William Jefferson Clinton, aka “Slick Willy,” hungered for the White House. But in the early months of 1992, it did not look as though the Arkansas governor's appetite would be satisfied; he had been defeated in the Iowa caucuses and the Massachusetts primary. New Hampshire was crucial, but Willy was trailing Sen. Paul Tsongas badly. Willy needed an issue.
Fate has been remarkably kind to Clinton, and in 1992, the gods handed him just the right opportunity in a year when capital punishment was a hot issue. Ricky Lee Rector, having exhausted all his appeals, was awaiting a lethal injection on Arkansas' death row. Rector had killed two people, one of them a cop, then turned the gun on himself and blown away a substantial chunk of his brain. His lawyers argued that, even though he could speak, he was so intellectually impaired that he did not know what death was and thought the people he killed were still alive. Or as one of his lawyers phrased it, “He is, in the vernacular, a zombie.” The appellate judges rang up a “No Sale.”
Enter Clinton, who astonished the nation by breaking off his New Hampshire campaign to fly back home for the purpose of denying Rector clemency. And in the process, to demonstrate to voters how tough he was on crime. Really tough people must surely have been gratified that Rector lay strapped down on the death gurney for an hour while his executioners probed and jabbed for a vein to inject the deadly three-drug cocktail, until at 10:00 PM they finally got lucky and dispatched Rector, including what was left of his brain, to meet his maker.
Slick Willy began to come up from behind in New Hampshire and, thanks to the way that he and Hilary squirmed out of the Jennifer Flowers affair – he placed a close second behind Tsongas, in the process earning a new name: “The comeback kid.”
As for Rector, his lawyers were proven right all along. Rector presumably enjoyed his last meal – he left his pie for “later” – and entertained himself by watching the news on television. What he saw inspired him to tell his guards that he planned to vote for Clinton.
Federal District Judge Henry Woods turned down a stay of execution for Rector on the grounds that “No one who has considered this claim and applied the prevailing legal standard has concluded that he is incompetent to be executed.”
Among the jurists who defined the prevailing legal standards were the nine brethren of the United States Supreme Court. In 1989, the Supremes upheld the constitutionality of executing the mentally disabled by a vote of 5 to 4. Writing for the majority in Penry v. Lynaugh, Sandra Day O'Connor (who, as a state legislator in Arizona, had conceived a model capital punishment bill that would become the standard for the nation), deemed that a “national consensus” had not emerged for sparing those with “mental retardation.”
Penry did not deter dedicated death penalty lawyers from appealing to the Supreme Court again and again in the ensuing years, until finally – 13 years later – the high court changed its collective mind. In what many attorneys consider a landmark decision, the court held that executing the intellectually disabled violates the Eight Amendment ban on cruel and unusual punishment. However, the ruling, Atkins v. Virginia, came with a catch: the high court did not proffer any definition of what it called “retardation,” leaving this crucial issue up to the states.
Richard C. Dieter JD, executive director of the Death Penalty Information Center, told me that most states have incorporated the diagnostic criteria of the American Association on Intellectual and Developmental Disabilities (AAIDD) into their death penalty statutes. The AAIDD criteria are the most scientifically rigorous guidelines for a diagnosis of intellectual disability, so it would be appropriate to pause here and take a look at them.
The guidelines, which are available for all to read on AAIDD.com, require impairment in two areas of brain functioning. The first is intellectual functioning – learning, reasoning, problem solving, and so forth. The IQ test is one measure of intellectual functioning – but only one. The AAIDD criteria require an IQ of about 70 or below, but it must be buttressed by thorough and skilled interviewing of the patient because the IQ test is an imperfect psychological instrument; the most serious objection, in the view of many psychologists, is that the IQ test has biases that can skew results based on, for example, the race or socioeconomic class of the person being tested. Intensive interviewing is required – by a sensitive psychologist – to put the IQ score in context.
The second area of impairment that must be present pertains to adaptive behaviors, of which the AAIDD recognizes three types:
Conceptual: language and literacy; money, time and number concepts; and self-direction.
Social skills: of which the most important for the present purposes are gullibility, naïveté (i.e., wariness) and the ability to follow rules, obey laws and avoid being victimized.
- Practical skills: personal care, holding a job, safety and related considerations.
Though the various states do pay lip service to the AAIDD guidelines, they take with one hand that which they give with another. As Dieter put it, the law generally does not protect intellectually disabled people. Some states amend the guidelines by jacking the IQ up to 80. Many states put the burden of proof on the defense, which is particularly onerous for indigent defendants. Perhaps the dirtiest trick of all, as Dieter explained, is allowing cases involving intellectually impaired people to go to trial in the first place. Of course, defense lawyers can always try to persuade a judge that an intellectually disabled person is not competent to stand trial, but it's rarely effective, as we shall see.
I spoke with death penalty lawyer Kathryn M. Kase, executive director of the Texas Defender Service, a nonprofit organization that fights capital cases and helps to educate lawyers in defending persons facing the death gurney. Prosecutors, Kase said, try to convince the jury that an intellectually disabled person CHOSE to commit a capital offense. To do so, they try to demonstrate that the defendant is not intellectually disabled at all; to this end, they present evidence that purports to demonstrate that the defendant can carry out complex tasks. Even better, they dig deeply to present a criminal record. Unfortunately, some intellectually disabled defendants will have given the prosecutors the “proof” that they require to obtain a conviction.
Kase observed that some intellectually disabled people have a certain capacity to compensate for their deficits by working very hard at particular tasks. She told me that I probably interact with people like this all the time, without realizing that they actually have intellectual deficits. But skilled prosecution psychologists may well be able to convince a jury that the defendant is able to carry out complex tasks and that he or she is not intellectually disabled at all, when, in reality, the defendant may be seriously impaired in all but a few domains. Just because an intellectually impaired person can change a washer, doesn't mean he or she can navigate a police interrogation or questioning on the witness stand, or grasp the moral issues or finality of taking a life.
As the AAIDD guidelines show, intellectually impaired people sometimes do commit crimes. Usually they are petty offenses like shop lifting, because their impaired adaptive behavior is such that they just don't understand that one must not pick an item off the shelf and drop it in one's pocket without paying for it. Then, too, the gullibility and naïveté of some intellectually impaired people makes them vulnerable to being lured into participating in a crime and left holding the bag. Another consequence of their naïveté is that the cops can easily elicit a confession – even a totally untrue confession.
An alternative strategy that prosecutors may use, instead of trying to demonstrate that an impaired defendant is normal, is to play on prejudices, misconceptions and fears about “retards,” with the goal of trying to convince the jury that the defendant is too dangerous to live. I asked Ruth Luckasson, distinguished professor and chair, Department of Educational Specialties at the University of New Mexico, if intellectually impaired people had poorer impulse control than normal men and women. Her answer was an emphatic, “No.”
Kase takes a more nuanced view. “Think of a sixth grader,” she said. “They're more impulsive because they don't remember the rules.” Failure to remember the rules is, as we have seen, one of the AAIDD criteria for intellectual disability. But murder? “It's common for children to kill. It's easy,” Kase said, “to take another life.”
“Does this make intellectually impaired people more dangerous than people without intellectual disabilities?” I asked.
No, Kase replied, only more vulnerable to be lured into trouble.
I talked with Kase and Lukasson about what constitutes an adequate defense for an intellectually impaired person. They agreed that the defense must present evidence of three sorts:
An IQ test by a skilled examiner is mandatory. The prosecution will conduct its own test and it's not unknown for their experts to adjust the numbers upwards.
Next comes intensive interviewing by a psychologist to develop a picture of the areas where the defendant has intellectual deficits, and to elicit a life history.
Finally, it has proven to be crucial to try to obtain evidence that the defendant suffered from intellectual impairment before the age of 18. The cutoff is arbitrary, but it is generally necessary to convince the jury that a person has been impaired prior to reaching adulthood. Obtaining such evidence can be an onerous task, sometimes requiring the services of a private investigator. The kinds of evidence involved may include school, medical and employment records; interviews with family, friends and neighbors – whatever might even hint at intellectual impairment. But witnesses may have died or moved away; records get lost; in some backward counties, the defendant may never have seen the inside of a schoolroom. Some intellectually impaired people are drifters; some may not even remember people and places from the past.
All of this information must be obtained by the trial date, Kase warned, because there exists a very high procedural bar to get a jury verdict or a post-conviction determination turned around, even with new evidence. This is manifestly unfair, but it just one more way that the states make it tough for capital defendants to present their case. Intellectually impaired defendants face yet another onus: in order to present a convincing case, they need AT LEAST two expert psychologists on their defense team, one to present the history and one to administer and explain the IQ test. This is a minimum in practice given that prosecution usually deploys a veritable army of psychologists. This spells bad news for indigent defendants, who are lucky if they get a court-appointed lawyer who knows anything about intellectual impairment. Georgia, moreover, has created what The New York Times rightly decried as “an intolerable burden of proof” by requiring “that offenders prove they are mentally retarded beyond a reasonable doubt, a procedural threshold that is extremely difficult to reach.”
The trial judge is the person who not only appoints a lawyer for an indigent defendant, but allocates the funds for his or her expert witnesses. This varies from jurisdiction to jurisdiction; even with the best will in the world, a judge may not have the funds at his disposal to ensure an adequate defense. And a hanging judge will parcel out cigarette money. Since the economic downturn, Kase said, indigent defendants have been hard hit, especially the intellectually impaired, who must mount such a costly defense.
Does this mean that intellectually impaired defendants are being wrongfully executed? The Death Penalty Information Center has no hard evidence, but both Dieter and Kase strongly suspect that innocent, intellectually impaired people are ending up on the death gurney. The solution, Dieter believes, is a kind of competency hearing tailored to the unique nature of intellectual impairment. A hearing that takes into account the possibility that an intellectually impaired person might be able to communicate with his lawyer, yet might be profoundly afflicted in other intellectual spheres. But Dieter is not optimistic that such an enlightened approach is going to emerge any time soon.