning of intellectual disability in this context; the extent to which judges actually understand the meaning of expert testimony in this context, and perhaps most importantly, the extensive concerns about the “fear of faking” that were focused on by Justice Scalia in his dissent in Atkins.  Nonetheless, there has been little attention paid to the question of how lower courts have construed Atkins and its progeny, and to the extent to which Atkins has been more than a “paper victory.”

Here, we find that any relief under Atkins was only granted in 20 of the 152 cases in which substantive Atkins claims were raised and considered in these circumstances.  We discuss the Atkins case, and the significance of the post-Atkins cases referred to above (on the question of their reinforcement of some of Atkins‘ most important points).  We then look at the “pressure points” of post-Atkins litigation, to determine which have been of significance to the reviewing courts.  Then, we look at the actual decisions in all Federal circuits, and assess which (if any) of these “pressure points” seem to have had an actual impact on judicial decision making.  Next, we apply principles of therapeutic jurisprudence — a legal school of thought that requires the legal system to treat all people with dignity and compassion, and ensure them authentically adequate counsel.  We sought to determine the extent to which courts deciding Atkins cases followed or ignored these principles.  Finally, we offer some conclusions to assist judges in deciding future cases that join this cohort as well as scholars who write about this important topic.