The year was 1989. Johnny Paul Penry was, as even polite folks said in those days, mentally retarded. He was also on death row in Texas. That combination of things, his lawyers said, should be impossible. The berobed ones in Washington agreed to answer whether they were. Sandra Day O'Connor put the question simply in her opinion for the Court.
We must also decide whether the Eighth Amendment categorically prohibits Penry's execution because he is mentally retarded.The answer (by a 5-4 vote) was a clear no. Oh, it's something juries ought to be allowed to consider (Texas more-or-less prohibited even that at the time) when deciding what to do, but hey, killing the retards is cool.
In sum, mental retardation is a factor that may well lessen a defendant's culpability for a capital offense. But we cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person of Penry's ability convicted of a capital offense simply by virtue of his or her mental retardation alone. So long as sentencers can consider and give effect to mitigating evidence of mental retardation in imposing sentence, an individualized determination whether "death is the appropriate punishment" can be made in each particular case.Fast forward to 2002. Daryl Renard Atkins was on death row in Virginia. Like Johnny Paul Penry, he was intellectually disabled. The Supremes decided to have another go at it. John Paul Stevens, who'd dissented in Penry began his opinion (for a different 5-4 majority) this way.
Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are "cruel and unusual punishments" prohibited by the Eighth Amendment to the Federal Constitution.
And so it was that Penry was overruled and execution of the intellectually disabled was recognized as unconstitutional.
The catch was that the Court decided to let the each of the states that killed people decide for itself how to figure out who was sufficiently, er, slow. Oh, sure, there were actual standards, clinical definitions by people who studied this shit out there, and the Court said they should count, but if you were, say, Florida, you didn't care about that. You just made an arbitrary cut-off of 70 and said if someone had a number higher than that,
Off with his head.
The Supremes took on Florida's rule last year in the case of Freddie Lee Hall. By the familiar 5-4 vote, they said, in an opinion by Kennedy, Florida blew it. That there were actual standards, clinical definitions by people who studied this shit. Florida couldn't just make it up. Alito, dissenting, said that sure they could.
Hey, we're talking about whether to kill the retards, not whether to treat them. Who cares what experts say? We have elected legislators and judges who are far more able to decide who has an intellectual deficit than people who study the matter. I mean, retards can always recognize another retard, right?*
Ah, but Georgia. The Peach Tree State. Where the guy on the row must prove beyond a reasonable doubt that he's a retard (as they probably still think it's proper to say down there).
Warren Lee Hill was in prison when he killed Joseph Handspike, another inmate. They've been trying to kill Hill ever since. Thing is, as Alan Blinder writes in the Times,
Although Mr. Hill’s appeals sometimes involved questions about Georgia’s lethal injection protocols, his last legal campaign dealt with a contention of an intellectual disability. Mr. Hill, with an I.Q. of 70, had “the emotional and cognitive functioning of an 11-year-old boy,” Mr. Kammer [one of his lawyers] said.“Warren Lee Hill is intellectually disabled,” Mr. Hill’s lawyers told the Supreme Court in a filing. “The lower Georgia courts have said this twice. All of respondent’s experts have acknowledged this fact.”
Get that. Hill's experts say he's intellectually disabled, and so do the experts Georgia dug up. I mean, the state can't find an actual
whore psychologist who'll say Hill isn't intellectually disabled (as they probably don't bother to say down there).
And then there are the courts. The ones that took the evidence and twice said he's intellectually disabled. And were overruled by higher courts because they're fucking retards (as we say up here of the Georgia high court).
And last night, after Georgia parole board or whatever they call it said to kill and the governor signed off on it and the 9 in DC said, it was OK (actually, only 7 of the 9 - Breyer and Sotomayor voted to call a halt at least to consider), they did. Last night.
By the way, around the time the good people of Georgia were committing an execution in violation of the 8th Amendment, the Texas Court of Criminal Appeals announced that it had no problem with that state's killing Robert Ladd tomorrow night despite the fact that he's intellectually disabled.
Because, really, nobody gives a damn.
*Disclosure: That's not an actual quote.