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On June 20, 2002, the US Supreme Court issued a landmark ruling ending the execution of those with intellectual disability. In Atkins v. Virginia, the Court held that it is a violation of the Eighth Amendment ban on cruel unusual punishment to execute death row inmates with "mental retardation". The decision reflected the national consensus on this issue. In 1989, the U.S. Supreme Court had upheld (5-4) the constitutionality of executing those with intellectual disability in Penry v. Lynaugh, however the Court said "mental retardation" should be a mitigating factor to be considered by the jury during sentencing. Writing for the majority, Justice Sandra Day O'Connor said that a "national consensus" had not developed against executing those with "mental retardation."

In 1989, only two states, Maryland and Georgia, prohibited such executions. Between the Penry and Atkins decisions, 16 additional states enacted laws prohibiting the execution of the "mentally retarded." The federal death penalty statute also forbids such executions. Prior to Atkins v. Virginia, eighteen states plus the federal government did not allow the execution of those with "mental retardation": AZ, AR, CO, CT, FL, GA, IN, KS, KY, MD, MO, NE, NM, NY*, NC, SD, TN, WA, and U.S. (*except for murder by a prisoner). Juvenile cases can arise from shoplifting, disorderly conduct, or any other act by a child with a learning disability that has manifested into behavior not resolved through the child's specially designed instruction. Although the public school and the IEP process should have addressed these behaviors, there are many cases of failure by the school to succeed in eliminating all such behaviors, and these children can then get into trouble with our criminal and/or juvenile courts. While the act of taking another's life may be obvious as being wrong to us all, a child with a learning difference has perceptual and cognitive developmental delays that can impact upon their understanding. People with learning differences are at a higher risk of wrongful convictions and death sentences.  They may be more likely to falsely confess to a crime because they want to please the authorities that are investigating the crime. They are less able than others to work with their lawyers to help to prepare their defense. Because of the stigma attached to being disabled, people with this disability often become adept at hiding it, whereas the importance of this information is critical to the outcome of the case.  

State legislatures and police departments across the country are working to bring laws and training into compliance with the Atkins decision, crafting definitions and developing processes to determine whether an accused is mentally challenged. The training police are now receiving in being able to identify whether a person has autism, aspergers, touretts syndrome, or many other learning differences is helpful to improving our criminal justice system.