Column Death penalty opponents enjoy rare victory
By ROBERT F. DRINAN
Daryl Atkins, an African-American
child born in southern Virginia to an unstable couple, failed second grade and
was held back. He struggled in third grade and was promoted. His grades in
fifth grade were abysmal; there are no records for sixth grade.
In the seventh grade, he was finally referred for testing for
special education but inexplicably did not receive it. His sole success in
school came in those years when he was placed in a structured environment for
slow learners. Atkins left school without graduating. His parents divorced when
he was 8 years old. Atkins began substance abuse at the age of 18, had a
criminal record by 21. The murder for which he was to be executed occurred on
Aug. 7, 1996.
The state of Virginia refused to accept any of the evidence
offered to show that Atkins was retarded. Dr. Nolan, a qualified psychologist,
testified that Atkins had an IQ of 59, in the lowest 1 percent of the
nation.
On June 20, the U.S. Supreme Court reversed the conviction of
Atkins. In a 6 to 3 split, the court ruled that retarded persons may not be
executed. That reversed its own 1989 ruling to the contrary. It did not concede
error but asserted that the nation had developed a consensus against executing
the retarded.
The Catholic position on the execution of anyone -- especially the
retarded -- was eloquently stated in a friend of the court brief by the U.S.
Conference of Catholic Bishops. Experts in the field of mental retardation
along with authorities on international human rights told the court that only
Japan and Kyrgyzstan allow the execution of the retarded. Kyrgyzstan has now
announced that it will no longer condemn the retarded to death.
The majority view, written by Justice John Paul Stevens, is short
and decisive: The retarded may not be executed. It is simply unjust to execute
someone who by definition cannot appreciate the heinousness of his acts. It is
a violation of the Constitutions ban on cruel and unusual punishment.
There is also something wrong in allowing a state to execute a retarded person
when the Congress in 1988 outlawed the practice in a bill signed by President
Reagan.
The dissent quarreled not so much with the result but with the use
by the majority of the argument drawn from consensus. Justice Antonin Scalia
castigated the majority for using the term consensus, which he claims
does not really exist and which, if it did exist, would not necessarily be
binding.
It is understandable that the opponents of the death penalty are
rejoicing in a rare victory from the high court. But there is still no national
ban on executing those who were under 18 at the time of the crime or are
mentally ill. The chances of a reprieve for those who had less than competent
counsel are still murky. And the number of persons sentenced to be executed
edges up, with about 4,000 on death row.
The Supreme Court on June 24 decided that in all cases involving
the death penalty the jury and not the judge must decide the question of death
or life imprisonment. This might help some 100 convicts on death row.
No one is thinking of the bleak 30 or 40 years that Daryl Atkins
will spend in a dreary cell in Virginia. The prediction of dangerousness may
justify his permanent incarceration. But justice and compassion suggest that
efforts should be made to give him some of the training and education he was
denied.
The same should be said for the 2.1 million Americans in prison --
a number that has tripled in the last 20 years.
Jesuit Fr. Robert Drinan is a professor at Georgetown
University Law Center. His e-mail address is
drinan@law.Georgetown.edu
National Catholic Reporter, July 5,
2002
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