AMERICAN JOURNAL OF FORENSIC PSYCHIATRY, VOLUME 30, ISSUE 2, 2009 / 17 AFTERMATH OF ATKINS: A PERSPECTIVE ON MANAGING THE DEATH PENALTY AND MENTAL RETARDATION CASES Kenneth J. Weiss, M.D. and Clarence Watson, J.D., M.D. Since the United States Supreme Court’s 2002 decision in Atkins v. Vir- ginia, there has been a categorical ban on the application of capital punish- ment to persons with mental retardation. Though the decision was not ambi- guous in its intent, the Court left it to the states to devise legal methods to adjudicate claims. In this review, we outline the procedural and clinical is- sues embedded in states’ responses to Atkins, illustrated by a recent New Jersey case, State v. Jimenez. Each state has a unique procedure for ad- dressing Atkins claims. We conclude that all parties, including potential ex- pert witnesses, must be alert to matters such as definition of mental retarda- tion, the standard and burden of proof, and the timing of the argument. In 2002 the United States Supreme Court ruled in Atkins v. Virginia (1) that there would be a categorical ban on applying capital punishment to per- sons with mental retardation (MR). Daryl Atkins was tried and convicted in the 1996 murder of Eric Nesbitt. The decision was based on the constitu- tion’s Eighth Amendment: “Excessive bail shall not be required, nor exces- sive fines imposed, nor cruel and unusual punishments inflicted.” It was the first time that such a restriction was imposed upon the states in relation to a clinically derived class of individuals. As the Atkins Court explained, “They have different capacities to understand and process information, to commu- nicate, to abstract from mistakes and learn from experience, to engage in log- ical reasoning, to control impulses, and to understand the reactions of oth- ers…They often act on impulse…They are followers rather than lead- ers…Their deficiencies…do diminish their personal culpability” (1, at 318). As early as 1990, state legislatures began to take a categorical approach against applying the death penalty to defendants with MR. The Atkins deci- sion, however, neither defined mental retardation nor prescribed procedures for adjudicating these matters; this was left to the states. At the time of the decision, many states had already abolished the death penalty and others had barred execution of persons with MR (1). Since the decision, several states have enacted statutes or promulgated case law defining procedures governing capital cases with mentally retarded defendants (2). In this review, we will