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