Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, Georgia, has through the use of juries and a crippling burden of proof, rendered Atkins a nullity. Although the Court has intervened to prohibit some of these practices, it has not granted certiorari to consider others, including Georgia’s. And due to limits the Court has put on federal habeas corpus relief, many persons who fall within the Court’s categorical bar prohibiting persons with intellectual disability from being sentenced to death or executed, have no effective state or federal remedy.



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