Texas executes man claiming intellectual disability

The 16th Execution of 2019

Robert Sparks, 45, was executed by lethal injection in Texas on September 25, 2019 for the September 2007 slayings of 9-year-old Harold Sublet and 10-year-old Raekwon Agnew in their Dallas home, reported The Associated Press.
In his final moments, Sparks uttered these words: "Umm, Pamela, can you hear me? Stephanie, Hardy, Marcus, tell all the family I love them. I am sorry for the hard times and what hurts me is that I hurt y'all, and um, even for y'all too, and Patricia, she wrote me, tell Patricia I wrote her back and to tell y'all what I said. I love y'all. I am ready."

Prosecutors say Sparks' attack began when he stabbed his wife, 30-year-old Chare Agnew, 18 times as she lay in her bed. Sparks then went into the boys' bedroom and separately took them into the kitchen, where he stabbed them. Raekwon was stabbed at least 45 times. Authorities say Sparks then raped his 12- and 14-year-old stepdaughters.
His attorneys asked the U.S. Supreme Court to intervene, alleging his trial jury was improperly influenced because a bailiff wore a necktie with an image of a syringe that showed his support for the death penalty. Sparks also alleges a prosecution witness at his trial provided false testimony regarding his prison classification if a jury chose life without parole rather than a death sentence.
Lower courts and the Texas Board of Pardons and Paroles turned down requests by Sparks' attorneys to stop his execution.
Sparks became the 16th inmate put to death this year in the U.S. and the seventh in Texas. Seven more executions are scheduled in Texas this year.
On Tuesday, the 5th U.S. Circuit Court of Appeals declined to stop his execution on claims he was intellectually disabled, saying his attorneys had not presented sufficient evidence to show Sparks was mentally disabled and had failed to raise such a claim in a timely manner.
In August, the 5th Circuit did grant a stay for Dexter Johnson, another Texas death row inmate who also claims he is intellectually disabled. In that case, the appeals court ruled Johnson had made a sufficient showing of possible intellectual disability that needed further review.

After his arrest, Sparks told police he fatally stabbed his wife and stepsons because he believed they were trying to poison him. Sparks told a psychologist that a voice told him "to kill them because they were trying to kill me."
Sparks' lawyers argued he suffered from severe mental illness and had been diagnosed as a delusion psychotic and with schizoaffective disorder, a condition characterized by hallucinations.
A psychologist hired by Sparks' attorneys said in an affidavit this month that Sparks "meets full criteria for a diagnosis of" intellectual disability.
"Without a stay of execution, it is likely that Texas will execute an intellectually disabled man," Seth Kretzer and Jonathan Landers, Sparks' appellate attorneys, wrote last month in court documents.
The Supreme Court in 2002 barred execution of mentally disabled people but has given states some discretion to decide how to determine intellectual disability. However, justices have wrestled with how much discretion to allow.

The Texas Attorney General's Office, which called the killings "monstrous crimes," said in court documents that Sparks' "own trial expert testified that he was not intellectually disabled."
His attorneys said that at the time of his trial, Sparks was not deemed intellectually disabled, but changes since then in how Texas makes such determinations and updates to the handbook used by medical professionals to diagnose mental disorders would change that.
On whether Sparks' jury was improperly influenced by the bailiff's necktie with an image of a syringe, the attorney general's office said the jury foreperson indicated she never saw the tie and had no knowledge of it affecting the jurors.
The attorney general's office said the testimony from the prosecution witness on prison classification was corrected on cross-examination.
"Sparks committed a heinous crime which resulted in the murders of two young children. He is unable to overcome the overwhelming testimony" in his case, the attorney general's office said in its court filing with the Supreme Court.
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Steinbeck's 'Of Mice and Men' and capital punishment

In 2002, the Supreme Court ruled that executing someone with an intellectual disability is a “cruel and unusual punishment,” prohibited by the Eighth Amendment.

Psychologists typically diagnose intellectual disability with tests of a person’s IQ and “adaptive behavior,” meaning the interpersonal and practical skills needed for everyday life. The tests examine a broad range of abilities, including whether the person can clothe and feed themselves, handle money, read and write, and whether they are gullible and easily led. But in Moore’s case, the state of Texas instead relied in part on a stereotype based — literally — on a tragic character from John Steinbeck’s Of Mice and Men, wrote Peter Aldhous at Buzzfeed.com.

In 2004, when ruling on the case of José García Briseño, convicted of murdering a sheriff, the Texas Court of Criminal Appeals took inspiration from a character in Of Mice and Men: Lennie Small, a lumbering migrant worker who understands neither the world around him nor his own strength, and ends up killing a woman who flirts with him.

“Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt,” Judge Cathy Cochran wrote in her opinion. But she questioned whether the scientific definitions of “mental retardation” should apply to the death penalty.

Calling the measurement of adaptive behavior “exceedingly subjective,” Cochran proposed seven questions, now called the “Briseño factors,” to help judge whether a convicted killer has the intellectual capacity to justify facing the death penalty. She did not specify exactly how they should be used.

In 2014, in an opinion written by Justice Anthony Kennedy, the court ruled that Florida was wrong to use a rigid cutoff of 70 IQ points or less. Today’s IQ tests, which are set so that 100 points is the average score, have a measurement error of three points or more. This means that any score should be considered as a range, not an absolute value. After that court decision, Florida reduced the sentence of convicted killer Freddie Lee Hall, who had scored 71 on one IQ test, from death to life in prison.

Now, the U.S. Supreme Court will hear the case of Booby James Moore, asking the justices to consider once again how to define intellectual disability.

In April 1980, 20-year-old Moore and two other men attempted to rob the Birdsall Super Market in Houston. Moore carried a shotgun, and one of his accomplices had a pistol. As an accomplice opened a bag to fill with money, Moore, wearing a wig and sunglasses, pointed his gun at two store clerks. When one of the clerks shouted, Moore shot the other in the head, killing him instantly.

Moore has been on death row for 36 years. His guilt is not in question, but his lawyers say he does not have the mental capacity to justify executing him for his crime.

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U.S. Supreme Court rules yet again on intellectual disability and capital punishment

The Supreme Court ruled last week that a Louisiana judge “unreasonably” denied a death row inmate a hearing to determine if he has an intellectual disability that would prevent him from being executed, reported Buzzfeed.com.

In 2002, the Supreme Court ruled in Atkins v. Virginia that our “evolving standards of decency that mark the progress of a maturing society” prohibits executing those with intellectual disabilities.
Kevan Brumfield pointed to evidence that his IQ is 75, “had a fourth-grade reading level, had been prescribed numerous medications and treated at psychiatric hospitals as a child, had been identified as having a learning disability, and had been placed in special education classes.”
At the time of his original trial, those with intellectual disabilities were still permitted to be executed.
Not every death row inmate has a hearing on their mental capabilities. In order to get a hearing on the issue, the condemned inmate has to raise “reasonable doubt” about the person’s intellectual capacity. A Louisiana court decided that Brumfield didn’t meet the requirements for a hearing to examine his mental capabilities.  The U.S. Supreme Court in Brumfield v. Cain called that finding “unreasonable.”
Last year, in Hall v. Florida the U.S. Supreme Court ruled that Florida's threshold requirement, as interpreted by the Florida Supreme Court, that defendants show an IQ test score of 70 or below before being permitted to have a hearing on intellectual disability was unconstitutional.
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Georgia executes intellectually disabled killer

The 5th Execution of 2015
Twice-convicted murderer Warren Lee Hill was executed in Georgia on January 27, 2015, according to the Georgia Department of Corrections, reported CNN.

Despite pleas by human rights groups and legal representatives who have argued that Hill's intellectual disability should have made him ineligible for the death penalty, Hill died by injection at the prison in Jackson, Georgia.

His time of death was 7:55 p.m. ET, said spokeswoman Gwendolyn Hogan. Hill declined to make a final statement, but requested a final prayer, Hogan said.

Hill's attorney slammed the U.S. Supreme Court, which declined to step in and grant a stay of execution.

"Today, the court has unconscionably allowed a grotesque miscarriage of justice to occur in Georgia," said Brian Kammer, Hill's lawyer.

"The intellectual disability community, which has strongly supported Mr. Hill's case for many years, joined his legal team in the belief that the Supreme Court would step in and prevent Georgia's flagrant disregard of the Constitution on behalf of the rights of people with disabilities," said Kammer.

He described the execution as "an abomination."

Federal law -- stemming from a 2002 Virginia case that went to the U.S. Supreme Court -- says executing intellectually disabled individuals violates the Eighth Amendment's ban on cruel and unusual punishment. But the ruling also allows states to define intellectual disability. In Georgia, that means attorneys for death row inmates have to prove mental impairment "beyond a reasonable doubt."

"This is the strictest standard in any jurisdiction in the nation," Kammer said.

Hill declined to request a special last meal, the Department of Corrections said. He was offered the institutional meal tray, consisting of shepherd's pie, mashed potatoes, red beans, cabbage relish salad, cornbread, sugar cookies and fruit punch.

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Georgia executes man who claimed attorney drunk during trial

The 34th Execution of 2014
Georgia death row inmate Robert Wayne Holsey, a prisoner who claimed an intellectual disability, was executed on December 9,2014, reported the Washington Post. In the hours leading up to his death, the Supreme Court denied his appeal, in which he argued he had not been given the opportunity to demonstrate his disability during trial — a violation of his constitutional rights. In his petition, he said the state’s standard “creates an unacceptable risk of wrongful execution of the intellectually disabled,” according to USA Today.
The state said Holsey had been fairly represented and that he was not disabled at the time of his trial, claiming he “understood complicated legal concepts, and had a sophisticated vocabulary.” His IQ has been measured around 70, his lawyers said.
Holsey also argued his original trial attorney was an alcoholic who had admitted chugging a quart of vodka one day during the murder trial. The attorney has since been disbarred.
“Robert Wayne Holsey is an intellectually disabled African-American man who was represented at trial by a chronic alcoholic who was more concerned about avoiding his own criminal prosecution than defending his client against the death penalty,” Brian Kammer, Hosley’s current attorney, said, according to NBC News.
Hosley, 49, was convicted in the 1997 murder of Baldwin County sheriff’s Deputy Will Robinson, whom he shot moments after a convenience store robbery, court documents said.
Before his execution at the state prison in Jackson, Ga., Tuesday night, Holsey addressed the officer’s father.
“Mr. Robinson, I’m sorry for taking your son’s life that night,” he said. “He didn’t deserve to die like that.”
Holsey added: “I hope you can find it in your heart to forgive me and my family.”
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Man with drunk attorney faces execution in Georgia

Robert Wayne Holsey is scheduled to be executed in Georgia on December 9, 2014 for killing a deputy sheriff in 1995. Holsey has a clemency hearing on December 8, according to WABE-FM in Atlanta.
According to Holsey’s current attorney, Brian Kammer, Holsey's trial attorney, Andy Prince was an alcoholic. Prince's alcoholism made presenting any reasonable evidence to the jury impossible, especially during the sentencing phase.
“Since [Holsey] was a child, he tested of an IQ about 70. That puts [him] in the mild range of intellectual disability. You know, his teachers were available to testify he had incredible difficulty in school.”
Aside from that, Kammer says evidence would have shown what he calls “the horrific conditions” of Holsey’s childhood.
“The home where he lived in Milledgeville was known to the neighbors as the torture chamber because of the way they observed his mother to treat him, which was to beat him merciless.”
None of this evidence was presented during Holsey's original trial.
Andy Prince ultimately was disbarred for embezzling clients’ money and later would be indicted.
The night before Holsey's death penalty phase, Prince turned the case over to another lawyer who had no experience in capital punishment cases.
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The Cautionary Instruction: The Eighth Amendment — a matter of human dignity

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 30, 2014
This week the U.S. Supreme Court struck down Florida’s strict IQ cutoff for determining intellectual disability and in turn eligibility for the death penalty.
In a 5-4 ruling in Hall v. Florida the court concluded that Florida’s rigid IQ threshold of 70 “disregards established medical practice” and creates the “unacceptable risk” that an inmate with intellectual disabilities might be executed, in violation of the Constitution.
“Our society does not consider this strict cutoff as proper or humane,” Justice Anthony Kennedy wrote.
“No legitimate penological purpose is served by executing a person with intellectual disability,” Kennedy wrote. “To impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.”
It is interesting that Kennedy would refer to the petitioner’s inherent right of “dignity.” The term is not frequently used in American jurisprudence and the term is even more difficult to find in Supreme Court opinions.

In fact, in Atkins v. Virginia the decision that banned the death penalty for the intellectually disabled, the only reference to dignity is the reference to a passage in Chief Justice Earl Warren’s 1958 opinion in Trop v. Dulles, “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”
In “Dignity Rights: Courts, Constitutions, and the Worth of the Human Person,” Erin Daly, a professor at Widener University Law School, wrote that the U.S. Supreme Court’s first mention of dignity as an individual right is a fleeting reference in Skinner v. Oklahoma in 1942. In a 1945 dissent, Justice Frank Murphy wrote, “The right was his … because he was a human being. As such he was entitled to all the respect and fair treatment that befits the dignity of man.”
In Miranda v. Arizona the Supreme Court wrote of oppressive interrogations as “destructive of human dignity.” In Roper v. Simmons, the court outlawed the execution of juveniles. The Court wrote, “The basic concept of the Eighth Amendment is nothing less than the dignity of man.”
The reason the Supreme Court was forced to entertain another case dealing with intellectual disability resulted from the Court’s failure to outline a method for determining intellectual disability in the Court’s 2002 decision in Atkins. In Atkins the court left it to the states to define the parameters of who qualifies as mentally disabled for purpose of capital punishment.
Ultimately the question is whether a defendant’s mental deficiency is so significant that he is unable to appreciate the wrongfulness of his conduct. If so, his execution would violate the Eighth Amendment ban on cruel and unusual punishment and violate his inherent dignity as a human being.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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Supreme Court rejects Florida's bright-line mental disability test

A Florida law that sets an IQ test score of 70 as a minimum in determining who's eligible for the death penalty is unconstitutional, the Supreme Court says. In a reversal of a state court's decision, the justices say Florida's rule ignores norms in the psychiatric profession, reported NPR. The opinion also cites the Eighth Amendment, which bars cruel and unusual punishment.
"Florida set a hard-line rule that the death penalty could not be imposed on convicted felons whose IQ is 70 or below," NPR's Washington desk says in its summary of the case.
The plaintiff, Florida death row inmate Freddie Lee Hall, was found to have an IQ score of 71. Arguing before the court in March, his attorney noted that all such tests have a standard risk of error.
The case centered on the question of whether absolute rules such as the one in Florida give enough protection that was established by an earlier case, Atkins v. Virginia. In that case, the justices said it was unconstitutional to execute people who are mentally disabled, but they left open the question of how to determine that condition.
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The Cautionary Instruction: U.S. Supreme Court examines bright-line mental disability rule

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
March 14, 2014
In 2002, the U.S. Supreme Court ruled that executing a mentally disabled (formerly referred to as mentally retarded) person violated the Eighth Amendment's ban against cruel and unusual punishment. In a case known as Atkins v. Virginia, the Supreme Court held that “death is not a suitable punishment for a mentally retarded criminal.”
The Atkins opinion also contains a loophole that renders it virtually meaningless in many cases—in the Court’s words “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”
Given this leeway to design their own methods for screening inmates, several states executed inmates that almost certainly were mentally disabled. Texas executed Marvin Wilson, a man with a “Full Scale I.Q. of 61″ who “required repeated instruction for doing even simple things, such as cutting the grass” and who “seemed to have a difficult time dressing himself properly.”
On Florida’s death row, the state says having an IQ higher than 70 categorically means an inmate is not mentally disabled and may be executed. In Hall v. Florida, 12-10882, recently argued before the U.S. Supreme Court 68-year-old Freddie Lee Hall is challenging the state's use of a rigid IQ cutoff to determine mental disability.

Florida is one of only five states that have set a bright-line rule for determining mental disability in capital cases. The others are Alabama, Kentucky, Virginia and Idaho, and the results there have been stark. Only two claims of mental disability have been successful in those states since 2002, according to a Cornell University study. That's about two percent, compared to a 28 percent success rate in the other 45 states.
In a brief asking the high court to hear the case, Hall's attorney, Eric Pinkard, noted that lower courts originally placed Hall’s IQ at 60. He argued that the state cannot set a "bright line" for measuring something even the IQ tests' inventors say is a moving target.
"We allow people to make their best case about why they're not eligible for the death penalty," Justice Elena Kagan said during the recent argument. "And essentially what your cutoff does is, it stops that in its tracks, as to a person who may or may not even have a true IQ of over 70, let alone it stops people in their tracks who may be mentally retarded."
"Could the state say somebody who is mentally retarded enough—so mentally retarded as not to be responsible and not to be subject to the death penalty certainly could not have pulled all of this [crime] off?" Justice Antonin Scalia said referring to Hall. "This is not a person who is that significantly mentally retarded."

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.
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The Cautionary Instruction: Supreme Court to revisit the death penalty and mental disability

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 25, 2013

The U.S. Supreme Court has agreed to define mental disability for the purpose of imposing the death penalty.

In 2002, Atkins v. Virginia established that subjecting a mentally disabled individual to capital punishment would violate the Constitution. But the court left it to the states to define the parameters of who qualifies as mentally disabled for purposes of capital punishment.

Ultimately the question is whether a defendant’s mental deficiency is so significant that he is unable to appreciate the wrongfulness of his conduct. If so, his execution would violate the Eighth Amendment ban on cruel and unusual punishment.

The new case, Hall v. Florida, No. 12-10882, arose from the 1978 murder of Karol Hurst, who was 21 and seven months pregnant when Freddie L. Hall and an accomplice forced her into her car in a supermarket parking lot. 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.

"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 is Halls’ state appeal. "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."

In a brief asking the high court to hear the case, Hall's attorney, Eric Pinkard, noted that lower courts originally placed Hall’s IQ at 60. He argued that the state cannot set a "bright line" for measuring something even the IQ tests' inventors say is a moving target.

"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," the brief states. "The state of Florida cannot invent out of whole cloth a bright line cutoff for determining mental retardation."

Cornell University law professor John Blume, an expert on capital punishment, told the Los Angeles Times he was pleased the court would clarify the law. "This appears to be an egregious case, someone who was mentally retarded for his entire life," he said. "Florida is among a handful of states that rely on a single cut-off score."

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SCOTUS to review mental disability under Atkins v. Virginia

The U.S. Supreme Court has agreed to determine what constitutes mental disibility under Atkins v. Virginia which abolished the death penalty for the mentally retarded in 2002.

The new case, Hall v. Florida, No. 12-10882, arose from the 1978 murder of Karol Hurst, who was 21 and seven months pregnant when Freddie L. Hall and an accomplice forced her into her car in a supermarket parking lot. She was found in a wooded area, where she had been beaten, sexually assaulted and shot, reported Adam Liptak of the New York Times.
 

Hall was convicted of murdering Hurst and sentenced to death.

 

The Atkins decision gave states substantial latitude in how to carry it out and gave only general guidance. It said a finding of mental retardation requires proof of three things: “subaverage intellectual functioning,” meaning low IQ scores; a lack of fundamental social and practical skills; and the presence of both conditions before age 18. The court said IQ scores under “approximately 70” typically indicate retardation.

 

A Florida law enacted not long before the Atkins decision created what Hall’s lawyers called an “inflexible bright-line cutoff” requiring proof of an IQ of 70 or below. Last year, the Florida Supreme Court ruled that Mr. Hall was eligible to be executed because his IQ had been measured at various times as 71, 73 and 80.

 

In a concurrence, Justice Barbara J. Pariente noted that “Florida, while not unique in its use of a bright-line cutoff score of 70, is not in the majority, although there is no clear national consensus.”

  

She added that the language of the Florida law and earlier decisions of her court required that Hall be put to death. “At some point in the future,” she added, “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.”

 

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PA Supreme Court affirms removal from death row

The Pennsylvania Supreme Court affirmed a lower court's decision to remove a man from death row because he is mentally challenged, according to UPI.

Connie Williams of Pittsburgh received the death penalty from an Allegheny County jury in 2002 for the 1999 first-degree murder of his wife Frances Williams. Williams stabbed his wife in the chest during an argument, then cut off her head, hands and feet.

In April 2010, a judge took Williams, who faced execution by lethal injection, off death row after his lawyers argued the death penalty amounted to cruel and unusual punishment. Prosecutors appealed the court's action.

The Pittsburgh Tribune-Review reported Tuesday justices on the supreme court found no errors in the lower court's judgment. They affirmed the decision in light of five prominent physicians' testimony that Williams had poor mental function and an IQ of between 70 and 75.

Public defender Lisa Middleman, Williams' lawyer during the sentencing phase of his trial, said her client's "lack of intellect was evident."

"The courts have determined intellectually disabled people are less culpable because they may not understand the consequences of their behavior much the same way that juveniles are seen as less culpable. We can find them guilty, we can put them in jail for the rest of their lives, but we don't kill them," said Marc Bookman, executive director of the Atlantic Center for Capital Representation in Philadelphia.

To read more: http://www.upi.com/Top_News/US/2013/01/23/Court-upholds-removing-man-from-death-row/UPI-53971358969519/#ixzz2IqIseXWS

The Cautionary Instruction: Three states, three approaches and three very different results

The Pittsburgh Post-Gazette/Ipso Facto
July 27, 2012

In 2007, the U.S. Supreme Court decided Panetti vs. Quarterman.   The court was asked to decide whether a condemned prisoner had a "rational understanding" of his crime and punishment for purposes of execution.

The court also addressed the retributive purpose of capital punishment, "it might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole [to] affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed."

Cases pending before courts in Texas, Oregon and Georgia point to the absurdity of death penalty litigation. In Georgia, the court stayed the execution of a man with an IQ of 69, not because he is mentally retarded, but because a state court wants to examine a newly implemented execution protocol. In Texas, the court said a schizophrenic killer is competent and his execution should proceed. In Oregon, where the governor granted a reprieve to all condemned killers, one man is demanding to be executed.

The Georgia Supreme Court on Monday stayed the execution of condemned killer Warren Hill two hours before his scheduled execution. The high court unanimously granted the stay to determine whether a recent change to Georgia’s lethal injection protocol violates state law.

Separately the court declined to hear Hill’s appeal challenging the state’s standard to determine whether Hill is mentally retarded and thus ineligible for execution.

In Texas, a county judge on Tuesday refused to order a psychiatric evaluation for Marcus Druery to determine whether the inmate is competent to be put to death. All parties agreed that Druery is schizophrenic.

Druery hears voices and believes he is being poisoned with feces-spiked food. His speech is illogical, and although he has been on death row almost six years, he insists that he is serving only a 10-month sentence.

Texas plans to proceed with Druery’s execution even though he refuses to take his medication and does not acknowledge his mental illness.

In Oregon, Governor John Kitzhaber is morally opposed to the death penalty. He granted everyone on death row a reprieve, at least while he is governor. However, not everyone agrees with Kitzhaber, including a recipient of his repreive.

Gary Haugen waived his appeal and volunteered to be executed. His attorney is arguing that in past cases the Oregon Supreme Court has adopted an 1833 U.S. Supreme Court decision authored by Chief Justice John Marshall that suggests inmates must agree to a pardon for it to take effect.

The trial court seems receptive to Haugen’s argument.

Three states, three different approaches and three very different results. The news this week points to the absurdity of a 33 state approach to capital punishment.

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The Cautionary Instruction: Three states, three approaches and three very different results

The Pittsburgh Post-Gazette/Ipso Facto
July 27, 2012

In 2007, the U.S. Supreme Court decided Panetti vs. Quarterman. The court was asked to decide whether a condemned prisoner had a "rational understanding" of his crime and punishment for purposes of execution.

The court also addressed the retributive purpose of capital punishment, "it might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole [to] affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed."

Cases pending before courts in Texas, Oregon and Georgia point to the absurdity of death penalty litigation. In Georgia, the court stayed the execution of a man with an IQ of 69, not because he is mentally retarded, but because a state court wants to examine a newly implemented execution protocol. In Texas, the court said a schizophrenic killer is competent and his execution should proceed. In Oregon, where the governor granted a reprieve to all condemned killers, one man is demanding to be executed.

The Georgia Supreme Court on Monday stayed the execution of condemned killer Warren Hill two hours before his scheduled execution. The high court unanimously granted the stay to determine whether a recent change to Georgia’s lethal injection protocol violates state law.

Separately the court declined to hear Hill’s appeal challenging the state’s standard to determine whether Hill is mentally retarded and thus ineligible for execution.

In Texas, a county judge on Tuesday refused to order a psychiatric evaluation for Marcus Druery to determine whether the inmate is competent to be put to death. All parties agreed that Druery is schizophrenic.

Druery hears voices and believes he is being poisoned with feces-spiked food. His speech is illogical, and although he has been on death row almost six years, he insists that he is serving only a 10-month sentence.

Texas plans to proceed with Druery’s execution even though he refuses to take his medication and does not acknowledge his mental illness.

In Oregon, Governor John Kitzhaber is morally opposed to the death penalty. He granted everyone on death row a reprieve, at least while he is governor. However, not everyone agrees with Kitzhaber, including a recipient of his repreive.

Gary Haugen waived his appeal and volunteered to be executed. His attorney is arguing that in past cases the Oregon Supreme Court has adopted an 1833 U.S. Supreme Court decision authored by Chief Justice John Marshall that suggests inmates must agree to a pardon for it to take effect.

The trial court seems receptive to Haugen’s argument.

Three states, three different approaches and three very different results. The news this week points to the absurdity of a 33 state approach to capital punishment.

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Georgia poised to execute man with IQ 69

Warren Lee Hill a man with an IQ of 69, his lawyers contend he is mentally retarded, is scheduled to die by lethal injection on July 18, reported Reuters. Attorneys for the Georgia man argued to the state's pardons board last week that executing the two-time murderer would be unjust because of his limited mental capacity.

In 1988, Georgia became the first U.S. state to enact a law banning the execution of mentally retarded defendants. But Georgia has perhaps the toughest standard in the nation for defining mental retardation, requiring proof "beyond a reasonable doubt," Richard Dieter told Reuters.
"I don't know of any other state that puts the burden on the defendant to show (retardation) beyond a reasonable doubt, the highest standard that there is in the judicial system," he said.

Mental retardation is generally defined as having a score of 70 or below on intelligence tests, Dieter said. Hill scored 69 on one intelligence test and in the 70s on others, according to court records.

Hill's attorneys have challenged Georgia's law in the federal courts, saying the "beyond reasonable doubt" standard is overly strict and conflicts with a 2002 U.S. Supreme Court ruling in Atkins v. Virginia that bans executing mentally retarded defendants.

To read more: http://www.chicagotribune.com/news/sns-rt-us-usa-execution-georgiabre86c195-20120713,0,1840716.story

On the Docket: Juvenile Life Without Parole

The Crime Report

March 20, 20012

Today (March 20), the U.S. Supreme Court will hear oral argument in two cases challenging sentences of life without parole for murders committed at the age of 14. If recent trends are any indication, the court will restrict the use of life without parole for juveniles, but will not eliminate the practice.

As violent crime rates soared in the late 1980s and early 1990s, juveniles became the target of ever increasing penalties. In 1995, Pennsylvania’s newly-elected Governor Tom Ridge called for a special legislative session on crime.

Ridge cajoled the legislature into overhauling the juvenile justice system with the mantra “adult time for adult crime.”

A fundamental change in the law made it easier to charge juveniles as adults. In fact, certain violent offenses require prosecutors to charge juveniles as adults.

Pennsylvania’s mandatory sentence of life in prison without parole for first degree murder has landed more than 450 people in prison for life for killings committed as juveniles—the most in the nation.

How did we get to the point in this country where about 2,600 inmates are serving life sentences for crimes committed as juveniles?

The answer is the "super-predator.”

The term was coined by John Dilulio, who in 1995 as a professor at Princeton University wrote an article entitled, "The Coming of the Super-predators.”

The article incited fear among policymakers across the country who believed that remorseless, gun-toting juveniles were being treated leniently and were therefore embolden to commit violent crimes without real consequences.

At the time, an ominous Seattle Times article included Dilulio’s warning of a growing teen population that would cause even more mayhem.

Dilulio argued that super-predators presented a serious problem for communities across the country.

"Each generation of crime-prone boys has been about three times as dangerous as the one before it," Dilulio wrote. Thus "the demographic bulge of the next 10 years will unleash an army of young male predatory street criminals who will make even the (gang) leaders of the Bloods and the Crips . . . look tame by comparison."

Juveniles were in the cross-hairs of policymakers nationwide as state after state enacted legislation to treat juveniles as adults in the criminal justice system. However, the next 10 years were nothing like Professor Dilulio predicted.

The Department of Justice’s 2006 National Report on Juvenile Offenders and Victims demonstrated that the rate of juvenile violent crime arrests consistently decreased since 1994, falling to a level not seen since at least the 1970s.

Just as concern about juvenile crime was beginning to grow, the U.S. Supreme Court restricted the application of the death penalty for some juvenile offenders.

In 1988, the Court outlawed the execution of juveniles under the age of 16. A year later the court affirmed the constitutionality of executing juveniles age 16 and 17. On the same day the Supreme Court also upheld the death penalty for the mentally retarded.

The law would not change for another 13 years.

In 2002, the court ruled in Atkins v. Virginia that executing the mentally retarded was cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Atkins launched a series of decisions that relied on evolving standards of decency as evidenced by a national consensus against excessive sentencing, particularly as related to juveniles.

In 2005, the Supreme Court struck down the execution of juveniles. In Roper v. Simmons, the Court held that it was cruel and unusual punishment to execute any person who was convicted of first-degree murder while under the age of 18.

In support of a "national consensus" against juvenile executions, the Court noted the decreasing frequency with which states were sentencing juveniles to death. At the time of the decision, 20 states had laws permitting the death penalty for juveniles, but only a handful of states had executed prisoners for crimes committed as juveniles.

Furthermore, in the 15 years prior to the Roper decision five states had abolished the death penalty for juveniles.

The Court explained that the primary criterion for determining whether a particular punishment violates society’s evolving standards of decency is objective evidence of a national consensus as expressed by legislative enactments and jury practices.

Gauging the acceptance or rejection of a particular criminal punishment requires an examination of both the work of the various legislatures and actual sentencing practices in courtrooms across the country.

The two cases scheduled for argument before the Supreme Court this week are Jackson v. Hobbs, No. 10-9647 and Miller v. Alabama, No. 10-9646.

Kuntrell Jackson is an Arkansas man who was 14 when he and two older co-defendants tried to rob a video store in 1999. One of Jackson’s co-defendants shot and killed the store clerk. Evan Miller is an Alabama prisoner who was 14 in 2003 when he and an older youth beat a 52-year-old neighbor and set fire to his home after an evening of drinking and smoking marijuana. The neighbor died as a result of the attack.

As Jackson and Miller’s cases are about to be argued before the Supreme Court, it is instructive to look back at successful consensus arguments made before the court in the last 10 years.

In Atkins, 30 states had banned the execution of the mentally retarded. In addition, during the modern era of the death penalty, only five states had executed an inmate with an IQ under 70, the unofficial threshold for mental retardation.

In Roper, again 30 states had outlawed execution for juveniles. More importantly, only three states—Oklahoma, Texas and Virginia—executed an inmate convicted as a juvenile of murder in the 10 years prior to the Roper decision.

In Graham v. Florida, the 2009 Supreme Court decision that banned life in prison without parole for juveniles who committed non-homicide offenses, there were 37 states that authorized life sentences for non-homicide offenses.

Nationwide, however, only 123 inmates serving life without parole were convicted of non-homicide offenses as juveniles. Nearly two-thirds were in Florida alone; the rest were scattered among 10 other states.

 

Unlike Atkins and Roper, today a significant majority of jurisdictions provide, at least theoretically, for life in prison without parole for offenders as young as 14-years-of-age.

The number of states is even more than the 37 states with laws on the books providing for life for non-homicide offenses prior to Graham. However, similar to Graham, few offenders in the U.S. are serving life without parole for offenses committed at age 13 or 14.

There are only 79 inmates serving life without the possibility of parole for killings committed at the age of 14 or under.

Prosecutors argue that the low number of persons serving life for offenses committed at such a young age is more reflective of how rare such killings are and not a national consensus against sentencing young offenders to life.

In fact, the amicus brief filed by the National District Attorney Association argues that it is illogical to suggest that there is a national consensus against such sentences. On the contrary, a majority of states have made it easier to sentence juvenile killers to life in prison, and at least three states—Florida, Nebraska and Louisiana—have recently considered, and rejected, efforts to allow parole for juvenile lifers.

The Supreme Court will likely move in the same direction it did in 1988 with juveniles and the death penalty. It will outlaw life without parole for juveniles 14 and under—and leave, for another day, the review of life without parole for all juvenile offenders.

To read more: The Crime Report

Pennsylvania Finally Gets Around to Addressing the Death Penalty and Mental Retardation

Nine years after Atkins v. Virginia, 536 U.S. 304 (2002), Pennsylvania is finally getting around to establishing a set of guidelines for determining if a defendant facing the death penalty is mentally retarded.

According to National Public Radio (NPR), in 2002 the U.S. Supreme Court ruled that applying the death penalty to someone with a mental retardation is unconstitutional, and called on states to craft their own guidelines on how to implement the decision.

In Atkins, the Supreme Court ruled that the mentally retarded are not able to communicate with the same sophistication as the average offender, as a result there is a greater likelihood that their deficiency in communicative ability will be interpreted by juries as a lack of remorse for their crimes. The mentally retarded typically make poor witnesses, being more prone to suggestion and willing to "confess" in order to placate or please their questioner.

In light of the "evolving standards of decency" that the Eighth Amendment demands the Court concluded that executing the mentally retarded with be cruel and unusual punishment.

Pennsylvania is finally getting around to the issue. The state legislature has considered similar measures in the House or Senate a number of times over the years.

This month the state Senate approved a bill that allows lawyers for a defendant in a capital case to request a hearing before the trial to determine if the defendant is eligible for the death penalty. The burden of proof would be on the defendant. If the judge rules in favor of the defendant, the case would move forward as a non-capital trial. In the case of a defendant who has already been sentenced to death, a similar procedure would take place.

David Harris, professor of law at the University of Pittsburgh School of Law explained that the lag time between the high court ruling and state action is not a-typical.

“As long as the state is not imposing the death penalty on anyone that might qualify as mentally disabled, [the lack of guidelines] isn’t a problem. But as soon as they get close to doing something like that, it becomes a problem,” Harris told NPR.

Because the state executes so few people, Harris calls the death penalty more symbolic rather than an actual issue. Nonetheless, he says a state must have clear laws that follow the U.S. Supreme Court’s decisions.

“Because if it doesn’t, it sets itself up for endless appeals and trips through the legal system which are just unnecessary and incredibly expensive,” Harris told NPR.

Pennsylvania has executed three people since 1976.  All three volunteered to be executed  There are currently 208 inmates on death row.

To read more:  http://www.essentialpublicradio.org/story/2011-10-31/legislation-prohibiting-death-penalty-mentally-challenged-moves-state-senate-8870

Erie: Alleged Child Killer Mentally Retarded?

Attorneys Argue Death Penalty Should Not Apply

In August, Aaron Noyer was charged with criminal homicide, sexual assault, kidnapping and burglary in the death of two-year-old Elizabeth Neimeic of Erie, Pennsylvania.

According to Dave Lohr of AolNews.com, crime scene investigators found Noyer's finger- and palm prints inside the Neimeics' home, authorities said. When Noyer was brought in for police questioning, he allegedly told police he had climbed through the girl's bedroom window to burglarize the home.

During the burglary, Noyer allegedly abducted Elizabeth and took her to a nearby area. There, next to a pair of railroad tracks, he removed her clothing and sexually assaulted and strangled her, authorities said. Afterward, Noyer threw the child to the ground at least twice, police said.

Noyer has an extensive criminal record. He was charged with arson as an 11-year-old. He has had a PFA filed against him for threatening a girlfriend. Now his lawyers say he is mentally retarded and therefore cannot face the death penalty.

Noyer filed a motion Tuesday, challenging Erie District Attorney Jack Daneri's intention to seek the death penalty. According to the Associated Press, Daneri says three aggravating factors qualify Noyer for the death penalty: the victim was younger than 12; the killing allegedly happened as part of another felony; and Noyer has a history of violent crime.

The Erie Times-News says Noyer's IQ has been tested at 57. His attorneys argue that he should be exempt him from execution under the U.S. Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the Court ruled 6-3 that executing the mentally retarded violates the Eighth Amendment's ban against cruel and unusual punishments. Although the Supreme Court did not establish a bright line rule regarding IQ and mental retardation, some suggest that an IQ under 70, may be indicative of mental retardation.

To read more: http://www.aolnews.com/crime/article/pa-police-make-arrest-in-toddlers-abduction-slaying/19578258