LA Weekly
February 15
Indecent
Executions - Considering death row's mentally retarded inmates
By
Sara Catania
Much
has been made of the 99 death-row inmates who have been freed across the
U.S. over the past quarter-century when they turned out to be innocent. Now
executions are being reconsidered on another front, one that could spare
the lives � though not the lifelong prison sentences � of as many as
370 inmates nationwide.
On
February 20 the U.S. Supreme Court is
scheduled to hear arguments on whether mentally retarded inmates convicted
of capital crimes should be subject to execution. The court�s decision
will revolve around the case of Daryl Atkins, at the time of the crime an
18-year-old killer with an IQ of 52. This will be the first opportunity for
the justices to make a major change to death-penalty law in more than a
decade. In 1989, when the court last took up the constitutionality of the
death penalty � on this same question � the execution of the mentally
retarded was legal in all but two death-penalty states. The justices voted
5-4 against making the ban nationwide. Writing for the majority, Sandra Day
O�Connor, long considered solidly pro�death penalty, voiced the
court�s unwillingness to get ahead of the state legislatures, saying that
such a ban did not yet seem to reflect the nation�s �evolving standards
of decency.�
What
a difference a decade makes. Now the federal government and fully half of
the 38 states with the death penalty prohibit state-sanctioned killing of
the mentally retarded, including execution-prone Missouri, Florida, Georgia
and Arkansas. In most cases inmates with mental retardation convicted of
death-penalty-eligible crimes in those states are sentenced to life in
prison without parole. California has no such law and is joined by Texas,
Oklahoma and a shrinking pool of other states, as well as such bastions of
human rights as Libya, Saudi Arabia, Iran and China in permitting
executions of the mentally retarded.
The
most recent defector from the kill-�em-all camp is Virginia, where a ban
unanimously passed by that state�s Senate last week is also likely to be
passed by Virginia�s House of Delegates and signed by the governor this
spring. The Virginia statute, if signed into law, would not go into effect
until mid-2003, allowing the court ample time to render a decision in the
Atkins case. �The fact that states are passing these laws does indicate
an evolving standard of decency,� said attorney Stephen Bright, director
of the Southern Center for Human Rights, located in Georgia, which
represents indigent death-row inmates. �I don�t think that most states
and governors have much of an appetite for executing mentally retarded
people.�
Justice
O�Connor herself last summer expressed �serious doubts� to a group of
Minneapolis lawyers that the death penalty is being fairly applied. The
high court had planned around that time to hear a North Carolina case to
decide whether mentally retarded people should be executed, but dropped the
matter when the state enacted a ban on the practice. Almost immediately the
court agreed to hear the Atkins case.
Mental
retardation, as defined by the American Association for the Mentally
Retarded (AAMR), consists of three factors: a significantly sub-average IQ,
generally below 75 (average IQ is about 100); a limited ability to perform
some normal adult functions such as work, independent living and self-care;
and presence of the disability before age 18. Atkins� 59 IQ puts him in
the bottom 1 or 2 percent of the population in terms of intelligence.
�Under our Constitution, only people who are the most blameworthy of all
can be executed,� said Ruth Luckasson, president-elect of the AAMR and a
special-education professor at the University of New Mexico. �How can the
lowest 2 percent of the population in terms of intelligence be among the
highest 2 percent of the population in terms of blameworthiness?� It is
not clear exactly how many death-row inmates are mentally retarded, because
no statistics are kept, but studies cited by Luckasson�s organization
estimate that anywhere from 4 percent to 10 percent of all prison inmates
are mentally retarded. There are about 3,700 inmates on death row
nationwide.
Indeed,
even though most Americans favor the death penalty (in 2001 there were 98
executions, the most in any single year since 1951), that support
evaporates on the question of executing people with mental retardation. A
national Harris poll dating back to 1988 found 70 percent of Americans
opposed to such executions. And polls taken in several states in recent
years have shown overwhelming opposition to execution of the mentally
retarded.
Such
a clear consensus has emboldened even staunch death-penalty supporters to
join the opposition on this issue. In Virginia, the recently passed bill on
banning the execution of the mentally retarded was sponsored by state
Senator John S. Edwards (D-Roanoke), a former U.S. Marine Corps JAG officer
and federal prosecutor who has lost track of the number of bills he�s
favored over the years broadening the application of the death penalty in
his home state. The ban on executing the mentally retarded marked the first
time Edwards has supported a bill to curb the death penalty, let alone
sponsoring it himself. �We need to put some bright lines on the death
penalty, when it applies, when it doesn�t,� he said. �We don�t
execute 6-year-olds. Why would we execute someone with the mind of a
6-year-old?�
Still,
some death-penalty supporters dismiss the proposed ban as a desperate
tactic of defendants with no other appeals. Michael Rushford, president of
the Criminal Justice Legal Foundation, a pro-death-penalty advocacy
organization based in Sacramento, said he is opposed to execution of the
mentally retarded. But, he said, �We are curing a problem that doesn�t
exist.� Echoing an argument made by the governor of Texas last year when
he vetoed a legislative ban on execution of the retarded, Rushford said the
courts screen out people with mental retardation long before trial and that
no one with mental retardation has ever been executed in the United States.
�We haven�t gotten there yet,� he said. �If we had, it would be on
the front page of The New York Times � the picture of the guy drooling.�
Luckasson
bristled at such a characterization. �Mental retardation is not defined
by saliva,� she said. Her organization has identified at least 35 people
with mental retardation who have been executed in the United States since
1976, including the now-infamous case of Ricky Ray Rector, the Arkansas
inmate who, on the way to his death, asked to have his pie saved so he
could eat it later. �Most people have a pretty good sense of what mental
retardation is,� Luckasson said. �And most people do not think people
with mental retardation should be executed.�
Tell
that to the California state Legislature. California�s death row is by
far the nation�s largest, home to nearly one in six of all condemned
inmates nationwide, but state pols are so fearful of a constituent backlash
that a bill proposed by Assemblywoman Dion Aroner (D-Berkeley) last year
banning execution of the mentally retarded could not even make it out of
committee.
Hans
Hemann, Aroner�s legislative director, ascribes this reticence to several
factors. The Legislature seems to be suffering a lingering hangover from
the Rose Bird era, when the California Supreme Court justice presided over
a panel that reversed dozens of death-row convictions, only to be run out
by voters. And, unlike most states, California�s death-row law was not
enacted by the Legislature, but passed by a voter initiative. So any change
would have to be made at the ballot box. �Any opposition to the death
penalty whatsoever is going to be painted by your opponents as soft on
crime,� Hemann said. �If I�m Joe Blow, a moderate Democrat, I don�t
want to be running for re-election when an ad comes out saying I supported
this so-called soft-on-crime initiative.�
And
finally, none of the 10 inmates put to death in California since the state
resumed executions after a 25-year hiatus has been clearly mentally
retarded. �Because we have been slower in executing people in California,
we haven�t had it in our face yet,� said Wendy Peoples, co-chair of the
death-penalty committee of California Attorneys for Criminal Justice.
�Sooner or later we will be forced to confront it.� Unless, that is,
the Supreme Court beats us to it.
Sara
Catania has been selected for a 2002 Crime and Communities Media Fellowship
with the Open Society Institute, a New York�based nonprofit dedicated to
reforming the criminal-justice system. This story is one in a yearlong
series of articles on death row funded in part by the fellowship.
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