10 Years Later: Still Executing The Intellectually Disabled?

Teresa Lewis

Teresa Lewis was executed in 2010 despite being assessed with “borderline mental retardation.”

While we wait with bated breath for important human rights related end-of-term Supreme Court decisions – healthcareimmigration and juvenile life without parole among them – we look back to a landmark death penalty case decided ten years ago today, Atkins v. Virginia.

In Atkins, the Court held that executing individuals with intellectual disabilities (known then as “mental retardation”) was “cruel and unusual punishment” and prohibited by our Constitution’s Eight Amendment.

Unfortunately it was left to the states to define “mental retardation” and decide how to comply with the ruling, leading to multiple definitions and procedures in different states. To define intellectual disabilities, an IQ score of 70 has been widely used as a dividing line, but there can be multiple IQ tests with different scores, and other factors that suggest greater, or lesser, intellectual disability, so even this solid seeming number has not clarified things much.

The result has been a chaotic mish-mash in which dozens of death sentences have been reduced because of successful Atkins claims, yet several people have been executed despite claims that seem to be equally compelling:

Georgia Ordered To Videotape Execution

Last night (July 20), Georgia was scheduled to execute Andrew Grant DeYoung, but postponed the execution 24 hours over questions that the state’s new three-drug cocktail inflicts unconstitutional levels of pain. If DeYoung is executed tonight, he will become the second death row inmate to be killed by Georgia with their new lethal injection protocol. Last month, Roy Blankenship was the guinea pig for this new procedure, and his death did not go as planned.

Georgia was forced to amend its execution procedure after its supply of sodium thiopental was surrendered to the DEA amid an investigation into that drug’s questionable origins abroad. Georgia then switched from sodium thiopental to pentobarbital, a drug whose Danish manufacturer explicitly opposes its use in executions.

Due to the unnecessary suffering apparent in Blankenship’s execution, a Georgia superior court judge ordered that DeYoung’s execution be videotaped for further private examination by the court. This would be the first such recording since a California execution in 1992. Georgia argued that the videotaping should not be permitted, but the Georgia Supreme Court denied the state’s attempt to prevent the recording.


9 Out of 10 Counties, Zero Death Sentences Since 2004

What makes a punishment “unusual?” The 8th Amendment to the Constitution bans “cruel and unusual” punishments, and the Supreme Court in recent years has suggested that a punishment becomes unusual when few states have it in their laws, or, if laws are still on the books, when few jurisdictions choose to actually use the punishment

So what do we make of the fact that since 2004, only 10% of US counties have actually passed a death sentence?  That’s the bottom line of a new set of maps (presented on the Second Class Justice blog) which illustrate US death sentences by county from the years 2004-2009.  Counties are where US death sentencing happens (aside from federal death sentences).  If 9 out of 10 counties have not issued a death sentence in 5 years, does that make the death penalty unusual?

One of the reasons the high Court struck down capital punishment as “cruel and unusual” back in 1972 was its inconsistent and arbitrary application.  “…[C]ruel and unusual in the same way that being struck by lightning is cruel and unusual,” the Court said.  In reinstating the death penalty, the Court insisted that death sentences be limited to the “worst of the worst.”  But that hasn’t happened.  Instead, death sentences, like real estate, are all about location, location, location.

And the maps reveal that the prime real estate for death sentences is no longer in Texas or other parts of the Old South.  In recent years, the most enthusiastic death sentencing counties have been further west, in California and Arizona.  (These same states, incidentally, are currently embroiled in a controversy over whether or not they acquired execution drugs illegally.)

You Have Been Sentenced to…Paralysis?

After a violent fight broke out between two brothers two years ago in Saudi Arabia; one of the brothers was sentenced to seven months in prison during a trial where he did not receive legal representation. But the judge is thinking of adding another punishment — paralysis.

When one brother allegedly attacked the other with a cleaver, the victim was left paralyzed and in turn requested that the punishment for the aggressor resemble his injuries.  The judge in Tabuk, in the northwest of Saudi Arabia, has contacted several hospitals, inquiring as to their capacity to damage the man’s spinal cord in such a way to mimic the injuries of the victim.

One hospital reportedly said it would be possible to medically administer the injury at the same place on the spinal cord as the damage the man is alleged to have caused his victim. The King Khalud Hospital released a medical report saying they could injure the spinal cord with a nerve stimulant causing paralysis .

We have urged the Saudi authorities to not deliberately paralyze the man as punishment as it is a retributive punishment resembling torture.

Torture and other cruel, inhuman or degrading treatment or punishment are absolutely prohibited under international law and violates the United Nations Convention against Torture to which Saudi Arabia is a state party.

Saudi Arabia must not sentence this man to deliberate paralysis and adhere to international law regarding torture and inhumane punishment.

What's Changed?

It was the early summer doldrums of late June.  The year was 1972.  The number one song was Neil Diamond’s Song Sung Blue (really??), and the movies that came out that weekend were The Candidate and Conquest of the Planet of the Apes (not exactly blockbusters like The Godfather).  But there was some relatively big news – bigger, at least, than the news from twelve days earlier that five men had been arrested for breaking into the Democratic National Committee headquarters in the Watergate Hotel.  The bigger news was that the US Supreme Court, by a 5-4 vote, had banned the death penalty.

It was clear at the time that the Court’s slim majority was not stable.  They all had their own different reasons for voting to nullify the nation’s capital punishment laws.  Two wrote that the death penalty was “cruel and unusual punishment”; another wrote that it was discriminatory; another wrote that it was arbitrary (his exact words were, “freakish and wanton”), and still another doubted that executions met any general need for retribution.

It’s almost 40 years later, and the death penalty continues to discriminate, largely on the basis of the race of the victim.  It also continues to be arbitrary – the vast majority of murders do NOT result in a death sentence, and the limited success of capital prosecutions is often determined, not by the heinousness of the crime, but by where the crime is committed and whether the defendant can hire his own lawyer.  The value of retribution in a punishment carried out so rarely and randomly remains doubtful.  And, as more states abolish the penalty or restrict its use (only 11 states carried out executions last year), and as death sentences continue to decline, the “cruel and unusual” argument carries greater weight

When the death penalty in the US is abolished again (and permanently), the movies may be different (then again they may not), the songs may be different (we can only hope), but the arguments will be pretty much the same.