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When the California Supreme Court unanimously ruled to overturn the death sentence of Robert Lewis Jr. late last month finding “substantial evidence” that he is intellectually disabled, it “set a strong precedent on Atkins law,” Lewis’s attorney, Robert M. Sanger, says.

In Atkins v. Virginia (2002), the U.S. Supreme Court ruled that executing the intellectually disabled constitutes cruel and unusual punishment under the Eighth Amendment. However, the decision left it up to the states to define intellectual disability. But this ruling “makes it very clear that prosecutors aren’t going to use artificial means to prevent someone from qualifying as intellectually disabled. Courts will require a proper clinical approach based on evolving standards, as people learn more about [intellectual disability],” Sanger says.

In addition, Sanger (who is a DPF board member) says the decision was a significant rejection of “ethnic adjustment,” a practice about which he has written extensively. Statistically, some groups, if singled out, tend to have mean scores on IQ tests that differ from the overall mean. In the testimony of one of the prosecution experts, ”Blacks ordinarily perform more poorly than whites” on IQ tests. He and prosecutors want to attribute that to testing biases and behavioral factors that cause minority test-takers to underperform. Thus, they say, . . . minority IQ scores should be increased to control for these biases and behavioral factors.” Sanger contends, “That is wrong on several levels.”

In an American University Law Review article, “IQ, Intelligence Testing, ‘Ethnic Adjustments’ and Atkins,” he explored how prosecution expert witnesses testify to ethnic adjustment in death penalty cases to artificially raise minority defendants’ IQ scores. These witnesses add five to 15 points to the IQ score of people of color, disqualifying them from protection by the Atkins and Hall v. Florida (2014) decisions prohibiting the execution of the intellectually disabled, and making them eligible for death.

But with the Lewis decision, Sanger says a new — clinical and based on current science — standard has been set. “[The justices] agreed there wasn’t sufficient evidence to support an adjustment based on race or socioeconomic status. The overall picture was that they were blowing the cobwebs out of some of the crevices of Atkins where some of the DAs were attempting to make their nests,” he says.

Lewis’s IQ was measured at 70 (100 is considered normal), and he is functionally illiterate. He was sentenced to death for the 1983 murder of Milton Estell in Long Beach.

The ruling means the 65-year-old Lewis, who has been on death row for 34 years, will be resentenced to life without the possiblity of parole. Sanger, who has worked on the case for 24 years, said he “thought we had a shot at a new trial on the guilt phase, but that ship sailed years ago. I was just fighting to save his life.”

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