Conceptual Hurdles to the Application of Atkins v. Virgina

In its 2002 decision in Atkins v. Virginia, the United States Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment precludes the execution of "mentally retarded offender[s]." Despite the apparent "brightline" clarity of an absolute ban on the execution of mentally retarded offenders, the determination of which offenders fall within the protected group is deceivingly complex. The meanings of the concepts of "mental retardation," "intelligence," and "adaptive behavior" are-like the standards of decency guiding the Court-continually evolving, and are subjects of ongoing reevaluation and debate. Given what is at stake in Atkins assessments, lawmakers, jurists, practitioners, and others must confront the question of how to comply responsibly with the Court's mandate in Atkins in light of the continual evolution of the knowledge, concepts, and practices relevant to its implementation. This Article identifies some of the conceptual challenges inherent in determining who is and who is not "mentally retarded" for the purpose of applying the U.S. Supreme Court's 2002 decision in Atkins v. Virginia.

It critiques current practices and identifies some initial guiding principles for the evaluation of intellectual disability in the death penalty context.