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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