Eroding Atkins v. Virginia: How the Courts Are Allowing Persons with Intellectual Disabilities to Be Sentenced to Death

*Alexandra K. Becnel

I. The Decision in Atkins Has Spared the Lives of People with Intellectual Disabilities

As of October 2021, there are 132 people on death row in Ohio alone.[1] Since the Supreme Court’s decision in Atkins v. Virginia,[2] more than 130 people awaiting execution have been spared because of their intellectual disability diagnoses.[3] Many people, like Danny Hill, are caught in an Eighth Amendment loophole and will face execution in the coming months.[4]

Danny Hill was born in 1967 to Vera Williams.[5] Vera was intellectually disabled, and illiterate, and dropped out of school before she entered high school.[6] As a child, doctors diagnosed Danny with multiple neurodevelopmental disorders.[7] He attended special education classes and had significant deficits in basic skills, such as hygiene.[8] Throughout his life, Danny received approximately ten intellectual disability diagnoses.[9] Danny’s three brothers were also intellectually disabled.[10]

In 1986, Danny was convicted of killing a twelve-year-old boy and was sentenced to death.[11] At trial, three psychologists testified that Danny had an IQ in the range of fifty-five to sixty-eight and the moral development of a two-year-old.[12] The trial court determined Danny had diminished mental capacity yet imposed a sentence of death on the grounds that the aggravating factors of the murder outweighed the mitigating factors, including Danny’s impaired cognitive functioning.[13] In 1989 and 1992, respectively, the Eleventh District Ohio Court of Appeals and the Ohio Supreme Court upheld Danny’s death sentence.[14] However, in 2002, the Supreme Court held that executing the intellectually disabled[15] violates the Eighth Amendment and does not advance the purposes of deterrence and retribution.[16]

II. Atkins Gave Danny Hope That His Life Would Be Spared

Based on the Court’s holding in Atkins, the Sixth Circuit ordered the State of Ohio to reassess Danny’s intellectual functioning.[17] In 2010, Danny filed a writ of habeas corpus in federal court, claiming, among other things, that trial counsel failed to investigate Atkins evidence.[18] The district court denied his petition, and the Sixth Circuit reversed.[19]

Meanwhile, in Hall v. Florida[20] and Moore v. Texas,[21] the Court elaborated on its holding in Akins by emphasizing clinical expert determinations of intellectual disability using adaptive functioning measures and explaining an assessment tool’s margin of error.[22] Adaptive functioning assessments measure a person’s skills and deficits in three broad areas: conceptual, social, and practical domains.[23] The tools used by mental health professionals to assess intellectual disability have margins of error, which can be influenced by a person’s culture, age, other impairments, and the examiners themselves, among other factors.[24] By the time the Sixth Circuit reversed Danny’s Atkins denials, Moore was law. The Sixth Circuit wrote that “the Ohio courts ha[d] made the same basic mistake as the Texas courts” by weighing adaptive strengths as evidence against a finding of intellectual disability and overemphasizing those relative strengths.[25] The Sixth Circuit reversed and remanded Danny’s case with instructions to grant the petition and issue a writ of habeas corpus.[26] In a final effort to avoid the Sixth Circuit decision, the Warden filed a writ of certiorari to the Supreme Court, which was ultimately granted.[27]

III. The Supreme Court and the Sixth Circuit Artfully Dodged Atkins

The Supreme Court remanded the case, holding that the Sixth Circuit’s reliance on Moore was improper because “habeas relief may be granted only if the state court’s adjudication ‘resulted in a decision that was contrary to, or involved an unreasonable application of[,]’ Supreme Court precedent that was ‘clearly established’ at the time of the adjudication.[28] Although Atkins’ prohibition on sentencing intellectually disabled people to death was clearly established at the time of adjudication, it was not clear what authority or method applied to determine who was intellectually disabled.

The holding in Atkins is straightforward: It is unconstitutional to execute an intellectually disabled person.[29] However, what the Court did not make clear was how to define intellectual disability. Subsequently, in Hall and Moore, the Court clarified that clinicians, not lawyers and laypeople, should determine symptoms of neurodevelopmental disorders.[30] Moore held that it was improper for a state court to disregard clinical standards and rely upon lay stereotypes in assessing intellectual disability.[31]

In Atkins, Hall, and Moore, the Court emphasized clinical definitions of intellectual disability in evaluating a person’s intellectual functioning, adaptive skills and deficits.[32] Adaptive functioning is comprised of reasoning, problem-solving, learning, judgment, and other skills.[33] Everyone, of all intellectual abilities, has skills and deficits in these areas. For example, a person with deficits in the social domain might demonstrate very concrete thinking and misread social cues.[34]

It is exceedingly difficult to truly evaluate adaptive functioning in a prison environment. Prisoners have very few opportunities to cook, manage a bank account, hold a job, make and keep a schedule, or any of the myriad of tasks a mental health professional would evaluate to assess a person’s adaptive skills.[35] On remand, the Sixth Circuit acknowledged the limitations of assessing adaptive functioning in a prison setting and emphasized the findings of mental health professionals.[36] The court focused on determining whether the Ohio Court of Appeals unreasonably concluded Danny was not intellectually disabled.[37] In a nine to seven en banc decision, the Sixth Circuit upheld Danny’s death sentence.[38] While admitting another judge could have determined that Danny was intellectually disabled, the court held that the Ohio Court of Appeals did not act unreasonably in finding that he was not intellectually disabled.[39]

IV. Danny is Intellectually Disabled Yet He Will Not Be Spared

Danny is intellectually disabled, as evidenced by a plethora of school records, including multiple mental health and IQ assessments before he turned eighteen, court records, and expert testimony.[40] The Ohio courts and the Sixth Circuit candidly acknowledged Danny’s intellectual disability.[41] It was only after the decision in Atkins that Danny’s disability was questioned.[42] Justice Moore wrote, “[n]o person looking at this record could reasonably deny that Hill is intellectually disabled under Atkins.”[43]If Atkins does not preclude Danny’s death sentence, and the death sentences of others like him,[44] what does Atkins stand for?

* Alexandra is an evening student at the University of Baltimore School of Law and a Staff Editor for Law Review. Alexandra also works as a fulltime partner, mitigation specialist, and investigator at Dinolt Becnel & Wells Investigative Group LLC, a private investigations firm based in Baltimore and Washington, D.C. Prior to law school, she worked on behalf of people facing the death penalty as a mitigation specialist at the Northern Virginia Capital Defender Office. She earned her master’s degree in social work from the University of Maryland School of Social Work and her bachelor’s degree in fine arts from the Maryland Institute College of Art. She is also a licensed social worker and certified forensic social worker.


[1] Death Row, Ohio Dep’t of Rehab. & Corr. (last updated Oct. 22, 2021), https://drc.ohio.gov/death-row.

[2] Atkins v. Virginia, 536 U.S. 304 (2002).

[3] DPIC Analysis—Intellectually Disabled Defendants of Color, Foreign Nationals Disproportionately Subject to the Death Penalty, Death Penalty Info. Ctr. (Dec. 4, 2020) https://deathpenaltyinfo.org/news/dpic-analysis-intellectually-disabled-defendants-of-color-foreign-nationals-disproportionately-subject-to-the-death-penalty.

[4] See id.; see also Joe Harris, Divided Sixth Circuit Upholds Death Penalty in Child Murder Case, Courthouse News Serv. (Aug. 20. 2021), https://www.courthousenews.com/divided-sixth-circuit-upholds-death-penalty-in-child-murder-case/.

[5] Appellee’s Brief in Opposition to Petition for Writ of Certiorari at 4, Shoop v. Hill, 139 S. Ct. 504 (2019) (No. 18-56).

[6] Id.

[7] Harris, supra note 4.

[8] Id.

[9] Hill v. Shoop, 11 F.4th 373, 400 (6th Cir. 2021) (Moore, J., dissenting).

[10] Appellee’s Brief in Opposition to Petition for Writ of Certiorari at 4, Shoop, 139 S. Ct. 504 (No. 18-56).

[11] State v. Hill, 64 Ohio St. 3d 313, 334–35 (1992).

[12] Id.

[13] Id. at 335.

[14] Id.; State v. Hill, Nos. 3720, 3745, 1989 Ohio App. LEXIS 4462 (Ct. App. Nov. 27, 1989). The Sixth Circuit Court of Appeals affirmed Danny’s death sentence on August 20, 2021. Hill, 11 F.4th at 437.

[15] The Atkins Court used the term “mental retardation” because this was the official clinical diagnosis at the time of its ruling. Hall v. Florida, 572 U.S. 701, 704 (2014); American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders § 319, p. 33 (5th ed. 2013).

[16] Atkins v. Virginia, 536 U.S. 304, 321 (2002). The following year, Danny filed a petition for state post-conviction relief. Hill, 11 F.4th at 381. The state trial court held an evidentiary hearing and heard testimony regarding Danny’s intellectual capacity at the time of the hearing from defense experts and a state’s expert. Id. The test is not whether a defendant is intellectually disabled at the time of trial, or some subsequent hearing, but whether the person was intellectually disabled at the time of the offense. See Atkins, 536 U.S. at 321; see also Hill v. Anderson, 960 F.3d 260, 277 (6th Cir. 2020), vacated, 964 F.3d 590 (2020); see also Smith v. State, 357 S.W.3d 322, 349 (Tenn. 2011). The state’s expert concluded that Danny was not intellectually disabled. Hill, 11 F.4th at 401. The defense experts, however, concluded he was intellectually disabled. Id. In 2006, the trial court denied Danny’s petition for relief, and in 2008, the Ohio Court of Appeals affirmed the decision. Id. at 401–02. Finally, in 2009, the Ohio Supreme Court denied review. Shoop v. Hill, 139 S. Ct. 504, 505–06 (2019).

[17] Hill v. Anderson, 300 F.3d 679 (6th Cir. 2002).

[18] Hill v. Anderson, No. 4:96CV0795, 2010 U.S. Dist. LEXIS 132468 *1, *3 (N.D. Ohio Dec. 14, 2010).

[19] Shoop, 139 S. Ct. at 506.

[20] Hall,572 U.S. 701.

[21] Moore v. Texas, 137 S. Ct. 1039 (2017).

[22] Hall, 572 U.S. at 722–24; Moore, 137 S. Ct. at 1051–53.

[23] American Psychiatric Ass’n, supra note 15, at 33.

[24] Dilip R. Patel et al., A Clinical Primer on Intellectual Disability, 9 Translational Pediatrics S23, S25, S27, S29 (2020).

[25] Hill v. Anderson, 881 F. 3d 483, 486–87 (2018).

[26] Id. at 487.

[27] Hill v. Shoop, 11 F.4th 373, 383 (6th Cir. 2021).

[28] Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (quoting 28 U.S.C. § 2254(d)(1)) (emphasis added).

[29] Atkins v. Virginia, 536 U.S. 304, 320–21 (2002).

[30] Hall v. Florida, 572 U.S. 701, 723–24 (2014); Moore v. Texas, 137 S. Ct. 1039, 1053 (2017).

[31] Moore, 137 S. Ct. at 1053.

[32] Id.; Atkins, 536 U.S. at 318; Hall, 572 U.S. at 723.

[33] American Psychiatric Ass’n, supra note 15, at 31.

[34] Id. at 34–36.

[35] Bethany Young et al., Four Practical and Conceptual Assessment Issues That Evaluators Should Address in Capital Case Mental Retardation Evaluations, 38 Pro. Psych.: Rsch. and Prac. No. 2, 169 (2007).

Most death row prisoners in the United States are locked alone in small cells for 22 to 24 hours a day with little human contact or interaction; reduced or no natural light; and severe constraints on visitation, including the inability to ever touch friends or loved ones . . . The majority of death row prisoners eat alone in their cells, fed on trays inserted through a slot in the door. They also receive the majority of their medical and mental health care through these slots.

American Civil Liberties Union, A Death Before Dying: Solitary Confinement on Death Row, 2-3 (2013), https://www.aclu.org/sites/default/files/field_document/deathbeforedying-report.pdf.

[36] Hill v. Shoop, 11 F.4th 373, 392 (6th Cir. 2021).

[37] Id. at 382, n.2.

[38] Id. at 436–37.

[39] Id. at 395.

[40] Id. at 399–400 (Moore, J., dissenting). The clinical evaluation of intellectual disability does not specify an IQ score range to make an intellectual disability diagnosis. American Psychiatric Ass’n, supra note 15, at 37. Further, the assessment must be within the developmental period, not a specified age. Id. at 33. However, the diagnostic criteria in 2002 were different. American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Danny met those criteria as well. See Appellee’s Brief in Opposition to Petition for Writ of Certiorari at 4-10, Shoop v. Hill, 139 S. Ct. 504 (2019) (No. 18-56).

[41] State v. Hill, Case Nos. 3720/3745, 1989 Ohio App. LEXIS 4462, at *88 (Ct. App. Nov. 27, 1989); State v. Hill, 64 Ohio St. 3d 313, 335 (1992); Hill v. Anderson, 881 F.3d 483, 493–94 (6th Cir. 2018); Hill, 11 F.4th at 399–400 (Moore, J., dissenting).

[42] Hill, 11 F.4th at 401–02 (Moore, J., dissenting).

[43] Id. at 400.

[44] The Sixth Circuit is not alone in their flagrant disregard for Eighth Amendment jurisprudence and evolving standards of decency. On November 1, 2021, the Supreme Court denied Wesley Coonce Jr.’s writ of certiorari appealing his death sentence on the basis of his cognitive impairment. Coonce v. United States, 142 S. Ct. 25, 25 (2021). Wesley was never permitted an Atkins hearing, and his death sentence stands. Id. at 25–26 (Sotomayor, J., dissenting). The Government does not dispute Wesley’s cognitive limitations and “urge[d]” the Court to grant certiorari. Id. at 26.

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