Justice Kavanaugh begins and ends the majority opinion in Flowers v. Mississippi 1 with the same assertion: that the Court "break[s] no new legal ground." 2 Thirty-five years earlier, the Supreme Court had held in Batson v. Kentucky 3 that a prosecutor's racially motivated exercise of the peremptory challenge violated the Equal Protection Clause of the Fourteenth Amendment, and plainly that foundational holding had not changed.With respect to the question of what kind of facts count toward the establishment of discriminatory motivation in the exercise of the peremptory challenge, Justice Kavanaugh's modesty is a little exaggerated, because there are some new tidbits in Flowers, but it is not false.Moreover, his claim is certainly accurate with respect to the question of what combination of facts, taken together, suffice to establish discriminatory motivation because there has not been-and never will be-another case like Flowers. 4 But, with respect to the next question, Flowers very quietly signals a big change, one adopting an approach that prior to Flowers only one federal circuit-the Ninth-had employed. 5 What should happen when the probative facts, taken together, establish a prosecutor's racial motivation?Should a court, counterfactually, determine whether that prosecutor would have done the same thing absent racial motivation, or should the court simply reverse the conviction?Prior to Flowers, eight federal Courts of Appeal had held that Footnote 21 of Arlington Heights v. Metropolitan Housing Development Corp. 6 commands the

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Constitution. Due to this categorical exemption, the accuracy and reliability of an intellectual disability determination is literally a matter of life or death. We tested the influence of context on mild intellectual disability diagnosis in a sample of 179 people with intellectual disability expertise. We found that experts diagnosed intellectual disability at nearly identical rates in death penalty and disability benefits cases. Men, Republicans, and people who believed intellectual disability is not an excuse for a crime were significantly less likely to diagnose intellectual disability in both types of cases. These findings suggest that in this sample, the facts of the crime did not cause the experts to refrain from diagnosing intellectual disability.

With respect to African Americans, the history of racial discrimination in the imposition of the death penalty is well-known, and the persistence of racial disparities in the modern era of capital punishment is well-documented. In contrast, the influence of Latino ethnicity on the imposition of the death penalty has been studied very little. A review of the limited literature reveals evidence of discrimination against Latinos. Archival studies generally find ethnicity-of-victim discrimination, and some of those studies find ethnicity-of-defendant discrimination disadvantaging Latino defendants; these findings parallel the findings of the much more robust literature investigating bias against African American defendants and victims. The controlled experimental studies generally show both ethnicity-of-defendant and ethnicity-of-victim discrimination disadvantaging Latinos. Related literature investigating stereotypes, animosity, and discrimination in other criminal justice decisions further suggests the likelihood of ethnicity discrimination in the imposition of capital punishment, as well as the need for further research.

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present data from the National Registry of Exonerations. Then we turn to the causes of the disproportionate wrongful conviction of intellectually disabled persons and conclude by considering implications of those causes for reform.

In Atkins v. Virginia, the U.S. Supreme Court held that the execution of a person with intellectual disability violates the Eighth Amendment's Cruel and Unusual Punishment Clause. After more than a decade of Atkins litigation, we perceived there to be a substantial risk that race influences intellectual disability-and consequently, life and death-determinations. Due to the difficulty of demonstrating the influence of race in a particular case, we decided to investigate its potential effects in a controlled experiment. We did so by manipulating race in three different ways and by presenting cases with both strong and ambiguous evidence of intellectual disability. We found statistically significant race effects when we showed the face of the defendant and when the evidence of intellectual disability we provided was ambiguous. The influence of race was more pronounced when we limited our sample to white mock jurors. Even with a relatively weak manipulation, the size of the race effect is substantial. We also discovered that many participants weighed the facts of the criminal case and the consequences of their decision (death penalty eligibility), even though it was not relevant to the determination of whether the claimant was (or was not) a person with intellectual disability. These findings shed light on why claims of intellectual disability almost never succeed before juries: death-qualified jurors may not make the diagnostic determination based on the evidence, but instead likely upon their own assessment of death-worthiness.

68 South Carolina Law Review 331 (2017)Capital punishment in this country, and in South Carolina, has its roots in racial subjugation, stereotype, and animosity. The extreme disparities we report here have dampened due to the combined effects of decreasing levels of open racial antagonism, the reforms of the modem death penalty, including categorical exemptions for juveniles and person with intellectual disabilities and prohibition of the imposition of the death penalty for the crime of rape, and the (small) increase in diversity in capital juries. But dampened does not mean eradicated. Significant disparities in the administration of capital punishment persist today. The color of a defendant's skin (and the color of the victim's skin) are still the strongest predictors of whether capital punishment will be south and imposed. No less neutral an authority than the Government Accounting Office has concluded that in studies of capital punishment, findings of statistically significant racial disparity, particularly race of victim disparity, are ubiquitous. Similarly, while gross racial stereotyping and animosity is less common in modern death penalty cases, some instances still occur, and many, many cases involve only slightly disguised racism on the part of judges, jurors, prosecutors, and defense counsel.To imagine that a punishment whose history is so steeped in racism can ever be administered in a race neutral way is more than color blindness, and more than wishful thinking; it is willful blindness.

Courting Death: The Supreme Court and Capital Punishment by Carol and Jordan Steiker is, as the introduction states, “the story of how the American death penalty has come full circle over the past ...

Most death penalty lawyers who practice long enough will watch the execution of a client. It is always, always terrible, but not always terrible in the same way. With each client’s execution, a lawyer is confronted with the death of a human being—not an accidental death, not an inevitable death, but an avoidable one—and with his or her own failure to prevent that death. Some executions also involve a very personal loss for the lawyer because of their relationship with the client. Other executions are horrific because things go awry and impose extreme suffering on the executed individual. No matter how many times a lawyer walks that last walk with a client, it does not get easier. Each loss is different because each life is different. I have lost clients whom I have loved as friends and I have witnessed a botched execution. Ramiro Hernandez Llanas was not a friend, nor did his execution appear to cause him pain. But for me as a lawyer, his execution was the hardest. I could not save Ramiro. I could not get even one judge to care about Texas’s willingness to flout the law. This is the story of Ramiro’s case—not a famous case, but one that otherwise would be lost to history, as many outrageous applications of the death penalty are.

Empathy lies at the core of the capital trial. If jurors come to see the defendant as “different,” “other,” or not “fully human,” they are more likely to determine that the defendant “deserves” the ultimate punishment, making what the Supreme Court has described as essentially a moral judgment about the value of the life of the accused. Conversely, if jurors can identify with the defendant, imagine his “walk in life,” or “see the world through his eyes,” they are less likely to choose the death penalty. Despite its importance and decades of research, empathy is not clearly understood, and its implications for capital trials are largely unexplored. This Article examines the implications of emerging neuroscientific findings regarding empathy for capital trials. We consider implications for jury selection, the presentation of evidence, and arguments by counsel. We conclude that the neuroscience findings we have summarized provide additional support for our prior conviction: It is not possible for a system of capital punishment to neutrally determine which defendants “deserve” death.

In 2002, in Atkins v Virginia, the US Supreme Court ruled that executing individuals with intellectual disability violated the Constitution’s Cruel and Unusual Punishment Clause. The Court, however, left it to the states to implement the new categorical exclusion. Post-Atkins, some states have adopted definitions of intellectual disability and procedures that make it virtually impossible for defendants to prevail. Setting aside the disparate treatment of those who clearly fall within the clinical definition of intellectual disability, questions remain about the fairness and morality of executing someone who falls just on the ‘wrong’ side of the diagnostic line, but in every relevant respect is equally disabled. Atkins represents a steps down the road toward humanitarian recognition that many persons with mental disabilities are not sufficiently morally culpable for the death penalty.

Atkins v. Virginia, 2002, established that execution of a person with intellectual disability violates the cruel and unusual punishment clause of the eighth amendment. According to editor Edward Po...

This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the State of Delaware from 1977-2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision-making authority in capital trials. Controlling for a number of legally relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, stranger homicides, and the victim's gender also increased the likelihood of a death sentence, as did the county of the homicide. We reflect on the implications of these results for debates about the constitutionality of judge sentencing in capital cases.

INTRODUCTIONIn 2002, following a consistent trend of state legislative action prohibiting the use of the death penalty for defendants with intellectual disability,1 the United States Supreme Court overruled its thirteen-year-old decision of Penty v. Lynaugh? A majority of Justices in Atkins v. Virginia3 declared a categorical exemption from capital punishment for death row inmates and capital defendants who are-in fact-persons with intellectual disability. In doing so, the Court recognized that defendants with intellectual disability are less culpable because they have diminished capacities to understand and process information, to communicate, to learn from mistakes and experiences, to engage in logical reasoning, to control impulses, and to understand the reactions of others.4 The Court was also moved by the fact that defendants with intellectual disability are at a heightened risk of wrongful execution given higher incidences of false confessions, impairments in communicating with their attorneys about facts and details relevant to the case, difficulty testifying, and demeanors that a jury may erroneously interpret as lack of remorse.* * * * 5The Court defined the exemption by embracing two virtually identical and clinical definitions then in existence-one provided by the American Association on Mental Retardation (AAMR) (now the American Association on Intellectual and Developmental Disabilities (AAIDD))6 and the other by the American Psychiatric Association (APA) in its Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR).7 The three-part clinical definitions set forth by the AAIDD and DSM-IV-TR define intellectual disability as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning that originated before the age of eighteen.8 State measures for ascertaining intellectual disability, the Court suggested, would be appropriate-or constitutional-so long as they generally conformed to these clinical definitions.9 This suggestion led to a tremendous variation in how state courts resolved the intellectual disability matter.10 Just last term, in Hall v. Florida,* 11 the Court stepped in and laid down a much clearer principle as it reaffirmed its commitment to Atkins. In Hall, the Court invalidated a gloss on the definition of intellectual disability adopted by the Florida Supreme Court, which had the possible effect of rendering the categorical exclusion a nullity and risk[ed] executing a person who suffers from intellectual disability.12In this Article, which is in many respects a follow-up to the prior research in this area by two of the authors,13 we will examine capital cases decided by the lower courts since the Court created the categorical ban against the execution of persons with intellectual disability.14 Twelve years after the Supreme Court's Atkins decision, we analyzed a number of issues including filing rates, success rates, the reasons cases that often appear meritorious lose, differences in decisionmakers (i.e., judge versus jury), and recent trends in intellectual disability litigation. As we will discuss in more detail below, there are several positive trends in the lower courts. There are, however, some negative trends-some of which could, if not corrected by the Supreme Court, bring to bear the fear articulated in Hall of effectively nullifying the High Court's mandate.15I. Overall Filing and Success RatesDissenting in Atkins, Justice Scalia maintained that exempting people with intellectual disability from the death penalty would promote frivolous litigation.16 He envisioned a world in which defendants feigning intellectual disability would, without penalty or risk, make spurious intellectual disability claims.17 He stated:One need only read the definitions of mental retardation ... to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all. …