NJC Capital Cases Resources
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Resources & Publications:
Appointment of Counsel
Jury Selection
Penalty Phase
International Treatises & Issues
Mental Health Issues

Resources & Publications

Following are resources and publications on various areas of capital cases organized by topic.


Thomas P. Bonczar and Tracy L. Snell, Capital Punishment, 2005
Bureau Just. Assistance (Nov. 2005) NCJ #211349. http://www.ojp.usdoj.gov/bjs/pub/pdf/cp05.pdf
Preliminary data on executions by States during 2005 are included, and the report summarizes the movement of prisoners into and out of death sentence status during 2004. Numerical tables present data on offenders' sex, race, Hispanic origin, education, marital status, age at time of arrest for capital offense, legal status at time of capital offense, methods of execution, trends, and time between imposition of death sentence and execution. Highlights include the following: at yearend 2004, 36 States and the Federal prison system held 3,315 prisoners under sentence of death, 63 fewer than at yearend 2003; of those under sentence of death, 56 percent were White, 42 percent were Black, and 2 percent were of other races; 52 women were under sentence of death in 2004, up from 43 in 1994.

This report is one in a series. More recent editions may be available. To view a list of all in the series go to http://www.ojp.usdoj.gov/bjs/pubalp2.htm#c

Joan M. Cheever, Back from the Dead: One Woman’s Search for the Men who Walked off America's Death Row (John Wiley & Sons, Inc. 2006) http://www.backfromthedeadcheever.com/
Back From The Dead is the story of 589 former death row inmates who, through a lottery of fate, were given a second chance at life in 1972 when the death penalty was abolished; it returned to the United States four years later.

David Crump and George Jacobs, A Capital Case in America: How Today’s Justice System Handles Death Penalty Cases, from Crime Scene to Ultimate Execution of Sentence (Carolina Academic Press 2000).

Barry Latzer, Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment (2d. ed. Butterworth-Heinemann 2002). http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/latzer-barry.htm

Austin Sarat, Capital Punishment in Law Politics, and Culture (Oxford University Press 1999).

Victor L. Streib, The Fairer Death: Executing Women in Ohio (Ohio University Press 2006).  http://www.ohioswallow.com/book/The+Fairer+Death
Women on death row are such a rarity that, once condemned, they may be ignored and forgotten. Ohio, a typical, middle-of-the-road death penalty state, provides a telling example of this phenomenon. The Fairer Death: Executing Women in Ohio explores Ohio’s experience with the death penalty for women and reflects on what this experience reveals about the death penalty for women throughout the nation.

Scott Howe, Furman's Mythical Mandate 40 U. MICH. J.L. REFORM 435 (2007).
This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that the Court has struggled to fulfill. However, this Article shows that consistency is implausible as an Eighth Amendment aspiration and that the Court has never seriously pursued consistency after Furman. The Court has focused almost entirely on promoting expansive individualized consideration of capital offenders, a goal at odds with consistency. The problem is that the Court's continuing rhetorical commitment to Furman's mythical mandate has cast doubt on the value and legitimacy of individualization and has diverted attention from efforts to clarify why individualization serves Eighth Amendment ends. In defense of the doctrine, the Article provides an Eighth Amendment theory for individualization - one founded on avoiding retributive excess. The Article also shows, however, that this theory calls for reforms that could further assure that only the deserving receive the death penalty.

Ronald Turner, The Juvenile Death Penalty and The Court’s Consensus-Plus Eighth Amendment
17 GEO. MASON U. CIV. RTS. L.J. 157 (Winter 2006).

1000+ Death Penalty Links the Clark County, Indiana Prosecuting Attorney.

Stuart Banner, The Death Penalty: An American History (Harvard University Press 2002).

Joseph L. Hoffmann, Protecting the Innocent: The Massachusetts Governor's Council Report
95 J. Crim. L. & Criminology 561
 This article discusses a report on capital punishment issued by the Massachusetts Governor's in May 2004. The Massachusetts report outlined ten bold recommendations for the creation of a new kind of death penalty designed to be as accurate, and as fair, as humanly possible. In this article, the author seeks to address the following questions: How did the Massachusetts Governor's Council Report come about? What made it possible for the Council to take such a bold stand on so many significant death penalty issues? And how should the Council's recommendations be evaluated--in Massachusetts and elsewhere around the nation? In the author's view, the report essentially seeks to outline a set of the best practices currently available for the administration of the death penalty. Capital punishment scholar Frank Zimring has suggested that the report may be the missing link between broad support of the death penalty and its ultimate abolition. Whether or not this is so, the author is optimistic that the Massachusetts report's vision of a more accurate and fair capital punishment system is one with which most U.S. citizens probably are more than willing to live, at least for the time being.

Barry Latzer, Ph.D. and James N.G. Cauthen, Ph.D., Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study (US Dept of Justice, National Institute of Justice 2007) http://www.ncjrs.gov/pdffiles1/nij/grants/217555.pdf
This study focused on the time taken to process direct appeals of capital cases in 14 States: Arizona, Florida, Georgia, Kentucky, Missouri, Nevada, New Jersey, North Carolina, Ohio, South Carolina, Tennessee, Texas, Virginia, and Washington.

For each State, every capital case resolved on direct appeal by the court of last resort (COLR) between January 1, 1992 and December 31, 2002 was examined. This generated a database of 1,676 cases. Measuring from date of death sentence, it took a median 966 days to complete direct appeals. Petitioning the U.S. Supreme Court added 188 days where certiorari was denied, and a median 250 days where certiorari was granted and the issues were decided on the merits. Virginia is the most efficient of all States in the study, with a median processing time from sentence to COLR ruling of 295 days. Measuring from notice of appeal to COLR decision, Georgia, at 297 days, is the fastest court of last resort. Ohio, Tennessee, and Kentucky were the least efficient COLRs, consuming respectively, 1,388, 1,350 and 1,309 days. However, Ohio subsequently reduced its time consumption by 25 percent by eliminating intermediate appeals court review. Median time consumption of capital appeals from notice of appeal to COLR decision was 921 days, far in excess of American Bar Association guidelines, which call for 50 percent of all appeals to be completed in 290 days.

Penny White, Can Lightning Strike Twice? Obligations of State Courts After Pulley v. Harris,
70 COLO. L. REV. 814 (Summer 1999).

Mandatory Justice: Eighteen Reforms to the Death Penalty (Constitution Project 2001). http://www.constitutionproject.org/pdf/MandatoryJustice.pdf

Elizabeth Cepparulo, Note. Unveiling juvenile purgatory: is life really better than death?
(Roper v. Simmons, 543 U.S. 551, 2005.) 16 TEMP. POL. & CIV. RTS. L. REV. 225-255 (2006).
[Lexis] [Westlaw]

Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States (American Bar Association, Section of Individual Rights and Responsibilities June 2001). http://www.abanet.org/irr/finaljune28.pdf  This report is designed as a tool to aid leaders and policymakers interested in evaluating and reforming the administration of the death penalty.

Andrew Ditchfield, Note. Challenging the intrastate disparities in the application of capital punishment statutes. 95 GEO. L.J. 801-830 (2007). [Lexis] [Westlaw]

Corinna Barrett Lain, Furman fundamentals, 82 WASH. L. REV. 1-74 (2007). [Lexis] [Westlaw]
For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even the Justices saw themselves as playing a heroic, countermajoritarian role in the case. But the lessons of Furman are not what they seem. Rather than proving the Supreme Court's ability to withstand majoritarian influences, Furman teaches the opposite-- that even in its more countermajoritarian moments, the Court never strays far from dominant public opinion, tending instead to reflect the social and political movements of its time. This Article examines the historical context of Furman v. Georgia and its 1976 counterpart, Gregg v. Georgia, to showcase a fundamental flaw in the Supreme Court's role as protector of minority rights: its inherently limited inclination and ability to render countermajoritarian change. In theory, the Court protects unpopular minorities, but in practice it is unlikely to do so unless a substantial (and growing) segment of society supports that protection. Even then, Furman reminds us that the Court's “help” may do more harm than good. If the past truly is a prologue, Furman portends that the Court's current interest in scrutinizing the death penalty will not last forever. Like the fair-weather friend, the Court's protection will likely be there in good times but gone when needed the most.

Allen Chair Symposium: The Role of the Death Penalty in America: Reflections, Perceptions, and Reform 41 U. RICH. L. REV. 793-990 (2007). [Lexis] [Westlaw]

Susan Raeker-Jordan, Impeachment calls and death threats: assessing criticisms of the death penalty jurisprudence of Justices Kennedy and O'Connor 52 WAYNE L. REV. 1127-1183 (2006). [Lexis] [Westlaw]

Melanie A. Renken, Comment. Revisiting Tison v. Arizona: the constitutionality of imposing the death penalty on defendants who did not kill or intend to kill. (Tison v. Arizona, 481 U.S. 137, and Enmund v. Florida, 458 U.S. 782, 1982.) 51 ST. LOUIS U. L.J. 895-933 (2007). [Lexis] [Westlaw]

William W. Wilkins, The legal, political, and social implications of the death penalty 41 U. RICH. L. REV. 793-809 (2007). [Lexis] [Westlaw]

ABA's Death Penalty Moratorium Implementation Project
The Death Penalty Moratorium Implementation Project was launched in September 2001as the American Bar Association's "next step" in working to obtain a nationwide moratorium on executions.The individual state assessments will consist in large part of reviewing and analyzing each state's laws and processes affecting death penalty administration. The Project intends to conduct three sets of assessments -- each containing approximately five states. In September 2004, the Project began its initial set of assessments in Alabama, Arizona, Florida, Georgia, and Tennessee. Four months later, in January 2005, the Project began its second set of assessments in Louisiana, Ohio, Oklahoma, South Carolina, Texas, and Virginia. The Project will begin the final set of assessments during the Summer of 2005. The final set will include Arkansas, Indiana, Mississippi, Nevada, and Pennsylvania. The assessments will continue through June 2006 and culminate with a national symposium to review assessment findings.

Capital Defense Network

Center for Justice in Capital Cases
Protecting the constitutional rights of someone facing the death penalty is a complex and compelling challenge. The Center for Justice in Capital Cases creates a higher standard of practice in the capital arena through vigorous advocacy and investigation, cutting-edge work in the social sciences, and a client centered philosophy. By striving to safeguard the rights of indigent capital defendants, the Center hopes to reform the administration of criminal justice one life at a time.

Clarence Darrow Death Penalty Defense College at the University of Michigan

Cornell Death Penalty Project

The Death Penalty Information Center
The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. The Center was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for journalists, and serves as a resource to those working on this issue. The Center is widely quoted and consulted by all those concerned with the death penalty.

Chasing Justice
Kerry Max Crook, Chasing Justice: My Story of Freeing Myself After Two Decades on Death Row for a Crime I Didn’t Commit (William Morrow: New York, NY, 2007).

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Appointment of Counsel

Spangenberg Group, The, Contracting for Indigent Defense Services: A Special Report
Bureau Just. Assistance (April 2000) NCJ #181160. http://www.ncjrs.gov/pdffiles1/bja/181160.pdf
As used in this report, the term "contract" refers to legal agreements between a provider and funder. This excludes staff-based programs with annual budgets but includes nonprofit corporations under contract with a funder, part-time contractors, and contractors who may be referred to as the jurisdiction's public defender. The term "contractors" refers to the attorney, law firm, associated attorneys or firms, or organization that provides representation to indigent persons under contract. A review of the history of indigent defense contracting in the United States focuses on judicial responses to contract systems, legislatures and contract systems, the New York City experience, and empirical studies of contracting systems. This is followed by an overview of the characteristics of deficient and effective contract systems. The report concludes with a review of the lessons learned from past experiences in indigent defense contracting. One lesson is that certain types of contract models carry more risk than others. A second lesson is that requests for proposals should establish guidelines, qualifications, and standards. A third lesson is that national, enforceable standards are needed. The fourth lesson is that monitoring and evaluation are important.

American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (A.B.A. Revised Ed. February 2003).

Welsh S. White, Litigating in the Shadow of Death: Defense Attorneys in Capital Cases
(University of Michigan Press 2006).

Whitney Cawley, Note. Raising the bar: how Rompilla v. Beard represents the Court's increasing efforts to impose stricter standards for defense lawyering in capital cases. (Rompilla v. Beard, 545 U.S. 374, 2005.) 34 PEPP. L. REV. 1139-1185 (2007). [Lexis] [Westlaw]

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Jury Selection

Brooke Butler, The Role of Death Qualification in Jurors' Susceptibility to Pretrial Publicity
37 J. APPLIED SOC. PSYCHOL. 115–123 (2007) http://www.blackwell-synergy.com/doi/abs/10.1111/j.0021-9029.2007.00150.x

Two hundred residents of Florida's 12th Judicial Circuit completed questions measuring participants' level of death-penalty support, death-qualification status, knowledge of the facts surrounding an actual capital case, and attitudes toward the defendant in the aforementioned capital case. Results indicated that death-qualified participants were better able to correctly identify the defendant, recognize most of the factual details of the case, think that the defendant was guilty, and recommend the death penalty. In addition, death-qualified jurors were more likely to feel that the pretrial publicity surrounding the case would have minimal impact on the defendant's right to due process. Legal applications and implications are discussed.

B. Butler and G. Moran, The impact of death qualification, belief in a just world, legal authoritarianism, and locus of control on venirepersons' evaluations of aggravating and mitigating circumstances in capital trials 25 BEHAV. SCI. & L. 57-68 (2007).
The purpose of this study was to investigate the impact of death qualification, belief in a just world (BJW), legal authoritarianism (RLAQ), and locus of control (LOC) on venirepersons' evaluations of aggravating and mitigating circumstances in capital trials. 212 venirepersons from the 12th Judicial Circuit in Bradenton, FL, completed a booklet that contained the following: one question that measured their attitudes toward the death penalty; one question that categorized their death-qualification status; the BJW, LOC, and RLAQ scales; a summary of the guilt and penalty phases of a capital case; a 26-item measure that required participants to evaluate aggravators, nonstatutory mitigators, and statutory mitigators on a 6-point Likert scale; sentence preference; and standard demographic questions. Results indicated that death-qualified venirepersons were more likely to demonstrate higher endorsements of aggravating factors and lower endorsements of both nonstatutory and statutory mitigating factors. Death-qualified participants were also more likely to have a high belief in a just world, espouse legal authoritarian beliefs, and exhibit an internal locus of control. Findings also suggested that venirepersons with a low belief in a just world and an external locus of control demonstrated higher endorsements of statutory mitigators. Participants with legal authoritarian beliefs revealed higher endorsements of aggravators and lower endorsements of nonstatutory mitigators. Legal implications and applications are discussed.

Charles W. Otto, et al, Improving Comprehension of Capital Sentencing Instructions: Debunking Juror Misconceptions 53 CRIME & DELINQ. 502-517 (2007).
Previous research has demonstrated that judicial instructions on the law are not well understood by jurors tasked with applying the law to the facts of a case. The past research has also shown that jurors are often confused by the instructions used in the sentencing phase of a capital trial. The current research tested the effectiveness of a "debunking" approach to improving juror misunderstanding associated with capital sentencing instructions. Participants were randomly assigned to hear either Florida's pattern instructions used in the penalty phase of a capital trial or the same instructions with additional statements that mentioned and refuted misconceptions thought to be associated with established areas of miscomprehension. After participants heard the judicial instructions, their understanding of the law on capital punishment decision making was assessed. The results revealed that comprehension was higher for participants exposed to the bias-refutation statements than for participants who were exposed to only the pattern instructions.

Blaine LeCesne, Tipping the Scales Toward Death: Instructing Capital Jurors on the Possibility of Executive Clemency 65 U.CIN.L. REV. 1051, 1055 (1997).

Scott E. Sundby, A Life and Death Decision, A Jury Weighs the Death Penalty (Palgrave MacMillan 2005).

Bowers, William J., Marla Sandys, and Benjamin D. Steiner (1998). Foreclosed Impartiality Capital Sentencing: Jurors' Predispositions, Guilt Trial Experience, and Premature Decision Making 83 Cornell Law Review 1474.

Bowers, William J. et al., Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition 3 U. Pa. J. Const. L. 171 (2001).

Capital Jury Project

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Penalty Phase

Commonwealth v. Means

Michelle E. Barnett, Ph.D., et al, Differential Impact of Mitigating Evidence in Capital Case Sentencing 7 J. FORENSIC PSYCHOL. PRAC. 39 - 45 (April 3, 2007).
Case law delineates the importance placed on mitigation, but both the psychological and legal literature are inconclusive about the use and effectiveness of biopsychosocial mitigating factors during sentencing in capital trials. The present study surveyed a diverse group of undergraduate participants and found the following circumstances to be most mitigating: mental retardation, hospitalization for a mental illness, no prior criminal record, major head injuries, schizophrenia, and history of childhood physical or sexual abuse. The participants found alcohol/ drug dependence and alcohol/drug intoxication to be aggravating circumstances. The effectiveness of biopsychosocial mitigating factors, the need for mental health professionals to conduct mitigation evaluations, and implications for clinical practice are discussed.

Benjamin Barron, Recent development. Equipoise, collective rights, and the future of the death penalty. (Kansas v. Marsh, 126 S. Ct. 2516, 2006.) 30 HARV. J.L. & PUB. POL'Y 439-450 (2006.) [Lexis] [Westlaw]

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International Treatises and Issues

Cara S. O'Driscoll, The Execution of Foreign Nationals in Arizona: Violations of the Vienna Convention on Consular Relations, 32 ARIZ. ST. L. J. 323 (2000).

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Mental Health Issues

Anthony Michael Despotes, Applying Atkins v. Virginia to Juvenile Defendants: The End is Near for the Constitutionality of Executing Juveniles 34 McGeorge L. Rev. 851 (Summer 2003).

Daniel Nickel, Constitutional Law: Retarded Justice: The Supreme Court’s Subjective Standards for Capital Punishment of the Mentally Retarded
56 Okla. L. Rev. 879 (Winter 2003) http://www.law.ou.edu/lawrevs/olr/

Beyond Atkins: A Symposium on the Implications of Atkins v. Virginia
(Held at the University of New Mexico School of Law October 19, 2002) 3 N. M. L. Rev. 173-349 (Spring 2003) http://lawschool.unm.edu/nmlr/volumes/33/vol2.php
In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that the Eighth Amendment to the United States Constitution forbids the execution of those individuals with mental retardation. Professor James W. Ellis of the University of New Mexico School of Law successfully represented the petitioner Daryl Atkins in this landmark death penalty case. When the Supreme Court declares capital punishment unconstitutional for a whole class of individuals, as legal scholars, we sit up and listen. The Beyond Atkins Symposium provided the New Mexico Law Review with a chance to be one of the first journals to contribute to the extensive scholarship that will flow from the Atkins decision. The articles in this issue explore the implications of Atkins for the mentally retarded, mentally ill, juveniles, and various other participants in the criminal justice system. The number of questions that Atkins answered pales in comparison to the number of questions it raises. This issue of the New Mexico Law Review by no means answers all of those questions, but we hope that it generates a dialogue on these difficult issues.

James W. Ellis, Disability Advocacy and the Death Penalty: The Road from Penry to Atkins
3 N. M. L. Rev. 173 (Spring 2003) http://lawschool.unm.edu/nmlr/volumes/33/vol2.php
The Supreme Court’s decision in Atkins v. Virginia, holding that individuals with mental retardation are not eligible for the death penalty, has many implications, a number of which are explored in articles in this Symposium. This article will focus on Atkins as an example of the Court’s methodology in interpreting the Eighth Amendment, with its unique juxtaposition of legislative action and constitutional text. It will also explore the relationship of advocacy interests, in this case professional and voluntary organizations in the disability community, with both legislatures and the Court.

Victor L. Streib, Adolescence, Mental Retardation, and the Death Penalty: The Siren Call of Atkins v. Virginia 3 N. M. L. Rev. 183 (Spring 2003) http://lawschool.unm.edu/nmlr/volumes/33/vol2.php
The decision in Atkins v. Virginia appears to be one final effort to separate the death penalty’s Siamese twins: juvenile offenders and mentally retarded offenders. Having whipsawed our courts and legislatures for the past twenty years, these capital siblings appear to be in cahoots against the fading forces trying to maintain these age-old practices. Offenders in either category can and do commit horrible crimes that are devastating to the victim’s family and to the broader community. However, the Eighth Amendment to the U.S. Constitution requires that the decision to impose the death penalty must be based upon the nature and circumstances of the offense and upon the character and background of the offender. Juvenile or mentally retarded offenders often more than meet the first requirement but fail to meet the second requirement. The question posed by this article is whether they always fail to have a character and background sufficient to make them eligible for execution. Atkins has said "yes" for mentally retarded offenders, and the same answer surely must follow for juvenile offenders.

Jeffrey Fagan, Atkins, Adolescence, and the Maturity Heuristic: Rationales for a Categorical Exemption for Juveniles from Capital Punishment 3 N. M. L. Rev. 207 (Spring 2003) http://lawschool.unm.edu/nmlr/volumes/33/vol2.php
In Atkins v. Virginia, the U.S. Supreme Court voted six to three to bar further use of the death penalty for mentally retarded offenders. The Court offered three reasons for banning the execution of the retarded. First, citing a shift in public opinion over the thirteen years since Penry v. Lynaugh, the Court in Atkins ruled that the execution of the mentally retarded is "cruel and unusual punishment" prohibited by the Eighth Amendment. Second, the Court concluded that retaining the death penalty for the mentally retarded would not serve the interest in retribution or deterrence that is essential to capital jurisprudence. Atkins held that mentally retarded people lacked a range of developmental capacities necessary to establish the higher threshold of culpability for the execution of murderers that the Court had established in Furman, Gregg, Coker, Woodson, and Enmund. Third, the Atkins Court noted that the impairments of mental retardation lead to a "special risk of wrongful execution." The Atkins decision, though welcomed by both popular and legal policy audiences, naturally raises the question: what about juveniles? After all, the very same limitations in developmental capacities that characterize mentally retarded defendants also characterize a significant proportion of adolescent offenders. The parallels between capital punishment for adolescents and for the mentally retarded have been echoes both in popular and legal discourse since the resumption of capital punishment following Furman. Prior to Atkins, many groups protested the use of capital punishment for both types of offenders, invoking arguments against capital punishment that applied equally to each. The popular coupling of concerns about adolescents with the concerns about the mentally retarded seemed to naturally invite an extension of the Atkins Court’s reasoning to juveniles by highlighting the diminished capacity for culpability common to offenders of both groups. In fact, on August 30, 2002, in a rare dissent from an order declining to stay an execution, Justices Stevens, Breyer, and Ginsburg urged the Court to reconsider the constitutionality of allowing juveniles to be sentenced to death. In reference to the Atkins decision, the Justices argued that reexamining the "juvenile" issue was warranted, thereby underscoring yet again the similarities between both cases.

Douglas Mossman, M.D., Atkins v. Virginia: A Psychiatric Can of Worms
3 N. M. L. Rev. 255 (Spring 2003) http://lawschool.unm.edu/nmlr/volumes/33/vol2.php
This article offers one psychiatrist’s perspective on the problems Atkins raises for courts that handle death penalty cases. In contrast to the overarching aim of the majority’s opinion in Atkins—making the administration of capital punishment more equitable—the Supreme Court’s latest prescription of psychiatric help may only add a new layer of complexity and confusion to the already capricious process through which the U.S. criminal justice system imposes death sentences. To explain why, I first provide a brief review of the Supreme Court’s 1989 Penry decision, focusing on the role that evidence of mental retardation played in death penalty cases before Atkins was decided. Section III then considers Daryl Renard Atkins’s criminal case, which nicely illustrates the type of information that Penry required jurors to consider in making death penalty determinations—and the contributions of mental health professionals to those jury determinations. Following this, the article looks at how the Supreme Court majority in Atkins characterized the appellant’s mental condition and the diagnostic process. Section IV discusses the actual process of diagnosing mental retardation, the ambiguities in that process, and the way that courts and legislatures may distort clinical diagnosis for use in legal proceedings. Section V describes the contradiction between professional organizations’ treatment of, and response to, Atkins and these organizations’ customary stance on the use of diagnoses for non-clinical purposes. Section VI describes the potential implications of the Atkins decision for capital defendants with psychiatric problems as incapacitating as, or more disabling than, mental retardation. Section VII concludes with a summary of how the Atkins majority’s statements may affect testimony by mental health experts, and the effect of such testimony in future death-sentencing determinations.

Christopher Slobogin, What Atkins Could Mean for People with Mental Illness
3 N. M. L. Rev. 293 (Spring 2003) http://lawschool.unm.edu/nmlr/volumes/33/vol2.php
This essay expands on an argument I briefly made a few years ago, to the effect that states that prohibit execution of mentally retarded people or juveniles violate the equal protection clause if they continue to authorize imposition of the death penalty on people with mental illness. At the time the earlier article was written, only thirteen states banned execution of people with retardation, and a somewhat greater number prohibited execution of children under sixteen. Now, of course, thanks to Jim Ellis et al. and the Supreme Court’s decision in Atkins v. Virginia, no state is permitted to impose a death sentence on someone who suffers from mental retardation. While the constitutional status of imposing the death penalty on children remains somewhat murky, the holding in Atkins barring execution of people with retardation, by itself, should mean that execution of people with mental illness is also banned nationwide, if the equal protection argument is accepted.

Michael L. Perlin, "Life Is in Mirrors, Death Disappears": Giving Life to Atkins
3 N. M. L. Rev. 315 (Spring 2003) http://lawschool.unm.edu/nmlr/volumes/33/vol2.php
Anyone who has spent any time in the criminal justice system—as a defense lawyer, as a district attorney, or as a judge—knows that our treatment of criminal defendants with mental disabilities has been, forever, a scandal. Such defendants receive substandard counsel, are treated poorly in prison, receive disparately longer sentences, and are regularly coerced into confessing to crimes (many of which they did not commit). And those of us who know about this system know that it is a scandal of little interest to most lawyers, most citizens, and most judges. We further know that the one question on which we obsessively focus—the scope and role of the insanity defense—is virtually irrelevant to this entire conversation.

This is not news and has not been so for decades. We are content to "bury our heads in the sand" and ignore the ramifications of the morally corrupt system that we have created. But every once in a while, a case is decided that makes us reconsider this question and forces us to see what we do on a regular basis in that system. Atkins v. Virginia is such a case.

My thesis is simple: In spite of the impressive victory earned in Atkins by advocates for persons with mental disabilities, that victory may be illusory unless we look carefully at a constellation of legal, social, and behavioral issues that have combined to poison this area of the law for decades. Atkins gives us a blueprint with which to work, but we must remain vigilant to make sure that it does not become merely a "paper victory." This article will raise seventeen issues that must be considered rigorously and carefully if Atkins is to make any sense and if it is to have any true meaning for the population that is its focal point.

Elizabeth Rapaport, Straight Is the Gate: Capital Clemency in the United States from Gregg to Atkins
3 N. M. L. Rev. 349 (Spring 2003) http://lawschool.unm.edu/nmlr/volumes/33/vol2.php
This Article will examine executive clemency decisions in capital cases, from 1977, the year of the first execution after the Supreme Court sanctioned the resumption of executions in Gregg v. Georgia, until June of 2002, when Atkins v. Virginia was decided. The power of the executive to grant clemency to a capital defendant can be viewed as a gateway—one last chance to be spared capital punishment. The gateway to clemency has been exceedingly narrow in this quarter century era of capital punishment. Perhaps surprisingly, it has been very narrow indeed for the three classes of capital prisoners who are the focus of this Beyond Atkins Symposium, and who might be expected to be particularly suitable candidates for clemency, i.e., juveniles, the mentally retarded, and the mentally ill. Clemency decisions are of course fraught for those at the threshold of execution, but they are also fraught for governors and Presidents charged with deciding clemency. This Article will also explore the narrow path the decision makers walk as they confront the moral and political risks the clemency power entails.

Richard J. Bonnie and Katherine Gustafson, The challenge of implementing Atkins v. Virginia: how legislatures and courts can promote accurate assessments and adjudications of mental retardation in death penalty cases 41 U. RICH. L. REV. 811-860 2007). [Lexis] [Westlaw]

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