What exactly would you say to the nice IQ test?
Posted on 06/20/2002 9:49:48 PM PDT by JohnHuang2
The Supreme Court ruling yesterday that executing mentally retarded people is unconstitutional offered the states almost no guidance on who must be considered retarded and who gets to decide.
The decision will therefore spur vigorous legal activity on two fronts. In the courts, defendants accused or convicted of capital crimes will argue that they are mentally retarded. In the 20 states that currently allow the execution of retarded people, the legislatures will have to draft statutes establishing procedures to determine who is retarded.
Justice Antonin Scalia, in his dissent, noted that the mere possibility that the court would rule as it did yesterday had generated appeals from people on death row who had not previously argued that they were mentally retarded.
Despite questions about how the ruling will play out, defense lawyers hailed it as a landmark decision that limits the reach of capital punishment after years in which the Supreme Court's rulings had made it easier to carry out executions. The lawyers said they viewed the ruling as a ratification of a national consensus against executing the mentally retarded.
"After 15 years of absolute drought, this case gave the court the occasion to add its voice to the ongoing debate about the system being broken," said George Kendall, a staff lawyer with the NAACP Legal Defense Fund.
Polls show that most Americans oppose the execution of the mentally retarded, and state legislatures have moved steadily since 1986 to ban capital punishment for the mentally retarded. In 1989, when the Supreme Court held that executing the mentally retarded was not a violation of the Eighth Amendment, only two states, Maryland and Georgia, prohibited such executions. Since then, 16 more states have enacted bans.
"Every poll, and my experience with state legislatures, shows that supporters of the death penalty don't want it used for people with mental retardation," said James W. Ellis, a professor at the University of New Mexico law school who argued the case that led to yesterday's decision. "Supporters of the death penalty have a vision of who they want to be at least arguably within its scope. Supporters of the death penalty want it imposed on the most culpable."
But putting the ruling into practice will pose legal and moral challenges.
In the decision, the court seemed to endorse, at least in a broad sense, the statutes in the 18 states that allow the death penalty but prohibit executing the retarded. These states employ varying standards, though they generally refer to subaverage intelligence or particular I.Q. scores and to limitations in functions like social skills and the ability to care for oneself.
The statutes usually require proof that the disability appeared early in life. The common age cutoffs are 18 and 22.
The court's decision will apply retroactively and will effectively amend many of these statutes, which often prohibited executing only those mentally retarded people convicted after a given date. The decision will also give rise to litigation over whether an earlier failure to raise mental retardation bars doing so now.
Mr. Ellis said the existing statutes were reasonably similar and that other states were not free under yesterday's decision to make substantially different laws.
But even small differences in wording can have serious consequences, legal experts said.
Paul J. Morrow Jr., a public defender in Nashville, pointed to the provision in Tennessee's statute that requires that mental retardation manifest itself by the time the defendant is 18.
"If it manifests itself at age 19, he's suddenly more culpable?" Mr. Morrow asked.
The procedures employed in applying those standards vary as well.
The Arizona statute, for instance, requires that all defendants charged with capital crimes be screened by a court-appointed expert, who administers only an I.Q. test. The test is given at the beginning of the criminal proceedings.
A score of 75 or above means prosecutors can seek the death penalty; lower scores lead to further tests and a hearing.
But Arizona defense lawyers are boycotting the process, said Vikki Liles, a state public defender in Phoenix. They say it gives the state a tactical advantage and does not allow defense lawyers to develop either rapport with their clients or an adequate record.
"It is unconstitutional," Ms. Liles said of the statute. "It violates all sorts of rights. It's too early in the case. It often tells the state up front that there may be no mental health issues."
She continued: "I have some clients with I.Q.'s higher than mine. If you had a client who was a genius and committed multiple homicides, would you want a judge to know that?"
Others say that early adjudication of the question is proper and efficient.
"The better view is that you do it before trial, and you do it before a judge rather than a jury," Professor Ellis said. "It's cleaner, and it costs less."
Since the death penalty was reinstituted in the mid-1970's, 35 mentally retarded people have been executed, according to Amnesty International. Another group, the National Coalition to Abolish the Death Penalty put the figure at 44.
But that group and many legal experts say the numbers were conservative because many inmates are not tested for mental retardation before they are executed. Death penalty opponents say Texas leads the nation in executions of the retarded, followed by Virginia, Alabama, Florida and Louisiana.
While no one knows how many retarded people are on death row, experts estimate that about 10 percent of the 3,600 death row inmates are retarded.
Lawyers who have represented mentally retarded defendants who were executed, as well as the families of those people, said the ruling was bittersweet.
"It came two years too late," said Yolanda Cruz, 55, whose son, Oliver Cruz, 33, was executed in Texas in August of 2000 for the rape and murder of a 24-year-old woman, Kelly Donovan. Mr. Cruz, whose school records identified him as mentally retarded, had an I.Q. of 64 or 76, depending on the test.
Mrs. Cruz sobbed over the phone from her home in San Antonio. "Don't get me wrong," she said. "In a way I'm happy. I'm happy there's going to be mothers who won't go through what I went through. People are changing, people are thinking differently about the issue."
With only a few states executing the mentally retarded in recent years, Mr. Cruz's lawyer, Jeffrey Pokorak, said he believed Mr. Cruz may have been the last mentally retarded person executed in the country. (The Bexar County district attorney, Susan D. Reed, whose office prosecuted Mr. Cruz, had said that the evidence of Mr. Cruz's mental retardation was "conflicting.")
"It's the ultimate demonstration of the arbitrariness of the death penalty," Mr. Pokorak said, referring to the court's ruling, which came too late for Mr. Cruz.
Joshua Marquis, a district attorney in Oregon who is on the board of the National District Attorneys Association, said that while he supports the death penalty, he strongly opposes the execution of the mentally retarded.
"Rational prosecutors who support the death penalty do not want Lenny from `Of Mice and Men' executed," he said, referring to the retarded character in the John Steinbeck novel. "The problem with the Supreme Court's ruling is that it is arbitrary. It sets a bar which is very suspectible to being gamed and faked."
Mr. Marquis said he believed inmates would fake I.Q. tests so they would be found mentally retarded.
In his dissent, Justice Scalia made the same point.
"One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association to realize that the symptoms of this condition can readily be feigned," he wrote.
Legal experts and prosecutors said Justice Scalia's concern was misplaced.
Ruth A. Luckasson, a law professor at the University of New Mexico, said: "The important thing to remember is that it's a developmental disability that at a minimum appeared before adulthood, so generally what is required is a real inventory of the person's school records and past evaluative records. Usually this person's disability will have been documented from very early on."
Mr. Morrow, the Nashville public defender, said inquiries into developmental skills were generally made of third parties who did not even understand the reasons for the questioning.
"You are asking uncles and aunts," he said. "Most people have no clue why you are asking questions like, Could they deal with money? Could they make change? Could they understand directions?"
Intelligence tests, he said, are even more reliable.
"Of all the things you can't fake, one is I.Q., particularly where you have tests running over time," he said.
The most significant factor of all, he said, is the stigma.
"The last thing people want to be called, other than being a child molester, is being mentally retarded."
What a load of horse manure! You are going to see the "Retard Defense" used in every capital case in this country from now on. And by the way, perhaps it would be a GOOD THING to execute murderous retards- at least I don't see any downside!
I'm willing to bet I could convince an IQ test I am retarded. All I'd have to do would be figure out the correct answer and fill in something else. In fact, I bet I could come up with a score quite close to zero.
No jokes, please!
What the heck were the majority on this court smoking today?
What exactly would you say to the nice IQ test?
Just look at attempts to define obscenity in porn cases. Everyone is going to have a different view on who is mentally retarded, so lawyers are going to have a field day when questioning potential jurors, trying to get an O.J.-type of jury.
You've got their motives pegged to a T, friend.
Very good.
I've always thought that the thing that makes the courts different and special among the three branches is that they are specifically tasked with the job of finding the truth. In this case, the majority opinion explicitly abandons this approach in favor of a "societal consensus" or whatever the language was.
IMO, this language opens the door to a review at a later date when the "societal consensus" shifts yet again, as it will when the consequences of this decision play out for awhile, and all the absurdities of hardened criminal evil masquerading as the village idiot become clear. A whole new collection of laughing stock will emerge.
In the dissenting opinion, Rehnquist, Scalia and Thomas lay out the path for this reversal. The court punted in its search for the truth, and this issue will be revisited with different justices, at a time in which reality is back in vogue.
It's a shame that clear thinking is such a rare commodity on the Court.
The thing is, in the case on the news yesterday, the convicted killer had a low IQ, but I don't think he was technically retarded. I'm aware that this determination is based on IQ, but I think of mental retardation as being a condition like Downs Syndrome, and not merely having a low IQ. (IE: a person with a condition would have other mental/physical problems, a childlike outlook on life, etc.)
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