America's Cruel and Unusual Culture: Why Do We Execute the Mentally Handicapped?

"We just executed a man with the IQ of an 11-year-old child," Virginia defense attorney Timothy M. Richardson announced to reporters after the death of his client at the Greensville Correctional Center in Jarratt, Va. At 10 p.m. on May 27, state executioners killed 31-year old Kevin Green, who confessed to the murder of a convenience store owner during a robbery in 1998. Green was sent to death row and kept there for 10 years, despite having an IQ of 65, which qualified him as mentally retarded.

Many Americans assume that executing mentally disabled prisoners is a thing of the past. In a landmark ruling involving another Virginia prisoner, Daryl Renard Atkins, in 2002, the U.S. Supreme Court decided that executing the mentally retarded was tantamount to "cruel and unusual punishment." "It is fair to say that a national consensus has developed against it," Justice John Paul Stevens wrote in Atkins v. Virginia, citing the growing number of states that had outlawed it.

The ruling followed years of executions -- some high-profile -- of mentally challenged defendants, including the controversial death of Ricky Ray Rector, the lobotomized Arkansas death row prisoner who then-presidential candidate Bill Clinton stopped to see killed while on the campaign trail in 1992. There was also the case of Mario Marquez, a mentally disabled Texas death row prisoner who had been abused as a child before being abandoned by his parents at age 12. No discussion of his mental retardation or years of abuse entered the courtroom before he was sentenced to die. But his post-conviction attorney would later describe how Marquez "was never able to discuss the specifics of his legal case, but instead we talked a lot about his favorite animals, things he liked to draw, and how he missed being able to see his brothers and sisters." Marquez was executed on the day of Gov. George W. Bush's inauguration, in 1995.

And then there was the case of Earl Washington, a mentally disabled Virginia man who was exonerated in 2000 after having falsely confessed to a rape and murder committed in 1982. "The confession proved to be the prosecution's only evidence linking Washington to the crime," reported the Innocence Project, and "psychological analysis of Washington reported that, to compensate for his disability, Washington would politely defer to any authority figure with whom he came into contact. Thus, when police officers asked Washington leading questions in order to obtain a confession, he complied and offered affirmative responses in order to gain their approval."

Nobody disputed the guilt of Kevin Green. But Washington's confession put him in the company of many disabled prisoners whose mental pliability makes them especially vulnerable to false confessions -- one of the leading contributions to wrongful conviction.

The Atkins decision was a critical development in death penalty jurisprudence, in keeping with a trend the court likes to call our country's "evolving standards of decency." But when it came to enforcement, the court's 6-to-3 ruling contained what has proved to be a fatal flaw: It left it up to the states to define mental retardation, providing no standard measure for determining a defendant's mental capacity, thus rendering the law hopelessly elastic. The result: Prisoners with severe mental disabilities continue to face execution across the country.

Who is mentally impaired?

Common psychiatric consensus deems anything below an IQ of 70 as signaling mental retardation. According to the guidelines of the American Psychiatric Association, 71-84 shows "borderline intellectual functioning"; anything less ranges from mild, to moderate, to severe, to "profound" mental retardation. Atkins and Green both fell under the "mild" category: Atkins, with an IQ of 59, had never lived on his own or held a job (proof, according to the prosecution, that he was simply shiftless and "not motivated to succeed.") Green, meanwhile, never finished middle school and suffered from "language deficiencies," according to one report, as well as "the inability to write and to care for himself, and difficulty with simple tasks like tying his shoes or making Kool-Aid." Crucially, however, he was capable of getting a job doing physical labor. And as prosecutors would emphasize, with the help of his 16-year old nephew, he was also capable of carrying out a murder.