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Jewish World Review June 24, 2002 / 14 Tamuz , 5762

Jonathan Turley

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Missing Ted Bundy | On Thursday, a Virginia prisoner, Daryl Atkins, achieved that status reserved for only a few people with uncommon diseases and unprecedented Supreme Court cases: he became a term onto himself like Grave's disease and Miranda rights.

Reversing a thirteen-year old case, the Supreme Court ruled that it is unconstitutional to execute someone who is "mentally retarded." Atkins will now become a household name; the very definition of someone too slow to execute. His case promises to complicate further a death penalty system already riddled with controversies and contradictions.

Under the new Atkins standard, the states will have to show that a defendant was not "mentally retarded" before they impose the death penalty, a standard that includes low intelligence. The Court noted that a person may be able to know the difference between right and wrong and be competent to stand trial but still be legally retarded for the purposes of the death penalty. It is their "limitations on adaptive skills" that makes them ineligible for the death penalty.

Jurors will now not only have to look into the heart of an individual to determine intent but look into his head to determine intellect. This standard creates tension with other standards in death penalty cases like the M'Naghten insanity test. A person is now exempt from execution under Atkins despite the fact that they are capable of distinguishing right and wrong. However, a person like Andrea Yates is subject to execution under M'Naghten because a jury found that she was capable of distinguishing right and wrong in drowning her five children. Likewise, the Court relies in part on the irresistible impulses of many low intelligence defendants as a justification for the exemption, a defense that has been expressly rejected as the basis for an insanity defense in many states. Apparently, it is better to claim to be clinically senseless than legally insane.

The determination of an individual's intellect remains an uncertain science. Under the common Wechsler Adult Intelligence Scales Test, a score of 100 is considered average intellectual ability. A person scoring below 70 is considered mentally retarded and would be presumably exempt from the death penalty. Atkins registered a 59 IQ.

At first blush, a cut off of 70 does not seem particularly high. Despite what one sees on the highways, studies indicate that no more than 3 percent of the population falls below this level. However, the percentage of such defendants in murder cases is likely to be much higher than the population at large.

Yet, the practical problem is not the actual number of low-intellect defendants but the number of self-professed low intellect defendants. After Atkins, there will be a line of prisoners appearing in federal court to prove that they have room temperature IQs. Since mandatory IQ testing was stopped in most states in the 1970s, an individual's IQ would be measured after he was arrested and facing potential capital punishment. The Wechsler test will now become a prisoner's version of the SAT for entrance into a class of death penalty qualified defendants. For even the most competitive prisoner, this is an occasion where you do not want to strive for membership in Mensa.

In the best of circumstances, there should be a long history of recorded educational and developmental problems to support a low IQ finding. Certainly, it would be difficult for a fully functioning adult with a high school education to fake an IQ without such a record. However, many criminals have a history of developmental and educational problems that may or may not be due to low intelligence.

The Atkins decision will further reduce the death penalty to a process of elimination. In a prior ruling, the Court barred the execution of minors. The Court has also barred the use of the death penalty in certain types of "garden-variety murder." States must find that the person was consciously and materially more depraved than the average murderer. Likewise, a number of the most heinous murderers have been able to negotiate themselves out of the death penalty by fleeing to another country. Ira Einhorn killed his girlfriend and then lived with her body stuffed in a locker for months. He remained a fugitive for over two decades until he was located in France. Like most of the world, France does not approve of the death penalty. Thus, the government agreed that Einhorn would not face the death penalty. Likewise, James Charles Kopp is accused of killing a doctor in New York who performed abortions was able to secure the same guarantee due to his capture in France.

Faced with these exemptions, prosecutors will now look for the Grade A, death-qualified prisoner. The ideal will be the "Ted Bundy Class" of executable prisoners: someone smart enough, old enough, and not living in France.

The problem is not with the principle behind Atkins but the increasing difficulty in guaranteeing a consistent and coherent death penalty system. It is time to consider the logic behind continuing the imposition of the death penalty under these conditions. States spend copious amounts of money on the execution of relatively few prisoners. Even with severe limitations on appeal, the average death penalty case takes 9 years to bring from conviction to execution. With some cases exceeding 20 years of appeals, our best hope for final justice is often arteriosclerosis.

Moreover, there remains little support for the theory that the threat of the death penalty seriously deters most murders. Both the nature of these culprits and their crimes belies the type of rational calculation used to support the deterrence theory. In addition, we have recently seen shocking cases of false convictions in death penalty cases that undermine the very legitimacy of our justice system. Finally, our dogmatic adherence to this form of punishment has placed us in the company of some of the world's most repressive regimes and caused continual international conflicts with our closest allies.

Given these increasing controversies and exemptions, the continued use of the death penalty raises question about our own system's "limitations in adaptive skills." Justice can be served with sentences of mandatory life without parole. It will not be served by a legal system of musical chairs where the last standing without an exemption is executed.

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JWR contributor Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Comment by clicking here.

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© 2002, Jonathan Turley