|Posted by Margo Schulter on September 28th, 2011|
In the immediate wake of the tragic
execution of Troy Davis, killed by the State of Georgia despite serious doubts
concerning his guilt and widespread appeals for clemency even from usual death
penalty supporters, one of the most moving voices was that of Allen Ault, former
Director of the Georgia Department of Corrections, who had himself supervised
and helped carry out executions in Georgia.
"It's one thing to
theorize about it or talk about it abstractly, but when you're in the
death chamber ordering an execution, and even if you… actually believe
somebody isguilty, it's still a very premeditated murder. It's scripted and
rehearsed. It's about as premeditated as any killing you can do."
"It['s] exacting a toll whether you believe they're innocent or they're guilty. You're actually killing somebody.”
"There are people
without conscience, psychopathic type people, some of them politicians, and sadists
who would volunteer. I would hate to see us fall; to be that depraved that they
would let people like that do the execution.”
"I can't see the
justification. If we're just reaping vengeance for somebody, I don't see the
"As the warden of San
Quentin, I presided over four executions. After each one, someone on the staff
would ask: `Is the world safer because of what we did tonight?'
"We knew the answer:
|Posted by Christine Meuris on September 22nd, 2011|
Originally posted on Fair and Unbalanced
Thomas Thompson had been within hours of his execution a year before when a decision by the 9th Circuit Court of Appeals had spared him. This stay was now permanently vacated and once again he was scheduled to die within hours.
My husband had been with him at the prison. Thompson's mother had been there too in the private visiting room, where state procedure allows for a shackled last few hours. Trays of cold cuts and cheeses lay on a table bringing to mind working lunches, staff meetings and birthday parties. Was anyone hungry?
At six o'clock, the visitors including the lawyers were required to leave. A member of Thompson's legal team would come later to be a witness, while the rest worked on.
That is how my husband came to be at the office while the collect call from San Quentin came to our house. Upon accepting the charges I heard for the first time the voice of the man who had occupied so much of my married life, the man who my husband was fiercely trying to protect from the ultimate punishment.
In the summer of 1981, I was a skinny kid in a red and white bathing suit playing in the waves and collecting shells washed up on the sand in Laguna Beach, California. That same summer in that very vacation town an awful situation or plot, depending on how you look at it, was brewing for Ginger Fleishli and Thomas Thompson. By early September of that year, Ginger's body was found wrapped in a sleeping bag in a field.
The man convicted of this crime was now asking me whether my husband was home. No he was not, he was at the office. Did he have the number I asked? He did, and that was all there was to say. What does one say to someone who is keeping a stiff upper lip and who for the second time in a year is staring into the face of death by injection? I stumbled and bumbled, almost saying "good luck" before I said the only thing there was to say, "Goodbye."
I hung up the phone feeling as though the wing of death had brushed overhead, through the fog that blanketed my husband's office, our home and the prison.
Last night, my husband listened to the radio quietly to hear the fate of Troy Davis while I put the kids to bed. This morning I woke to find him going through his morning chores, heavy hearted. The U.S. Supreme Court had cleared the way for Troy Davis' execution and he had been put to death.
A reporter had called my husband in Troy Davis' final hours to ask whether my husband saw any connection between the Thompson and the Davis case. There was so much doubt raised upon appeal about the defendant's guilt. Each man faced a breathtaking stutter-stop journey of temporary defense victories on the way to the death chamber. My husband pointed out these things.
But it is the second thing, common to all cases, this bumpy road of hope and despair while fate hangs in the hands of others that is the final, impossible obscenity of the death penalty and the creepy thing that made our hearts heavy this morning as we got the kids ready for school.
These cases are subjected to level upon level of review in an attempt to ensure that the death penalty is administered properly; states search for ways to kill people that do not set their hair on fire or suffocate them while the are too tightly strapped to writhe; as we do all this, the one thing we cannot do anything about, is the forcing of an otherwise healthy person to stare for years at their untimely death, as they swing between hope and despair.
It is impossible to imagine what this is like, as impossible as finding the right words to say, when a man in this position, in his last hours, calls on the phone.
|Posted by Ana Zamora on |
Mark your calendars, friends: November 6, 2012 will be a day to celebrate. It's the day we're going to end the death penalty in California.
On August 29, 2011, Taxpayers for Justice, a group of law enforcement professionals, crime victim advocates, and individuals exonerated from wrongful conviction, launched the SAFE California Campaign, to put before the voters an initiative that will replace the death penalty with life in prison without the possibility of parole. It has taken years, even decades of work by many of you to get to this point. I know some people thought it might never happen. But it is really happening. And yes, we really can win-with your help.
SIGN UP NOW to join this tremendous and historical effort to end the death penalty. We are actively seeking volunteers to help gather the signatures needed to qualify for the ballot.
Now, a little information about the initiative.
The SAFE California Act will:
The SAFE California Act is an important law because:
|Posted by Stefanie on August 31st, 2011|
Ana has long admired the work of Death Penalty Focus and is honored and excited to join this organization as Program Director. Ana graduated from Mills College in 2005 with a Bachelor's Degree in Political, Legal, Economic Analysis and a Minor in Sociology. Two weeks after graduation, Ana was selected for a job that would really change her life. The California Appellate Project (CAP) hired Ana, as their new Training and Mitigation Coordinator. At CAP Ana had the opportunity to work alongside expert capital defense lawyers and learn about California's dysfunctional death penalty system. After working at CAP for four years, Ana was hired to work with Natasha Minsker at the ACLU of Northern California on their Death Penalty Policy Project. Ana will continue to work with the ACLU's death penalty project part-time. Ana lives in sunny Oakland with her wife, Stacey, and her cat named Turtle.
|Posted by Stefanie on August 24th, 2011|
We are thrilled to report that after 18 years, Damien Echols has been released from death row and Jason Baldwin and Jessie Misskelley have been freed from prison. The three men, known as the West Memphis Three, have always maintained their innocence. Read the New York Times breaking story.
Thank you for standing up for justice and speaking out for the innocent. These victories remind us that we are winning. With your continued activism and financial support, we are confident that the wins will continue.
Thanks to your actions and your support, we know that we will keep bending that arc and we will end the death penalty in our lifetime.
|Posted by Margo Schulter, Guest Blogger on August 11th, 2011|
On August 11, 1977, a fateful day in your life as the Governor of
California and mine as a young activist, I was a guest at the
apartment of my friend Miriam Rothschild in San Francisco, the
very epitome of a devoted volunteer to her community. We knew
each other through our involvement in the Northern California
Coalition Against the Death Penalty, and together watched on
television the drama that was unfolding at the State Capitol.
The members of the Assembly were casting their votes as to
whether or not to override your principled and courageous veto of
Senate Bill 155, a bill which, among other things, restored
capital punishment in California. The moment of truth came when
an Assembly member from the Los Angeles area announced that he
could not disregard the evident wishes of his constituents, and
cast the vote providing a 2/3 majority to enact the bill over
Today, happily, there is another bill making its way through the
legislature to uphold the ethical and human values which you so
courageously defended 34 years ago, and to do so with direct
participation by the voters themselves: Senate Bill 490,
This bill, if enacted and signed by you, will let the people of
California decide at the ballot box in 2012 whether or not to
impose permanent imprisonment or life without parole (LWOP)
as the uniform and consistent penalty for all capital offenses in
California. Under California law, LWOP prisoners are required to
perform labor and thus make restitution to the victims of crimes,
including family members of murder victims, so SB 490 actually
means "LWOP plus restitution," or LWOP+R for short.
How can we hope to abolish the death penalty in California at the
ballot box, after a list of defeats with which we are both
intimately familiar? For example, Proposition 17 in 1972 amended
our State Constitution to overturn a landmark decision of the
California Supreme Court holding capital punishment to be a
"cruel or unusual punishment."
In 1978, urged to go beyond the Legislature's "weak-kneed death
penalty law" passed over your veto the previous year, voters
passed Proposition 7, vastly expanding the range of "special
circumstances" murders subject to death or LWOP.
And in 1986, your appointee Chief Justice Rose Elizabeth Bird and
two of her colleagues were denied confirmation by the voters
after a highly politicized and often acrimonious campaign largely
focused on the Court's reluctance to affirm death sentences.
Given this history, the very idea of "winning at the ballot box"
seems to call for a serious sanity check. During the 25 years
since the calamitous judicial reconfirmation election of 1986,
three trends have been percolating beneath the surface of public
opinion which now give us the momentum to turn the tide.
First, as early as 1989, Professor Craig Haney at University of
California Santa Cruz found through a scientific survey of
eligible California voters that although 79% expressed "support"
for the death penalty, 67% actually preferred the alternative of
LWOP plus labor and restitution (LWOP+R), with only 26% still
preferring the death penalty when this choice was offered. A
follow-up survey in 2009 by Professor Haney and associates showed
very similar results, with 66% "support" for the death penalty
when no alternative was offered, but again only 26% when the
alternative choice was LWOP+R.
The same trend was revealed in a poll just this April by David
Binder Research, in which 63% of Californians surveyed favored a
proposal to convert the sentences of all current Death Row
prisoners -- around 715 -- to LWOP+R. Majorities of Democrats,
Republicans, and Independents supported this measure as a way of
saving a billion dollars every five or six years at this time of
budgetary crisis in our State.
The second trend which has been percolating beneath the surface
for more than two decades is a recognition of the full cost of
the death penalty, fiscal and human, and the devastating
opportunity costs our futile machinery of legal death inflicts on
other law enforcement measures which can effectively reduce crime
and punish its perpetrators more swiftly and consistently.
As early as March 1988, only a year and half after Chief Justice
Rose Bird was forced by voters to leave the Court, Stephen
Magagnini of the Sacramento Bee documented how California could
save $90 million each year by replacing the death penalty with
At that time, Magagnini estimated that at an extra cost of $90
million a year, and assuming the historical rate of about six
executions each year, taxpayers would be paying about $15 million
per execution. Two decades later, to borrow Mahatma Gandhi's memorable
phrase, we can say this estimate was rather a "Himalayan
miscalculation" -- in the low direction!
Since 1977, California has had 13 executions at a cost placed by
federal Ninth Circuit Judge Arthur Alarcon and Loyola Law School
Professor Paula Mitchell at $4 billion. That amounts to about
$300 million dollars per execution, or 20 times what seemed to
Magagnini and others a reasonable estimate in 1988. A report by
Natasha Minsker at ACLU of Northern California nicely sums up the
question of costs, "And today, with California's urgent budget crisis in law
enforcement and victims' services as well as other vital areas,
we simply can't afford this kind of extravagance!"
Getting more cops and homicide investigators on the beat, solving
more "cold case" homicides and improving on the clearance rates
for murder now at only around 50% in many of our counties,
keeping services for victims adequately funded, and "connecting
the dots" to prevent some of these homicides and other violent
crimes -- these are agendas the public can understand. And SB 490
gives them the opportunity to rethink priorities in a situation
the voters didn't have before them in 1972, 1978, or 1986.
Finally, there's a third trend that's been quietly percolating
over these eventful decades: a recognition that LWOP actually
means what it says in California! Over 3700 California prisoners
have received this sentence, with only a handful released because
of the one "escape clause" we should want to keep: later it had
been discovered that they were actually innocent of the offenses
for which they had been convicted. LWOP, like the death penalty,
spells permanent incarceration and death in prison -- but allows
room for correcting the rare but not unknown miscarriage of
Today, 34 years after the fateful passage of SB 155 which you
courageously sought to avert, we are turning the tide: SB 490
points the way to victory through the ballot box. On this day, as
victory is within our sight, we might remember the words of the
late Justice Stanley Mosk, a great California jurist and tireless
public servant under you and your father:
"The day will come when all mankind will deem killing to be
immoral, whether committed by one individual or many
individuals organized into a state."
To these words we may add that many Californians ready to support
the death penalty in the abstract may nevertheless prefer, as
polls have shown for some 20 years, a more swift, reliable, and
cost-effective system of justice based on LWOP+R. Please join us
in reaching out to these citizens, who can become our partners in
victory through SB 490 and the democratic choice it offers.
TO TAKE ACTION IN SUPPORT OF SB 490: CLICK HERE.
|Posted by Stefanie on July 21st, 2011|
Los Angeles Times columnist and radio personality, Patt Morrison, interviewed Donald Heller, author of California's current death penalty statute, on July 16th about why he no longer supports capital punishment. In the interview Heller cites "the enormous toll it [takes] on people involved" including defense lawyers, judges and other players in the system, the high cost and the risk of executing the innocent.
Heller, a former prosecutor, only became vocal about his opposition to the death penalty after the execution of Thomas Thompson in 1998, a man Heller believes was innocent.
He admits, "The way I look at it, what I created can and may already have resulted in the death of an innocent person. And that's pretty heavy."
"The thing I regret most that I cannot change -- except by what I do now -- was drafting the death penalty initiative," Heller laments.
|Posted by Emily Hammagren, Guest Blogger on June 30th, 2011|
I'm training to run a marathon (26.2 miles) in Walla Walla, Washington on October 16th, 2011 to raise funds for the Washington Coalition to Abolish the Death Penalty (WCADP) and increase awareness of the damage that the death penalty does to our society. While the Walla Walla run is small compared to those in big cities, the location is significant in that Walla Walla is the home of Washington's death row for men and the state's execution chamber.
Funds raised go towards WCADP's outreach and education campaigns throughout Washington state.
It's time for Washington to join the growing list of states like New York, New Jersey, New Mexico, and Illinois that have realized that they can do better than offer victims' families the false promise of haling and closure from the death penalty. This year, Washington was among a dozen states that held hearings on legislative bills to replace the death penalty with life without the possibility of parole.
Also, it's not too late to join me in Walla Walla to run the marathon, half marathon, 10K, or to cheer everyone on!
|Posted by James Brockway on June 23rd, 2011|
Senator Patrick Leahy (D-VT) has introduced an important new bill that will protect the rights of foreign nationals accused of capital crimes. The proposed legislation, titled the Consular Notification Compliance Act (CNCA), will give federal courts jurisdiction to review cases of death row inmates who were not afforded access to their country of origin’s consulate after their arrest, a right which they are guaranteed under the Vienna Convention on Consular Relations, to which the U.S. has been a signatory since 1969. The CNCA would also take steps to ensure that Court’s mandate that individuals are provided with consular access in future cases. There are currently 133 foreign nationals on death rows in the U.S., only 53 of whom received proper notification.
|Posted by Zac Stone on June 21st, 2011|
A new study released this week puts the cost of maintaining the death penalty in California higher than it has ever been estimated in the past. Ninth Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, the study's authors, calculated that California taxpayers have spent more than $4 billion since capital punishment was reinstated in 1978, and estimate the annual cost of pursuing executions to be $184 million more than pursuing life without parole.
The report, facilitated by previously unavailable records from the California Department of Corrections and Rehabilitation, details exactly where and why seeking the death penalty costs so much more than life, as in the extra $200,000 spent per capital case on jury selection, the upwards of $300,000 spent on attorneys representing each inmate on appeal, and the more than $100,000 extra it costs to incarcerate a death row inmate within more secure housing (though other states have had success in "mainstreaming" death row inmates with the general population).
Few reasonable people would argue that $184 million is not a lot of money to be spending annually on just over 700 people, death row inmates or otherwise; the San Jose Mercury News deems it "fiscal insanity," and we tend to agree. Look at it one way and California has spent $308 million to execute each of the 13 men that have faced execution here since 1978.
The study's authors offer three options for ending the current cycle, which threatens to bankrupt the state (further) if not dramatically altered. The authors contend that another $85 million annually would fund California's death penalty system efficiently, while reducing the number of death-eligible crimes would potentially save taxpayers $55 million each year. By abolishing the death penalty altogether, Alarcon and Mitchell suggest California would save one billion dollars every five or six years.
There are simple ways to invest money that will reap great rewards in security for our communities. Early childhood education has proven time and again to have long-lasting effects on at-risk families. One decades-long study coming out of Chicago last week shows kids who attended an established preschool program there completed high school at higher rates and had a 28 percent lower incarceration rate than those who did not attend the program. Long-term programs that continue into second or third grade have an even more pronounced effect, with 36 percent fewer ending up in prison. Afterschool programs have similar effects, keeping at-risk kids off the streets during violent juvenile crime prime time, and allowing their parents to remain productive members of the workforce.The programs that work most effectively at reducing crime and improving general wellbeing in our communities will have to wait for increased funding, however, until our leaders come to their senses and stop throwing more money than most of us can fathom at a system that seems, at best, designed to fail. If a $300 million execution doesn't meet Californians' threshold of "fiscal insanity," we shudder to think what does.
|Posted by John MacGregor, Guest Blogger on June 16th, 2011|
A recent New York Times article discussed the difficulty one Indian state is having finding a hangman for an upcoming execution. With the president rejecting a last chance appeal for a murderer in the state of Assam, prison officials are now being forced to find an executioner. The only problem is that no one has answered the ad. With executions a rarity in India (the last in the entire country of 1.2 billion people was in 2004), very few certified hangmen can be found. Officials in Assam eventually began looking to neighboring states for help, but continued to be stymied. While the fate of the condemned man is up in the air pending the search, Indian defense lawyers are raising issues that find resonance with many of the flaws in the American system.
After a capital sentence is handed down in India, a mercy appeal goes before the country’s president. This appeal does not have to be decided within a set time frame. The petition for the condemned man in Assam sat pending on the desks of three presidents before it was finally rejected last month. This snail’s pace has led some defense lawyers to launch a counter intuitive argument: “The man was given capital punishment but not 14 years of imprisonment,” the condemned man’s lawyer argued. “For the last 12 years, you are virtually killing him every day.”
“You are keeping a man with the sword of Damocles hanging over his head,” another defense lawyer remarked. This argument contends that forcing someone to wait years or decades for their execution amounts to cruel and unusual punishment. Ostensibly, this argument is calling for either the abolition of capital punishment or the streamlining of the process. Interestingly, the American death penalty faces many of the same problems the Indian system does.
In the United States, inmates often wait longer than 15 years before being executed, with some inmates having waited for more than 30 years. Applying the Indian argument, these inmates have been sentenced to death, not 30 years imprisonment and then death. While streamlining the process may sound appealing, other blog entries have noted the many instances where new exculpatory evidence comes to light and exonerates condemned inmates after years of incarceration.
The current lengthy appeals process serves a purpose – it ensures, among other things, that the condemned inmate indeed was guilty of the crime for which he was convicted. Doing away with this process would dramatically increase the likelihood of an innocent person being executed. If we agree that a lengthy appeals process is oftentimes necessary, yet that such a wait accompanied by the uncertainty of death amounts to cruel and unusual punishment, perhaps the only ethical alternative is abolition.
|Posted by Stefanie on June 15th, 2011|
Humberto Leal Jr. is slated to be executed by the state of Texas on July 7th. His death will represent a grave miscarriage of justice as he received his sentence in clear violation of international law, which mandates that foreign nationals, like Mr. Leal, must be advised of their right to consular assistance after they have been arrested and charged.
|Posted by on June 15th, 2011|
This week has seen the loss of two important figures in the fight against the death penalty. On Friday, Norman Redlich, the former dean of the New York University Law School and a pioneer in the use of pro bono defense for death row inmates, passed away from complications of Parkinson's disease; he was eighty five. Mr. Redlich was joined a few days later by seventy five year old David C. Baldus, a long time professor at the University of Iowa College of Law, and the main author of a series of influential studies regarding racial disparities in the application of the death penalty.
|Posted by John MacGregor, Guest Blogger on June 13th, 2011|
Lundbeck, the only pharmaceutical company that supplies pentobarbital to the United States, has said that it will take steps to ensure that its drug will no longer be used for lethal injection. Lundbeck expressed moral opposition to the use of its product in executions. In a statement, the company declared that use of the drug in lethal injection proceedings "contradicts everything we are in business to do - provide therapies that improve people's lives." This news comes after a self-initiated industry boycott of sodium thiopental left states scrambling to find a replacement drug. Pentobarbital filled this void, but questions have been raised over the constitutionality of the drug. Little research has been conducted about any possible pain condemned inmates might have to endure with this new combination of drugs; inmates are paralyzed during the proceedings and cannot, therefore, physically express pain. If Lundbeck's boycott is effective, states will have to find yet another alternative drug.
Pentobarbital has been commonly used as an animal euthanasia drug. Recently there was a row over this issue in Texas when the ACLU published a report juxtaposing the state's regulation of veterinarians and prison officials: "Veterinarians in Texas are prohibited from using the combination of drugs that the Texas Department of Criminal Justice has deemed suitable for the execution of human beings," the report finds. The paper also details the numerous medical and professional qualifications veterinarians must have before they are allowed to euthanize animals. Prison officials, however, are granted a tremendous amount of discretion and autonomy when planning and administering a lethal injection execution. The report concludes that "it is no exaggeration to say that Texas regulates the euthanasia of reptiles more strictly than the execution of human beings."
|Posted by James Brockway, Guest Blogger on June 9th, 2011|
Yesterday, Ohio Governor John Kasich commuted the death sentence of Shawn Hawkins to life without the possibility of parole. The Governor’s decision follows last month’s unanimous recommendation for clemency by the Ohio Parole Board. Mr. Hawkins was sentenced to die for the 1989 murders of teenagers Terrence Richard and Diamond Marteen in Mount Healthy, Ohio. Mr. Hawkins has persistently and vigorously maintained his innocence.
|Posted by John MacGregor, Guest Blogger on June 1st, 2011|
In recent weeks we have been documenting the increasing level of difficulty prisons are having procuring sodium thiopental, a drug used in lethal injection proceedings. After the last US supplier stopped production of the execution drug on moral grounds, states have had to turn to overseas providers, including pharmaceutical companies in Italy, Germany, Taiwan, the UK, and India to provide the drug. In order to import the drug, however, many states circumvented federal law by not declaring the shipments to the DEA. It seems that this crisis is reaching a critical point. A previous blog post detailed the DEA’s seizure of Georgia’s stockpile of sodium thiopental after the state had illegally imported the drug from an overseas supplier. Recently, however, the DEA has widened the scope of its probe into these shipments, and has now seized state stockpiles from Alabama, Kentucky, Tennessee, and South Carolina. Arizona, Arkansas, California, Nebraska, and South Dakota have also received shipments of sodium thiopental from overseas providers, but their stockpiles were not raided.
The revelation that these states illegally obtained their sodium thiopental has sparked outrage in death penalty watchdog groups. Natasha Minsker, the Death Penalty Policy Director for the ACLU of California, commented on the implications of this news: “The DEA records demonstrate that Arizona and other states broke the law. We cannot understand why the DEA has failed to act but has allowed the states to keep these illegal and dangerous drugs. When state officials break the law in order to carry out an execution, it makes a mockery of our justice system and puts us all at risk. State and federal officials must follow and enforce the law—that’s their duty and what the public expects and deserves.” Ms. Minsker filed a Freedom of Information Act request with the DEA and received the documents that suggested inconsistencies between the publicly known shipment records and the actual supplies of the drugs.
From here, it’s hard to tell where this story might lead. In response to the shortage of sodium thiopental, one state adopted a new lethal injection protocol, where inmates are executed with a single drug that has normally been reserved for animal euthanasia. If more states follow suit and adopt a similar procedure, there might be room for a legal challenge to this method of execution, potentially resulting in increased delays while the Courts study whether or not the single drug method violates the 8th Amendment’s prohibition against cruel and unusual punishment. If this is the case, such a review might cause another de facto moratorium similar to the one currently in effect in California.
|Posted by James Brockway, Guest Blogger on June 1st, 2011|
With citizens across the country taking active efforts to end capital punishment, progress is being made in Pennsylvania, though it has not come via the typical legislative jockeying and heated policy debate. Instead, the state’s jurors are quietly working to make Pennsylvania, which still has the death penalty on its books, abolitionist in practice, as they have become increasingly unwilling to hand out death sentences in capital murder cases.
Amongst the more prominent supporters of these efforts is former Governor, and long time death penalty proponent, Ed Rendell, who on his last day in office challenged the legislature to either take concrete steps to make the death penalty an effective law enforcement tool, or abandon it all together. According to Governor Rendell, the interminable delays associated with the penalty eviscerate its deterrent effects, and it is unclear if such problems are even fixable.
|Posted by Zac Stone on May 27th, 2011|
The results of a study published last year in the Law & Psychology Review (pdf) on juror perceptions of intellectual disability should surprise no one, yet the study's implications in capital trials are grave. Mental health workers' views on intellectual disability - referred to in the study as mental retardation, a term that is losing popularity, but still medically accurate and ingrained in law - and those views of jurors differ greatly, with those in the mental health field allowing a broader definition of disability based on eight areas of functioning.
The study found that jurors, presumably a group of folks representative of the American populace (in this case they came from a suburban area in a southeastern state), vastly underestimate the functional abilities of people with intellectual disabilities, when asked to identify characteristics that might suggest mental retardation, as compared to the estimations of mental health professionals.
Though the Supreme Court's decision in Atkins v. Virginia prohibits the execution of a mentally retarded person, the court did not define mental retardation, implying that states' death penalty statutes should conform to the diagnostic criteria put forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. In practice, unfortunately, while experts in the mental health field testify and offer their opinions in court, it is not a trained professional who ultimately measures a defendant's mental abilities, but a group of strangers from the defendant's community, whom the study authors refer to as "fact-finders."
The study's authors expected jurors to somewhat accurately measure three areas of functioning - independent living, school performance, and the ability to read and write - as they relate to intellectual disability. These are three signs that most laymen identify as being indicative of intellectual disability, but as the study found, jurors don't have a great idea of how capable the intellectually disabled are of living on their own in society, they tend to rely too heavily on school performance and reading and writing ability, and they misunderstand the significance of other factors.
Jurors are also reluctant to attribute characteristics to mental retardation or intellectual disability unless they "suggest extremely severe impairment," fitting the paradigm that many Americans have built around intellectual disability in which they imagine a person wholly dependant on others to survive. For instance, jurors were willing to connect a person's history of living in state hospitals with mental retardation, but largely they did not believe that a person with an intellectual disability could live in an apartment alone with only occasional visits from a social worker, while mental health workers, with more experience around the intellectually disabled, were quick to make the connection. Jurors also saw drug use and sexual activity as indicators that a person was intellectually capable, while mental health workers allowed for more nuance in these areas, and pointed to a person's romantic involvement in relationships as a better indicator of intellectual ability.
One of the study's key findings was that jurors strongly expect the intellectually disabled to be unaware of or unable to understand the wrongfulness of their actions, and jurors were more willing to attribute criminal behavior to a defendant's disability in such cases than if the defendant expressed an understanding of the crime. Those in the mental health field know, however, that those with milder cases of intellectual disability, who tend to make up the majority of intellectually disabled capital defendants, often can understand some implications of their crime, while not fully respecting the gravity.
In death penalty trials, in which juries ultimately decide if a defendant is mentally capable of being punished by death, the repercussions of this study, assuming the results are reproducible and applicable to juries elsewhere, are not to be underestimated.
Jurors who believe the intellectually disabled must be relegated to group homes or state hospitals, or that they cannot be sexually active, consume drugs, or attend public school, will not be able to effectively enforce the law of the land, in this case the Supreme Court's Atkins decision prohibiting the execution of the intellectually disabled. While it is expected that experts in any given field will have a better understanding of that field, as mental health workers better understand intellectual disability, the average American's level of ignorance on this topic makes clear that attorneys in capital cases must better prepare jurors to make the type of decision they have been tasked with - one of life or death.
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