This document summarizes John H. Blume's presentation on empirical research regarding Atkins v. Virginia and its application in capital cases. Some key findings include: - Approximately 7% of death row prisoners have filed Atkins claims, with around 40% of filed claims being successful. However, success rates vary widely between states. - States often deviate from clinical definitions of intellectual disability when evaluating Atkins claims, such as using strict IQ cutoffs or disregarding adaptive functioning weaknesses. - Race effects are present, with average IQ scores being higher for white claimants than black or Hispanic claimants. - Current research is examining factors like jury vs judge determinations and potential cases of factual innocence.

1. An Empirical Look at Atkins v. Virginia and its Application in Capital CasesJohn H. BlumeAAIDD Annual Meeting Providence, RIJune

2. Empirical Survey of Post-Atkins CasesFloodgates and Frivolous Litigation?Prong by Prong: More Evidence of State Deviations from the Clinical DefinitionsRace EffectsCurrent Research

3. I. Floodgates and Frivolous Litigation?

4. Justice Scalia in Atkins “This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game. One need only read the definitions of mental retardation to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all.”Atkins v. Virginia, 536 U.S. 304, 353 (2002) (Scalia, J., dissenting).

5. “Time will tell . . . .”Prisoners on death row nationwide:approximately 3,300Capital defendants or death row prisoners filing Atkins claims: approximately 7%

6. Atkins Claims vs. Death Row Population

7. High Success RatesWinning Atkins claims:approximately 40% of filed Atkins claims have wonProportion of death row population found to have MR:approximately 3%actual number may be higher

8. WIDE STATE VARIATIONThere is wide state variation among states:North Carolina: 17 of 21 cases have been successfulAlabama: 4 of 28 cases have been successfulBased on our research, the success rate appears to be linked toThe availability of fundingThe state definition of MR

9. II. Prong by Prong: The Impact of Divergent Applications of the Clinical Definitions

10. Do States “Generally Conform”?State deviations from clinical definitions of MR:

11. Prong 1 – Intellectual functioning

12. Strict IQ cutoff (“70 or below”)

13. Failure to account for standard error of measurement or practice effects

14. Disregarding the Flynn effect

15. Prong 2 – Adaptive functioning

16. Focusing on adaptive strengths rather than weaknesses

17. Giving too much weight to prison behavior and crime “sophisticaton”

18. Stereotyping

19. Prong 3 – Onset

20. Demanding standardized test result as proof of onsetLosses by Prong

21. Percent Losses by Prong

22. Prong 1: Winning and Losing IQAre claimants winning with IQ scores over 70?Approximately 15% had an average IQ above 70Fortunate not to be in “cutoff” stateApproximately 60% did not have any IQ scores over 70Would qualify in every jurisdictionAre claimants losing with IQ scores below 70?In 18% of losing cases (all Prong 1 only), claimant’s average IQ score was below 70, but included a score over 70

23. Prong 2: Skill Areas

24. Prong 2: Behavior in Prison

25. WHY CASES LOSEReasons court have offered for finding that the defendant did not have deficits in adaptive functioning.

26. D could “read, write and perform some rudimentary math”

27. D has “adapted to the criminal life”

28. The crime was “too sophisticated” for a mentally retarded person

29. D attempted to “cover up” the crime

30. D lied to the police

31. D gave a detailed confession

32. D married 3 times

33. D maintained construction jobs

34. D had a driver’s license

35. D was never in special education classes

36. D could operate a microwave

37. D read children’s books and the Bible

38. D took notes during trial

39. D’s trial testimony was coherent

40. D communicated with counselMATAMOROS v. THALERThe Court found that Matamoros had significantly subaverage intellectual functioning.

41. But, no deficits in adaptive functioning because:

42. “Matamoros’ juvenile offenses, lying to his mother about where he got stolen cares, manipulative behavior at TYC, commission of the capital murder and behavior after the offense, and his attempt to blame someone else for the capital murder demonstrated rational and appropriate conduct.”LIZCANO v. STATE (TEXAS)Defendant prevailed on prong 1.He lost on prong 2 despite overwhelming evidence of deficits in adaptive functioning because:He was a “hard and reliable worker”He had romantic relationships with two womenHe sent significant amounts of money to his family in Mexico.

43. III. Race Effects

44. Percent of Atkins Claims by Race

45. AVERAGE IQ SCORES OF ATKINS’ CLAIMANTSAfrican American Inmates – 71Caucasian Inmates – 73Hispanic Inmates - 69

46. IV. CURRENT RESEARCHJury v. Judge –There have been 24 jury determinations of whether a capital defendant is a person with mental retardation (that we are aware of) since Atkins was decided.In 1 case the jury found for the defendant.Juror InterviewsFactual Innocence