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39 Hastings Const. L.Q. [i] (2011-2012)

handle is hein.journals/hascq39 and id is 1 raw text is: HASTINGS CONSTITUTIONAL LAW QUARTERLY VOLUME 39 FALL 2011 NUMBER 1 Table of Contents ARTICLES A DIFFERENT PATH TAKEN: TEXAS CAPITAL OFFENDERS' POST-A TKINS CLAIMS OF MENTAL RETARDATION by Peggy M. Tobolowsky....................................... 1 In 2002, in Atkins v. Virginia, the United States Supreme Court held that the execution of mentally retarded offenders is unconstitutional, and entrusted the enforcement of this constitutional ban to the states. In the absence of legislative action in Texas, the Texas Court of Criminal Appeals has established substantive and procedural standards to resolve Texas offenders' Atkins claims of mental retardation for offenders seeking state post-conviction relief. This Texas appellate court has also specified most of the standards to resolve Atkins claims at the trial court level and on direct appeal. The United States Court of Appeals for the Fifth Circuit has prescribed procedures for Texas capital offenders pursuing Atkins claims through federal collateral review, and has generally endorsed the Texas Atkins standards it has addressed. Since the Atkins ruling, ninety Texas capital offenders have had their Atkins claims resolved at the trial, appellate, or post-conviction levels-a volume of Atkins claimants that far exceeds that of any other capital punishment state. Texas Atkins claimants, however, have been meaningfully less successful than expert estimates of mental retardation among capital offenders would predict and than national estimates of success regarding Atkins claims have indicated. This Article examines the evolution of the Texas Atkins standards and their application to these ninety capital offenders. The Article then compares the implementation of Atkins in Texas to its implementation in other states, and addresses issues concerning Texas's compliance with the Atkins mandate to identify mentally retarded offenders and exclude them from execution. The Article concludes with a discussion of potential responsive action concerning Texas's Atkins implementation by the United States Supreme Court.

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