Sunday, November 3, 2013

GateHouse: Supreme Court takes up some unfinished business

Matthew T. Mangino
GateHouse News Service
November 1, 2013

Eric Nesbitt, an airman stationed at Langley Airbase in Virginia, was murdered during a robbery in 1996. Two men, Daryl Atkins and William Jones, were responsible for his death. Even though there was testimony at Atkins’ trial that his IQ was only 59, he was sentenced to death.

Atkins appealed. The issue of his mental disability made its way to the U.S. Supreme Court in 2002.  The court, in a decision that bears the name Atkins v. Virginia, banned the execution of the mentally disabled. The decision was based on what the court called evolving standards of decency.

Only 13 years earlier, the Supreme Court ruled that executing the mentally disabled did not violate the Eighth Amendment ban against cruel and unusual punishment.

In Atkins the Supreme Court made an about face — executing the mentally disabled was now unconstitutional. However, what the court failed to do was define mental disability.

That decision was left to individual states. At the time there were 37 states with the death penalty, today there are 32.

As a result of Atkins, states went about drafting legislation and courts began crafting individualized methods for determining mental disability. Some states decided the issue after conviction; some states made the determination before trial — but more importantly, states employed different methods for defining the same thing.

Atkins’ case was sent back to Virginia to determine if he was mentally disabled. The guy whose case abolished the execution of the mentally disabled was subsequently determined not to be mentally disabled and placed back on death row.

Atkins was later removed from death row for completely unrelated reasons and is now serving a life sentence.

After the Atkins decision, many offenders on death row were deemed mentally disabled and were resentenced to life in prison. For those that killed after 2002, and alleged a mental disability, there was a patchwork of state laws and policies to determine eligibility for the death penalty.

Eleven years have passed and finally the Supreme Court has agreed to do what the court should have done in 2002 — provide a framework for determining mental disability.

The new case, Hall v. Florida, arose from the 1978 murder of Karol Hurst, who was 21 years old and seven months pregnant when Freddie L. Hall and an accomplice forced her into her car in a supermarket parking lot. According to the New York Times, she was found in a wooded area, where she had been beaten, sexually assaulted and shot. Hall was convicted of murder and sentenced to death.

The trial court originally placed Hall’s IQ at 60, although the court found he was not mentally disabled.

"Unfortunately, the human race has not yet developed a test for mental retardation that is like a blood pressure machine, hooked up to a defendant's arm with a gauge that reads R for retarded or N for not retarded," Hall’s brief argues, according to the USA Today. "The state of Florida cannot invent out of whole cloth a bright line cutoff for determining mental retardation."

"It is certainly of concern that in some states Hall would be mentally retarded by those states' definitions, while in others, like Florida, the bright-line cutoff requires a contrary finding," wrote Florida Supreme Court Justice Barbara Pariente in a concurring opinion upholding Hall’s conviction. "At some point in the future, the United States Supreme Court may determine that a bright-line cutoff is unconstitutional because of the risk of executing an individual who is in fact mentally retarded."

That time has come. The Supreme Court must provide a uniform procedure for determining mental disability for purposes of the death penalty.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.
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