Over Easy: When does a mentally retarded person stop being retarded? When the state decides to execute him.
Last night, Georgia executed Warren Hill, a man with intellectual disabilities (formerly called mental retardation). In 2002, the United States Supreme Court banned executions for people with intellectual disabilities with its ruling in Atkins v Virginia. However, the ruling left it up to the states to decide what, exactly, that means. In Georgia, one must prove intellectual disability “beyond a reasonable doubt.” Since no one can ever meet that strict rule, even people who have an IQ of 70 or below and are found to be disabled by a preponderance of the evidence are eligible for the death penalty. Georgia will continue to execute adults with the intellectual capacity of children.
Georgia is not alone. Robert Ladd is scheduled to be executed in Texas on January 29, despite having an IQ of 67. In 2012, Texas executed a man with an IQ of 61 who sucked his thumb, ignoring evaluations of professionals and instead creating its own unique evidence-free criteria based largely upon stereotypes. For example, since (according to the logic of Texas courts) a person with an intellectual disability cannot possibly be married and have a child- if they do- that voids the results of an evaluation and makes them a good candidate for execution. Indeed, Texas uses “Briseño factors,” that rely on laypersons’ observations rather than science, to un-impair a person who has been diagnosed as impaired.
In short, mentally impaired individuals who would otherwise be spared in other states are not impaired in Texas and Georgia, where the evolving standards of decency mentioned in discussions about the Eighth Amendment don’t apply.
In other news, Texas also executed an innocent man based on eyewitness testimony, a man with the same first name and similar appearance to the real perpetrator- the case of the “wrong Carlos.” In a recent lecture at the University of Florida, retired Supreme Court Justice John Paul Stevens said:
“Within the last year, Jim Liebman, who’s a professor at the Columbia Law School and was a former law clerk of mine, has written a book…called The Wrong Carlos…He has demonstrated, I think, beyond a shadow of a doubt that there is a Texas case in which they executed the wrong defendant, and that the person they executed did not in fact commit the crime for which he was punished. And I think it’s a sufficient argument against the death penalty…that society should not take the risk that that might happen again, because it’s intolerable to think that our government, for really not very powerful reasons, runs the risk of executing innocent people.”