Mental Retardation

NEW STATEMENTS: The Death Penalty Is Incompatible with Human Dignity

On July 19 Prof. Charles Ogletree of Harvard University Law School wrote in the Washington Post about the future of the death penalty in the U.S. Noting that the U.S. Supreme Court recently affirmed (Hall v. Florida) that executing defendants with intellectual disabilities serves “no legitimate penological purpose,” Prof. Ogletree said this reasoning could be applied to the whole death penalty: "The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows." He cited a study published in the Hastings Law Journal that found that "the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits," such as mental illness, youthful brain development, or abuse during childhood. He concluded that when you examine capital punishment more closely, "what you find is that the practice of the death penalty and the commitment to human dignity are not compatible." Read the op-ed below.

ARBITRARINESS: Almost All Recently Executed Inmates Possessed Qualities Similar to Those Spared

Some defendants who commit murder are automatically excluded from the death penalty in the U.S., such as juveniles and the intellectually disabled. Others with similar deficits are regularly executed. A new study by Robert Smith (l.), Sophie Cull, and Zoe Robinson examined the mitigating evidence present in 100 recent cases resulting in execution, testing whether the offenders possessed qualities similar to those spared from execution. The authors found that "Nearly nine of every ten executed offenders possessed an intellectual impairment, had not yet reached their twenty-first birthday, suffered from a severe mental illness, or endured marked childhood trauma." In particular, "One-third of the last hundred executed offenders were burdened by intellectual disability, borderline intellectual functioning, or traumatic brain injury;" "More than one-third of executed offenders committed a capital crime before turning twenty-five—the age at which the brain fully matures;" and "Over half of the last one hundred executed offenders had been diagnosed with or displayed symptoms of a severe mental illness."

Georgia Supreme Court Upholds Lethal Injection Secrecy

In a 5-2 ruling issued on May 19, the Georgia Supreme Court upheld the state's law that hides the source and the identity of the preparer of drugs and equipment used in executions. The court said, “We conclude that Georgia’s execution process is likely made more timely and orderly by the execution-participant confidentiality statute...." The ruling lifted the stay of execution that was in place for Warren Hill, whose lawyers challenged the law. In a dissent, Justice Robert Benham referenced the recent botched execution in Oklahoma, writing, “I fear this state is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma." Hill's lawyer, Brian Kammer, said the decision, “effectively affords the State of Georgia carte blanche to alter their lethal injection protocol in any way it sees fit, and to conceal from the public and even the courts the identity and provenance of the chemicals it intends to use to carry out executions.” A similar secrecy law in Missouri is being challenged by five news organizations, who say the law violates the First Amendment.

Supreme Court Strikes Down Florida's Strict IQ Cutoff for Death Penalty

On May 27, the U.S. Supreme Court held in Hall v. Florida that Florida's strict IQ cutoff for determining intellectual disability in capital cases is unconstitutional. The Court concluded, "Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world." In 2002, the Court banned the execution of people with "mental retardation," but allowed states leeway in selecting a process for determining who would qualify for that exemption. According to Florida's Supreme Court, defendants with an IQ even one point above 70 cannot be considered intellectually disabled, even though most states allow for a margin of error in such tests. The Supreme Court's ruling stated that Florida's strict rule "disregards established medical practice" and noted that the "vast majority of states" rejected such a narrow interpretation of IQ scores. The Court held that, "When a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Hall will receive a new hearing on his intellectual disability claim.

Texas Execution Stayed Over Intellectual Disability Claim

The U.S. Court of Appeals for the Fifth Circuit stayed the execution of Robert Campbell just hours before he was scheduled to be executed in Texas on May 13, granting him permission to file a new petition on his claim of mental retardation. If Campbell is intellectually disabled, he is barred from execution by the Supreme Court's 2002 ruling in Atkins v. Virginia. The unanimous three-judge panel noted that Texas authorities had withheld IQ test results from Campbell and misled his attorneys: "Throughout this litigation in the state and federal courts regarding Campbell’s ability to assert an Atkins claim on the merits, the State never disclosed that it was in possession of evidence of three intelligence tests suggesting that Campbell was intellectually disabled." State files contained the results of IQ tests including one from Campbell's childhood, with a score of 68, and one from shortly after his arrival on death row at age 19, with a score of 71. Robert Owen, an attorney for Campbell, said, "It’s very clear now that the evidence strongly supports the diagnosis of mental retardation for Mr. Campbell, and it might be best for everyone for the state to give up its pursuit of executing him and resolve this case by reducing his death sentence to life imprisonment rather than face the prospect of months or years of further litigation."

REPRESENTATION: Georgia Inmate With Drunk Lawyer Facing Execution

The Georgia Board of Pardons and Paroles will soon consider the clemency petition of Robert Holsey describing a near complete failure in the judicial process that sent him to death row in 1997. As Marc Bookman described in the latest edition of Mother Jones, Holsey was assigned a lawyer, Andy Prince, who consumed a quart of vodka every night of the trial. While preparing Holsey's case, he was arrested in an incident after pointing a gun at a black neighbor and using a racial slur. Despite charges of assault, disorderly conduct, and public drunkenness stemming from the racially-charged crime, he was allowed to stay on as defense attorney for a black defendant facing charges of murdering a white police officer. Prince failed to communicate with his co-counsel, Brenda Trammell, who had never tried a capital case, leaving her to perform a complex cross-examination with little time to prepare. She also gave the case's closing argument after almost no notice. Prince failed to present mitigating evidence regarding Holsey's intellectual disabilities and the severe abuse he suffered as a child. A juror from Holsey's trial later said in an affidavit that he would have spared Holsey's life had he heard such evidence. However, state and federal appeals courts have held that, even without the failings of the defense team, the outcome would probably have been the same.

Supreme Court to Examine Florida's Narrow Standard for Mental Retardation

On March 3, the U.S. Supreme Court will hear oral arguments in Hall v. Florida, a case addressing the strict standard for intellectual disability that Florida uses to determine if inmates are exempt from execution. Under the Court's 2002 decision in Atkins v. Virginia, individuals with intellectual disabilities (mental retardation) are constitutionally barred from receiving the death penalty. The decision "le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction," resulting in various standards for determining intellectual disabilities across the states. Unlike almost all other states, Florida rigidly requires an IQ of 70 or below to demonstrate mental retardation, with no allowance for the test's margin of error. Freddie Hall, the death-row petitioner in this case, was first diagnosed with intellecutal disabilities in elementary school. Prior to the Atkins, a Florida court determined that “Freddie Lee Hall has been mentally retarded his entire life.” Despite these findings, Hall is still facing execution. Cornell Law Professor John Blume said, while the issue is limited, the case is important, "to make clear that states cannot narrow a categorical ban created by the Supreme Court intended to protect a vulnerable group from wrongful execution."

Upcoming Death Penalty Events in 2014

As the new year begins, there are several notable events related to the death penalty likely to occur in the next few months. The first execution of the year is scheduled for January 7 in Florida. The execution of Askari Muhammad had originally been scheduled for December 3, 2013, but was stayed due to a challenge to the state's new execution protocol. The Florida Supreme Court approved the new protocol, and the execution was rescheduled, though legal challenges are continuing in federal court. Ohio has scheduled the execution of Dennis McGuire for January 16, and the state plans to use a lethal injection protocol never tried before in any state. Ohio will use midazolam and hydromorphone, drugs formerly listed in the state's backup procedure. This latest change in Ohio was caused by a shortage of the drug pentobarbital, after restrictions on its use were imposed by its European manufacturer. On January 22, Texas is scheduled to execute Edgar Tamayo, a Mexican citizen who was denied consular access at the time of his arrest, in violation of the Vienna Convention on Consular Relations. Objections to the execution have been raised by U.S. Secretary of State John Kerry and by numerous other governments. On March 3, the U.S. Supreme Court will hear oral arguments in Hall v. Florida, a challenge to Florida's strict procedure for determining intellectual disability in capital cases. The Court previously ruled that intellectually disabled defendants are barred from execution.

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