Executing the Feebleminded

Article excerpt

Consider these facts: A man, drunk and high on drugs, goes to a store to buy beer. Not having enough money, he panhandles in the parking lot. He stops a 21-year-old man coming to the store and asks for money. The customer declines. The panhandler then robs him at gunpoint, abducts him, and takes him to a field, where he shoots him eight times, perforating both lungs and the victim's heart.

None of the shots, however, was immediately fatal. The victim may well have survived several minutes before dying from internal bleeding. He was also beaten on his body and head.

A Virginia jury found the defendant guilty of capital murder and robbery, and sentenced him to death.

To many, the death penalty should be banned outright. But in 1976, the Supreme Court upheld its constitutionality. So, assuming the death penalty is legal, was it fair in this case?

Now add the actual fact that the panhandler, Daryl Renard Atkins, has an IQ of 59--the mental age of a child between 9 and 12 years of age. Mental retardation is officially defined as an IQ of 70 or less. Knowing this, is the death penalty fair?

In 1989, the Supreme Court, in a 5--4 decision, upheld the death penalty of mentally retarded defendants. The Court noted that "there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment." Thus, the Court went on, "the imposition of the death penalty on a mentally retarded defendant with the approximate reasoning capacity of a seven-year-old child does not violate the Eighth Amendment prohibition against cruel and unusual punishment solely because of the defendant's mental retardation."

In 1989, only Georgia and Maryland had laws banning the execution of mentally retarded convicts--hardly a national consensus. Today, the number has grown to 13 states, plus the District of Columbia and the federal government. If one adds the states that have banned the death penalty outright, 25 (half the country) now outlaw such executions. Is this a national consensus?

The lawyers for Atkins now argue that it is. Supporting them is the American Bar Association. In its amicus (friend of the court) brief, the ABA, which has no position on the general question of the death penalty, argues forcefully against it in cases of mentally retarded convicts.

The brief opens by saying, "Whatever you think about the death penalty, a system that will take life must first give justice." It then discusses numerous cases in which mentally retarded defendants were erroneously sentenced to death. For example:

* Mentally retarded convict Anthony Porter came within two days of execution, but journalism students pursuing a class project later proved him innocent.

* Earl Washington Jr., severely mentally retarded, confessed in 1983 to a brutal rape and murder. In 2000, after Washington spent 17 years on death row, DNA tests proved he wasn't involved in the crimes, his confession notwithstanding.

Since 1976, 35 mentally retarded convicts have been executed. …