The Scientific and the Social in Implementing Atkins v. Virginia

Abstract

Atkins v. Virginia (2002) categorically exempts intellectually disabled defendants from execution, yet some constitutionally suspect punishments suggest a gap between law and practice. This article moves beyond critiquing Atkins' formal implementation to provide a decentered analysis of the Atkins gap focused on the category of intellectual disability. It explores how drawing boundaries around intellectual disability in capital cases requires law to grapple with fluid scientific and social constructs through a study of how courts operationalize intellectual disability in capital cases. It draws from literatures considering the construction of intellectual disability and law's relationship to the scientific and the social and finds that this intersection first enables a conceptual disconnect between scientific and legal constructions of intellectual disability and, second, invites the use of stereotypes to inform the category. These processes undermine Atkins'—and other categorical exemptions'—ability to functionally limit extreme punishments and also reveal law as mutually constitutive.

“The Right Kind of Crazy”: How Patrol Officers Police the Boundaries of Mental Illness through Hybridized Strategies

“…While this framing may be novel in the policing context, the broader punishment and society literature has already mobilized a constructionist approach to show that the on-the-ground meaning of criminal justice policies predicated on these hybridized medical-social categories is especially dependent on how frontline workers do categorization work (for example, Miller and Radelet 1993;Rhodes 2004;Pifer 2016). For example, Lorna Rhodes (2004) shows how custody staff renegotiate and delineate the boundary between "mad" and "bad" in solitary confinement when deciding who requires care and who requires punishment against the carceral logics that dominate in maximum custody.…”

The International Persistence and Resilience of Solitary Confinement

“…Meanwhile, those who are excluded from solitary confinement experience not just protection, but also labeling as weak and vulnerable, which in turn perpetuates destructive stereotypes about age, gender, and mental ability. Indeed, in other contexts in which protected categories of vulnerable subjects have been carved out and then exempted from harsh punishments, including exemptions from the death penalty and sentences to life without parole for certain vulnerable sub-populations, scholars have criticized the exemptions as encouraging and perpetuating destructive stereotypes about mental disability (Blume et al 2008, Pifer 2016, and as inadvertently producing harsher sentences for those prisoners deemed vulnerable and deserving of protections (Gottschalk 2014). In sum, many attempts to improve conditions of confinement in solitary, or to limit its imposition on some vulnerable groups, have been positive, reformist efforts, ultimately bolstering the legitimacy of the existing system, rather than negative, non-reformist or abolitionist, efforts, with the potential to challenge the legitimacy of systems of solitary confinement.…”

Legal concept‐creep and scientific imprecision

“…American death penalty jurisprudence showcases the challenges that arise when courts circumscribe tidy legal categories around indeterminate scientific constructs. When the US Supreme Court set aside Florida's IQ threshold for deciding a capital defendant's intellectual (dis)ability in favor of a more clinically informed standard, subsequent practice fell dispiritingly short of the protective restriction on the death penalty that the Supreme Court envisioned [4]. Rather than displaying caution in the face of scientific imprecision, lower courts in many States across the United States instead re‐interpreted the science so as to operationalize categories of disability neatly—and rarely so in the defendants' favor.…”