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 Cases John H. Blume AAIDD Annual Meeting Providence, RI June

2. 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

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 3,300 Capital defendants or death row prisoners filing Atkins claims: approximately 7%

6. Atkins Claims vs. Death Row Population

7. 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

8. 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

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

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

21. Percent Losses by Prong

23. Prong 2: Skill Areas

24. Prong 2: Behavior in Prison

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

41. But, no deficits in adaptive functioning because:

43. III. Race Effects

44. Percent of Atkins Claims by Race

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

46. 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