Brooklyn Law Review


While the Supreme Court has yet to hold capital punishment per se unconstitutional, the Court has exempted certain groups of individuals from being eligible for capital punishment, due to concerns about the protection against cruel and unusual punishment provided for in the 8th Amendment. One such group is individuals who are intellectually disabled (the term which replaced the long-used mental retardation). But in exempting such individuals from capital punishment in its decision in Atkins v. Virginia, the Court left it to the states to establish metrics for determining which defendants are in fact intellectually disabled so as to warrant exemption. This resulted in significantly diverging standards between states in adopted evaluative mechanisms. Specifically, many states relied exclusively on IQ testing without taking into account the inherent error present in such testing. These states also refused to consider additional evidence of a defendant’s intellectual ability if a defendant fell above a bright-line score on IQ testing. The Supreme Court reaffirmed the exclusion of intellectually disabled defendants from capital punishment in Hall v. Florida but again declined to establish metrics for states to adopt in evaluating potentially intellectually disabled capital defendants.

This note proposes the adoption of a uniform, multipronged system by which to evaluate capital defendants who allege their intellectual disability exempts them from capital punishment. This system, acting in accordance with psychological standards for evaluating intellectual disability, would look not only at IQ testing, but would also consider evidence of factors within the realms of practical and social intelligence, to conduct a holistic evaluation of a defendant’s intellectual ability. By adopting such a standard, this would ensure that the Court’s intention in both Atkins and Hall—to prevent the cruel and unusual execution of the intellectually disabled—is actually achieved in all jurisdictions.