Abstract

While it is true that in Atkins v. Virginia the United States Supreme Court held that it was unconstitutional to execute the mentally retarded, the Court left it up to the states, both substantively and procedurally, to define and remove the mentally retarded from the pool of death-eligible capital defendants. History teaches us that these procedures and policies will not always remove the mentally retarded from that pool, and that the capital defender is often left defending a death penalty case for a mentally retarded defendant. This article explores the challenges presented in jury selection when that is the case.