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.

In 1998, Green confessed to the deadly shooting of 53-year-old Patricia Vaughan, the co-owner of a convenience store that she ran with her husband, Lawrence. Green's nephew cleared the store of $9,000 while his uncle stood watch. (He pleaded guilty and was sentenced to 23 years in prison.) Lawrence Vaughan, who was shot during the robbery and testified during the trial, watched 10 years later -- along with his two daughters, his son-in-law and his second wife -- as the state of Virginia executed Green. A clemency appeal to Gov. Tim Kaine -- a Catholic and self-proclaimed death penalty opponent -- was denied, with the governor releasing a statement saying he could "find no compelling reason" to intervene. And the Supreme Court denied Green a stay of execution, despite its earlier ruling on mental retardation. (Justices John Paul Stevens and Ruth Bader Ginsburg dissented.)

Green was the third prisoner to be executed since the Supreme Court upheld lethal injection in Baze v. Reese in April, ending a seven-month de facto moratorium on state-sanctioned killing. Before him, death row prisoner Earl Berry was executed in Mississippi. He, too, was mentally challenged -- "The doctor said he had the skill of a 7-year-old," his mother told the Northeast Mississippi Daily Journal -- and he, too, confessed to killing a woman.

"Some people are lucky, and others are not"

Executions may have only just started up again, but two out of three is an alarming statistic -- especially six years after the Supreme Court's Atkins ruling. It's impossible to know exactly how many mentally challenged prisoners have been put to death in the United States in all, but between 1976, when the death penalty was reinstated, and Atkins, the number was at least 44, according to one recent study. Post-Atkins, many states that had not previously outlawed executing mentally retarded prisoners passed legislation to adapt to the ruling, but, alarmingly, those that execute the most people seem to have been slow in implementing them. In 2003, the Houston Chronicle reported that the state of Texas did not know how many of its 449 death row prisoners suffered mental disabilities. Moreover, reported the Death Penalty Information Center, one year after Atkins, there were "no safeguards to ensure that those affected by the ruling are not put to death." "People facing the death penalty here are dependent on the good will of their lawyers," Texas defense attorney Dick Burr told the Chronicle. "It means that some people are lucky, and others are not."

Virginia, which ranks second only to Texas in the number of executions it has carried out since 1976, passed legislation in 2003 to provide assessment of indigent defendants' mental capacity in a capital case. In email correspondence, Michele J. Brace of Virginia's Capital Representation Resource Center explained that "Kevin Green was tried before the decision in Atkins, and before (this legislation) was in place." "After the Atkins decision, he presented a mental retardation claim to the state court, but because his trial was over, state law did not guarantee him the assistance of an expert or the opportunity to present his mental retardation claim to a jury."

There appears to be no effort to make Virginia's legislation retroactive. "For people who were tried before Atkins, the state court has the option of providing equivalent resources," Brace said, "but this is discretionary."

Virginia is scheduled to carry out its 100th execution on June 10 -- one of 18 executions scheduled so far this summer across the country. In its haste to start killing its prisoners again, the state -- and the rest of the country -- would do well to pause and consider whether it is really executing the "worst of the worst," whether the death penalty can ever fit within society's supposed evolving standards of decency, or whether, as Justice William Brennan wrote in 1989, "the execution of mentally retarded individuals ... is nothing more than the purposeless and needless imposition of pain and suffering."


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