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July 11, 2018

"Intellectual Disability, The Death Penalty, and Jurors"

The title of this post is the title of this new paper on SSRN authored by Emily Shaw, Nicholas Scurich and David Faigman. Here is its abstract:

In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empirically about how jurors reason about and make these decisions.

This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were considerably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled.  They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which increased perceptions of both the defendant’s blameworthiness and his mental ability.  These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.

July 11, 2018 at 09:56 AM | Permalink


Atkins had a drug dealing business at age 9. What were the Justices doing at age 9? Atkins survived a neighborhood that was like a combat zone. He did not attend school? Why? Every day he attended school resulted in a loss of $100's wasted, instead of dealing. So his performance on a test that measures school performance was low. Atkins earned more than a teacher does. That test was not designed to measure culpability.

Then Atkins lured a competitor into his car, drove somewhere and killed him. What Justice has the foxiness and physical courage to do that. Atkins was far more intelligent than the pathetic nerds and bookworms on the Supreme Court.

Then, Atkins hung out with appellate lawyers. His vocabulary and language skills markedly improved. His IQ score is not longer in the intellectual disability range. I have proposed going to lawyers' offices as a new approach to the education of the intellectually disabled. Special ed would not have achieved this improvement.

Say, Atkins has intellectual disability in reality. Is he more or less dangerous than a Mafia assassin for hire? All lawyer mitigating factors are in reality, aggravating factors making defendants far more dangerous to everyone around them.

The Justices of the Supreme Court are the only people with intellectual disability in this case. And, they are far more dangerous than the worst mass murderer you can think of.

Posted by: David Behar | Jul 11, 2018 1:04:49 PM

Why do you permit to such an idiot to post over here ?????

Posted by: Claudio Giusti | Jul 11, 2018 2:34:54 PM

Claudio, I share your frustration that David has returned to his tendency to repeatedly ranting on his favorite fevered topics. I think the Kavanaugh pick dialed his anti-lawyer mania up to a new level. Via this response, I am warning David that I will soon start deleting his rants.

Posted by: Doug B. | Jul 11, 2018 3:24:55 PM

Prof. Berman. What fact about Atkins is false?

Posted by: David Behar | Jul 11, 2018 8:36:13 PM

Can DB explain why there are not 5.000 executions every year in America???? At least 5.000.

Posted by: Claudio Giusti | Jul 12, 2018 9:38:12 AM

But there are, of black young males, and in the most gruesome manner. 5000 is the number of murders exceeding the number expected by their fraction of the population. The police does not even bother to investigate a lot of the time. Your opposition to the death penalty is totally racist.

It took the KKK 100 years to lynch 4000 black young men. Today, the feminist lawyer is accomplishing that number each year. The feminist lawyer is 100 more lethal to black young men than the KKK.

For your information in Italy, here is a review of the KKK, a lawyer and judge immunized organization, a lawyer and judge promoted organization. Many members of the US Supreme Court were active members of it.


Posted by: David Behar | Jul 12, 2018 11:13:09 AM

it's incredible how idiot can DB be. Incredible

Posted by: Claudio Giusti | Jul 12, 2018 1:39:36 PM

15.000 murders. 10.000 punished. 5.000 death eligible. less than 50 capital sentences which will be 5 executions.

Posted by: Claudio Giusti | Jul 12, 2018 1:42:20 PM

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