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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