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

Abstract

In 2002, in Atkins v. Virginia, the U.S. Supreme Court held that subjecting persons with intellectual disabilities to the death penalty violates the Eighth Amendment. Assessing Atkins’ actual impact on like cases, we collected data on subsequent substantive Atkins claims made in all Federal circuit courts post-Atkins through 2023. This article identifies significant variables that predicted case outcomes in these cases. We found there were very few successful Atkins claims in the Circuit courts (20 out of 152 claims). Bivariate logistic regression analyses suggest that there are different predictors of success in the Fifth Circuit (as opposed to those other relevant circuits): the significant variable in the Fifth was the use of the Flynn effect; significant variables in other circuits were the gender of the victim, refutation of allegations of malingering, and lowest and highest intelligence quotient scores reported. The Atkins decision has thus seem to have had little impact on Circuit courts for those with intellectual disability currently incarcerated on death rows.