Weithorn on the Problems of Applying Atkins v. Virginia

Lois Weithorn has published an article identifying some of the conceptual challenges in applying the U.S. Supreme Court's 2002 decision in Atkins v. Virginia, which held that execution of the mentally retarded violates the Cruel and Unusual Punishments clause of the Eighth Amendment. Lois concludes that "for some defendants -- particularly those viewed as 'mildly mentally retarded' -- summary scores on traditional measures of intellectual and adaptive functioning will not constitute the most meaningful and relevant evidence of intellectual disability for the purpose of death-penalty exclusion." She argues that, "given the limitations of existing measurement instruments . . . state policies should err on the side of casting a net that is too wide rather than one that is too narrow in defining 'mental retardation' for the purpose of Atkins compliance." The article is at 59 Hastings L. J. 1203 (2008) (symposium on forensic science).