Blume 2010 AAIDD Atkins MR/ID Death Penalty Symposium presentation

An Empirical Look at Atkins v. Virginia and its Application in Capital Cases
John H. Blume
AAIDD Annual Meeting
Providence, RI
June

Empirical Survey of Post-Atkins Cases
Floodgates and Frivolous Litigation?
Prong by Prong: More Evidence of State Deviations from the Clinical Definitions
Race Effects
Current Research

I. Floodgates and Frivolous Litigation?

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).

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

Atkins Claims vs. Death Row Population

High Success Rates
Winning Atkins claims:
approximately 40% of filed Atkins claims have won
Proportion of death row population found to have MR:
approximately 3%
actual number may be higher

WIDE STATE VARIATION
There is wide state variation among states:
North Carolina: 17 of 21 cases have been successful
Alabama: 4 of 28 cases have been successful
Based on our research, the success rate appears to be linked to
The availability of funding
The state definition of MR

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

Do States “Generally Conform”?
State deviations from clinical definitions of MR:
Prong 1 – Intellectual functioning
Strict IQ cutoff (“70 or below”)
Failure to account for standard error of measurement or practice effects
Disregarding the Flynn effect
Prong 2 – Adaptive functioning
Focusing on adaptive strengths rather than weaknesses
Giving too much weight to prison behavior and crime “sophisticaton”
Stereotyping
Prong 3 – Onset
Demanding standardized test result as proof of onset

Losses by Prong

Percent Losses by Prong

Prong 1: Winning and Losing IQ
Are claimants winning with IQ scores over 70?
Approximately 15% had an average IQ above 70
Fortunate not to be in “cutoff” state
Approximately 60% did not have any IQ scores over 70
Would qualify in every jurisdiction
Are 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

Prong 2: Skill Areas

Prong 2: Behavior in Prison

WHY CASES LOSE
Reasons court have offered for finding that the defendant did not have deficits in adaptive functioning.
D could “read, write and perform some rudimentary math”
D has “adapted to the criminal life”
The crime was “too sophisticated” for a mentally retarded person
D attempted to “cover up” the crime
D lied to the police
D gave a detailed confession
D married 3 times
D maintained construction jobs
D had a driver’s license
D was never in special education classes
D could operate a microwave
D read children’s books and the Bible
D took notes during trial
D’s trial testimony was coherent
D communicated with counsel

MATAMOROS v. THALER
The Court found that Matamoros had significantly subaverage intellectual functioning.
But, no deficits in adaptive functioning because:
“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 women
He sent significant amounts of money to his family in Mexico.

III. Race Effects

Percent of Atkins Claims by Race

AVERAGE IQ SCORES OF ATKINS’ CLAIMANTS
African American Inmates – 71
Caucasian Inmates – 73
Hispanic Inmates - 69

IV. CURRENT RESEARCH
Jury 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 Interviews
Factual Innocence

Blume 2010 AAIDD Atkins MR/ID Death Penalty Symposium presentation

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