Execution and Intellectual Disability: Is Atkins being Ignored?

By: Ashley Garcia

In 2002, the U.S. Supreme Court held in Atkins that executing those with intellectual disabilities violates the “cruel and unusual punishment” clause of the 8th Amendment.[1] Noting that executing those with intellectual disabilities does not further the justifications of retribution and deterrence, the Court also stated that those “defendants in the aggregate face a special risk of wrongful execution.”[2] However, the Court did not define intellectual disability or how it should be measured. The Court only stated that “[n]ot all people who claim to be ‘intellectually disabled’ will be so impaired as to fall within the range of ‘intellectually disabled’ offenders about whom there is a national consensus.”[3] Therefore, each state was left to create its own standards. A consensus for determining intellectual disability is (1) sub-average intellectual functioning, which has been said to be determined by IQ; (2) adaptive deficits; and (3) the disability manifesting itself prior to adulthood.[4]

Although this seems like a win, prisoners who have intellectual disabilities are still being executed. On November 1, 2021, the Supreme Court denied a petition by federal death-row prisoner Wesley Coonce to vacate his death sentence and evaluate his intellectual disability using current diagnostic criteria.[5] The third requirement for determining intellectual disability was at issue, as Mr. Coonce suffered a traumatic brain injury at the age of 20, and at that time, the American Association on Intellectual and Developmental Disabilities (AAIDD) required that the disability manifest before the age of 18.[6] Later, while Mr. Coonce’s petition was pending, the AAIDD changed the age to 22.[7] The government agreed because the change in the AAIDD’s definition “affect[ed] a central factual predicate for the court of appeal’s Eight Amendment analysis.”[8] In her dissent, Justice Sotomayor stated that “[t]o her knowledge, the Court has never before denied a GVR in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt.”[9]

On October 21, 2021, Willie B. Smith III was executed in Alabama.[10] Two jurors had voted to spare his life, but Alabama law nevertheless permits the trial judge to impose the death penalty.[11] This is the only state that imposes this discretion to the judge.[12] In 2019, the U.S. Court of Appeals for the Eleventh Circuit agreed that Mr. Smith was intellectually disabled, but the circuit court upheld his sentence.[13] Justice Sotomayor, again for the dissent, stated that “Alabama does not dispute that Willie Smith has significantly below-average intellectual functioning.”[14]

On October 5, 2021, Earnest Johnson was executed in Missouri despite Bob Holden, a former Missouri Governor, Supreme Court Judge Michael Wolff, Pope Francis, and civil rights leaders have asked to spare his life because he is intellectually disabled.[15] Mr. Johnson’s lawyers even presented evidence that “every mental health professional who has applied accepted clinical standards in assessing intellectual disability has diagnosed Johnson with the disorder.”[16]Although it appears widely regarded that Mr. Johnson has intellectual disabilities, the Missouri Supreme Court rejected the claim and denied his stay of execution.[17]

It is also worth noting the cases that have turned out correctly. For example, in Florida Sonny Boy Oats’s death sentences was vacated and he was resentenced to life in prison after both the defense attorney and prosecutors stipulated that Mr. Oats is intellectually disabled after eight of the nine mental health experts who had evaluated Mr. Oats concluded he was intellectually disabled.[18] Additionally, the Tennessee Legislature passed a bill that creates a procedure where death-row prisoners can obtain judicial review of their intellectual disability.[19] However, this is what we should expect post-Atkins, not these three cases of injustice that occurred in just over a month’s time. As said best by former Missouri Governor Bob Holden, “if our state is to be guided by the rule of law, we must temper our understandable anger with reason and compassion for the most vulnerable among us, including Ernest Johnson.”[20]


[1] Atkins v. Virginia, 536 U.S. 304 (2002).

[2] Id. at 321.

[3] Id. at 317.

[4] Hall v. Florida, U.S. 701, 727 (2014). See also Jennifer LaPrade and John L. Worrall, Determining Intellectual Disability in Death Penalty Cases: A State-by-State Analysis, Journal of Criminal Justice and Law, (Dec. 22, 2020), https://jcjl.pubpub.org/pub/v3-i2-laprade-worrall-intellectual-disabilities/release/1.

[5] Supreme Court Declines to Review Death Sentence in Case in Which Federal Prosecutors and Defense Agree Defendant’s Intellectual Disability Makes him Ineligible for the Death Penalty, Death Penalty Information Center, (Nov. 4, 2021), https://deathpenaltyinfo.org/news/supreme-court-declines-to-review-death-sentence-in-case-in-which-federal-prosecutors-and-defense-agree-defendants-intellectual-disability-makes-him-ineligible-for-the-death-penalty.

[6] Coonce v. U.S., 595 U.S. ____, 1 (2021).

[7] Id. at 3.

[8] Id. at 4.

[9] Id. at 9 (Sotomayor, J., dissenting).

[10] Alabama Executes Intellectually Disabled Death-Row Prisoner, Death Penalty Information Center, (Oct. 21, 2021), https://deathpenaltyinfo.org/news/alabama-executes-intellectually-disabled-death-row-prisoner.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Missouri Moves to Execute Intellectually Disabled Death-Row Prisoner, As Former Governor, Court Justice, and Faith and Rights Leaders Seek Mercy, Death Penalty Information Center, (Oct. 01, 2021), https://deathpenaltyinfo.org/news/missouri-moves-to-execute-intellectually-disabled-death-row-prisoner-as-former-governor-court-justice-and-faith-and-rights-leaders-seek-mercy.

[16] Id.

[17] Id.

[18] Sonny Boy Oats Found Ineligible for the Death Penalty After 40 Years on Florida’s Death Row, Death Penalty Information Center, (Apr. 12, 2021), https://deathpenaltyinfo.org/news/sonny-boy-oats-found-ineligible-for-the-death-penalty-after-40-years-on-floridas-death-row.

[19] Tennessee Legislature Passes Bill to Provide Death-Row Prisoners Court Review of Intellectual Disability Claims, Death Penalty Information Center, (Apr. 27, 2021), https://deathpenaltyinfo.org/news/tennessee-legislature-passes-bill-to-provide-death-row-prisoners-court-review-of-intellectual-disability-claims.

[20] Death Penalty Information Center, supra note 15.

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