Tuesday, February 10, 2004

Executing the Retarded

It looks like Texas is finally starting to have real trouble with Atkins v. Virginia.

I personally think that Atkins is a flawed decision, because it prevents an individualized determination of whether the death penalty is an appropriate punishment by excluding, en masse, an entire class of defendants (the same goes for Thompson‘s prohibition on executing those under 16, IMHO).  The logic is flawed, in that it presumes a retarded defendant (or one under 16 at the time of the offense) can

never

have sufficient culpability.

An example:

...Robert Smith, received a death sentence for the 1990 murder of James Michael Wilcox, whom he shot while fleeing after a clothing store robbery in Houston.

After the Atkins ruling, Mr. Easterling hired a psychologist to evaluate Mr. Smith, and the Harris County District Attorney’s office did the same. Both psychologists reached the same conclusion: that Smith - who has an IQ of 63 and reads at a third-grade level - was mentally retarded.

...even though he recommended commutation to the state Board of Pardons and Paroles, Harris County District Attorney Chuck Rosenthal says he considers Smith’s a “borderline” case.

“I didn’t have any choice in recommending commutation since my own expert found him mentally retarded. But here’s a guy who was shrewd enough to use aliases, who drove a car, and did a lot of things mentally retarded people don’t normally do,” says Mr. Rosenthal.

 

Exactly.

In practice the biggest problem with Atkins is how to define retarded.  For those who are borderline (i.e. those who are able to function “normally” in society, or close to it), how do you make that determination?  Science has not evolved to the point where we can accurately define the bounds of the class.  Could the definition of “retarded” balloon in the same way the definition for “disabled” did after the ADA was passed?

And the result on the criminal process?

For his part, Rosenthal - sporting black cowboy boots and a white mustache - says defense attorneys are raising the issue of mental retardation in every case now.

“I think Atkins is a flawed decision and really doesn’t give much guidance as to what to do,” he says. “And since the legislature won’t give us [a definition of mental retardation], we just to have to fly by the seat of our pants.”

 

I think this quote is telling:

BUT since the Supreme Court’s decision, the state Court of Criminal Appeals has ruled that almost 30 Texas death-row inmates are entitled to hearings on whether they meet the standards set down in Atkins.

 

Outbreak of retardation reported in Huntsville.  Film at 11.

(1) Comments
Posted by Jed at 2029 hrs
Law

  1. “I don’t think there has been a massive acknowledgement that we’ve been putting the severely retarded on death row, but I do believe prosecutors have become more discriminating - in the good sense of that word - of whom they put on death row,” says Joshua Marquis, on the board of the National District Attorney’s Association.

    A little bit off topic - but I find it incredibly amusing that people are so obsessed with the PC definition of the word “discrimination” that they can’t even use it properly without clarifying it first.

    Posted by .(JavaScript must be enabled to view this email address) on February 11, 2004 at 0831 hrs


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