Hastings Law Journal Volume 59 | Issue 5 Article 9 1-2008 Conceptual Hurdles to the Application of Atkins v. Virgina Lois A. Weithorn Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Lois A. Weithorn, Conceptual Hurdles to the Application of Atkins v. Virgina, 59 Hastings L.J. 1203 (2008). Available at: https://repository.uchastings.edu/hastings_law_journal/vol59/iss5/9 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact
[email protected]. Conceptual Hurdles to the Application of Atkins v. Virginia Lois A. WEITHORN* INTRODUCTION In its 2002 decision, Atkins v. Virginia, the United States Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment precludes the execution of "mentally retarded offender[s]."' Writing for a six-member majority, Justice Stevens concluded that social attitudes and legal trends had shifted sufficiently in the thirteen years since the Court upheld such executions in Penry v. Lynaugh2 to justify a reversal of Penry.3 Indeed, according to Justice Stevens, during this interval, a social consensus had emerged favoring an absolute ban on the imposition of the death penalty on "a mentally retarded criminal."4 To reach this decision, the Court applied the standard set forth