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.

They're telling me to choose, but there's only lies to choose from

UPDATED

Before joining the ACLU of PA in 2004, I cut my activist teeth in the PA anti-death penalty movement. Hanging around that movement, shocking behavior by district attorneys becomes commonplace, but I'm not sure that I've ever gotten used to it.

Yesterday several district attorneys from Pennsylvania attended a capitol news conference to introduce legislation regarding the death penalty and persons with mental retardation. Their rhetoric took them to a new low. There was so much smoke in the room that I'm surprised the sprinkler system didn't kick on.

The fight is this: In 2002, SCOTUS declared that executing persons with mental retardation is unconstitutional under the Eighth Amendment, but the Court left the decision on how to determine if a defendant is MR to the states. The DAs believe that the determination should be made after conviction by the jury. Disabilities advocates, the ACLU, the faith community, 90% of the state Senate, and Governor Rendell (per a 2006 interview with the Arc of PA) believe that the determination should be made before trial by the judge.

At yesterday's presser, the DAs and their legislative allies claimed that deciding if the defendant is MR before trial would cause two-to-three years of delays due to appeals by defense attorneys.

One small problem with that argument- it's a lie. Senate Bill 751, which includes a pre-trial determination by judge and passed the Senate, 45-3, on October 29, and House Bill 1370 would allow only the prosecution to appeal that decision, not the defense.

(vii) If the court enters an order under subparagraph (vi) finding that the defendant is a person with mental retardation, the Commonwealth may appeal as of right from the order under Pa.R.A.P. 311 (a)(9) (relating to interlocutory appeals as of right).

In other words, if the pre-trial procedure causes delays in the trial due to appeals, that delay will be caused by the DAs.

They threw around plenty of other misleading information and smoke screens. The DAs have been hanging their hat on this argument that homicide defendants will become "newly retarded" and there will be a massive increase in the number of defendants who claim to be MR.

Again, the pre-trial legislation shows this to be a straw man argument when it defines MR.

(3) The person's mental disability was present before 18 years of age as demonstrated by contemporaneous written records.

One central PA DA even invoked the memory of Philadelphia Police Officer Daniel Faulkner, even though no one is claiming that the defendant in the Faulkner case is mentally retarded.

I'm all for a public policy debate. It's a healthy function of a democratic society. But when one side in a policy debate uses misinformation and smoke screens to advance their cause, democracy loses, especially when it's coming from public officials.

UPDATED, 6:15PM: One might wonder why the DAs want this so badly. This question came up in a Senate Judiciary Committee meeting last session, and the primary sponsor of the good bill in the Senate speculated that they want the death penalty for plea bargaining. I think that's possible. I also think that they want the decision to be post-trial because it allows them to eliminate 35-40% of the population from the jury pool. How? If the decision on MR- and, thus, the death penalty- is made post-trial, only people who support the death penalty could serve on the jury. That's called a death-qualified jury. These juries tend to be more pro-prosecution and less likely to question people in authority, as death penalty opponents so often do.

Andy in Harrisburg