The Supreme Court Ruled States Cannot Execute the Mentally Disabled- How are they Doing it, Anyway?

By: Abbey Lahnston

Intellectual Disability is characterized by “significant limitations both in intellectual functioning and adaptive behavior, which covers many everyday social and practical skills. This disability originates before the age of 22.”[1] In 2002, the Supreme Court of the United States abolished the execution of the intellectually disabled in Atkins v. Virginia.[2] But in doing so, they gave great discretion to the states in how to determine “intellectual disability.”[3] With such discretion, the states went in many different directions. The states that are death-row committed, those with the highest execution rates in the country, have arguably created tests that are impossible for defendants suffering from intellectual disability to meet.

Consider first, Texas, who, since 1976, has executed 569 individuals.[4] When the Supreme Court handed down its decision in Atkins v. Virginia, Texas resisted the ruling by creating a set of Briseno factors to determine intellectual disability.[5] These factors considered, among others, things such as whether the defendant showed leadership, or could lie in his own interests.[6] The Supreme Court ultimately overruled the test in Moore v. Texas, where Justice Ginsburg eloquently wrote, ““the Briseno factors adopted by the Texas Court of Appeals, for evaluating an Atkins claim, are based on superseded medical standards that create an unacceptable risk that a person with intellectual disabilities will be executed in violation of the Eighth Amendment.”[7] Texas did not stop there, instead in Moore v. Texas II, Texas again used the same wording of the Briseno factors to yet again determine that Moore was not intellectually disabled.[8] Again, The Supreme Court determined the test to be unconstitutional and listed the ways in which their analysis of intellectual disability mirrored their first analysis.[9]

Texas does not stand alone in its resistance to the ruling determined in Atkins v. Virginia, and the evidence is overwhelming. Virginia, before it abolished the death penalty in 2021, tasked the jury with determining whether someone was eligible for the death penalty at the sentencing phase.[10] This meant that jurors were not only at a heightened risk for being influenced in their decision making by aggravating circumstances,[11] but also this system costed the state hundreds of thousands more dollars.[12] The reasoning is simple and can be said best by Professors Lain and Ramseur from the University of Richmond, “Virginia’s determination of intellectual disability by a jury at sentencing simply made no sense, other than as a way to resist the ruling.”[13]

Oklahoma uses an IQ cutoff test, so anyone over the IQ of 76 cannot be considered intellectually disabled.[14] Florida too used an IQ cutoff test until the Supreme Court ruled excluding anyone with an IQ above 70 was unconstitutional.[15] Missouri resisted the ruling by the Supreme Court entirely in 2021 when they executed a man by the name of Ernest Johnson.[16] Even though experts for both the defense and the prosecution agreed on Johnson’s intellectual disability, the Missouri Governor failed to pardon Mr. Johnson saying, “The state is prepared to deliver justice and carry out the lawful sentence Mr. Johnson received in accordance with the Missouri Supreme Court’s order.”[17] Last, and most definitely not least, Georgia. Georgia, although sixth in the country for most executions,[18] created arguably the toughest test to beat. Georgia is the only state in the union that requires the defendant prove their intellectual disability beyond a reasonable doubt.[19]

Now, the question arises of why one should care about this? First, intellectually disabled individuals are being executed across the country, especially those in death committed states. For Florida and Georgia, since the ruling has been handed down in 2002, no one has successfully pled intellectual disability.[20] For the intellectually disabled, many cannot fight for themselves, and need help from the people around them. It is time to save those that cannot save themselves. Second, if someone is suffering from an intellectual disability, the likelihood of their execution entirely depends on what state they reside in. One’s life should not be on the line just because they live in one state compared to another. It is time to recognize the unconstitutionality of what is happening across the country, and work to create a solution.




[1]Intellectual Disability Defined, Death Penalty Information Center,; Intellectual Disability, American Association on Intellectual and Developmental Disabilities,

[2]See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002).

[3] Intellectual Disability and the Death Penalty, ACLU (2021),

[4]Texas Death Penalty Facts, Texas Coalition to Abolish the Death Penalty (2021),

[5]Ex Parte Briseno, 135 S.W.3d 1 (Tex. Crim. App., 2004).


[7]Moore v. Texas, 137 S. Ct. 1039 (2017). (quoting Justice Ginsburg).

[8]Moore v. Texas, 139 S. Ct. 666, 667 (2019).

[9]Id. at 672

[10]Corinna Barrett Lain & Doug Ramseur, Disrupting Death: How Dedicated Capital Defenders Broke Virginia’s Machinery of Death, 56 Univ. of Richmond L. Rev. 1, 2 (2021, Forthcoming), Available at


[12]State Studies on Monetary Costs, Death Penalty Information Center,

[13]Lain and Ramseur, supra note 92 at 38.

[14]Ok. Stat. §21-701.10b(A)(3)(C) (2020).

[15]Hall v. Fla., 572 U.S. 701, 134 S. Ct. 1986 (2014).

[16]Missouri Executes Murder Convict with ‘Intellectual Disability’, Aljazeera (Oct. 6, 2021),

[17]Kate Randall, Missouri Executes Ernest Johnson, intellectually Disabled Death Row Prisoner, World Socialist Web Site (Oct. 5, 2021),

[18]Total Number of Executions in the United States from 1976 to 2020, by State, Statista (Nov. 2020),

[19]Lauren Sudeall Lucas, An Empirical Assessment of Georgia’s Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases, 33 Ga. St. U. L. Rev. 553 (2017).

[20]John H. Blume, et. al, A Tale of Two (And Possibly Three Atkins): Intellectual Disability and Capital Punishment Twelve Years After the Supreme Court’s Creation of a Categorical Bar, 23 Wm. & Mary Bill Rts. J. 393, 412 (2014); Lauren Sudeall Lucas, An Empirical Assessment of Georgia’s Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases, 33 Ga. St. U. L. Rev. 553 (2017).