2011 in Review: The death penalty for people with intellectual disability

For more than a decade, the ACLU of Pennsylvania has advocated to truly end the execution of people with intellectual disability, formerly known as mental retardation, in our state. Even before the U.S. Supreme Court's decision outlawing the practice in Atkins v. Virginia in 2002, we pushed for the passage of legislation to end this grotesque practice. 

Since that case, we have worked with disability advocates throughout the state and with members of the legislature to implement a procedure that would require a judge to decide before trial that a person has ID and cannot be executed.  On four separate occasions, including earlier this year, the state Senate passed legislation with this procedure with overwhelming bipartisan support, but the bill has never made it through the state House.

Last week, the long struggle to implement the Atkins decision in the commonwealth took a turn for the worse. In a case out of Lancaster County, the Pennsylvania Supreme Court implemented a procedure for trial courts to follow when a defendant in a capital case files a claim of intellectual disability (ID).

• The jury will rule on the claim
• The jury will hear the claim after it has convicted the person of first degree murder
• The burden is on the defendant to prove that he has ID
• The jury's ruling in favor of the defendant must be unanimous

So what does this mean? This means that all jurors in these cases must be what's known as "death qualified," meaning that they must be willing to implement the death penalty.  Research shows that death qualified jurors are more likely than non-death qualified jurors to trust prosecutors and police and are less likely to trust mental health experts.

As one friend in the capital legal world told me, the Supreme Court's ruling is what a court does if it wants to nullify the Atkins decision in Pennsylvania. People with ID who are on trial for their lives are more likely to end up on death row as a result of this ruling.

The fight is not over. There is no doubt that this ruling will be challenged in federal court, when an opportunity presents itself. But it is a reminder that the courts are not always our friend. It's a reminder that sometimes our issues must be resolved at the legislature. Former Governor Ed Rendell supported our position. The state Senate supported our position. But we couldn't get it through the House, and now we're left with a horrendous ruling from the state Supreme Court.

And this is why we need your support. Please consider making a year-end, tax-deductible donation to the ACLU of Pennsylvania because freedom can't protect itself.