by Andrea Lyon
Monday, July 23 2012, Warren Hill is scheduled to be executed in Georgia. He was convicted of killing another inmate while serving a life sentence for killing his girlfriend, according to the Atlanta Journal-Constitution. This is despite the fact that Warren Hill is mentally retarded. Georgia was one of the first states to ban the execution of the mentally retarded; but there is a catch. The defendant bears the burden of proving he is mentally retarded beyond a reasonable doubt. This is the only state that requires the defense to bear this burden. Only the Board of Pardons and Parole can stop his execution now.
While a judge has found that Mr. Hill is mentally retarded, with an IQ of only 70, he didn’t find that fact beyond a reasonable doubt but rather by a preponderance of the evidence, which is the ordinary standard in civil matters, more likely than not. And it is on this technical basis that he will be executed. The Georgia Supreme Court voted four to three to reinstate Hill’s death sentence, and at the end of last year, the U.S. Court of Appeals in Atlanta ruled seven to four to uphold that death sentence even though the majority seemed to think it “unwise.”
In Atkins v. Virginia the United States Supreme Court held that it was unconstitutional to execute the mentally retarded, however the United States Supreme Court left it up to the states, both substantively and procedurally, to define and remove the mentally retarded from the pool of death-eligible capital defendants. In other words, the procedures and standards are details left to the states. No other state requires the defendant to bear this burden, either to prove mental retardation or anything else, just Georgia. History teaches us that these procedures and policies do not always remove the mentally retarded from the pool of those subject to execution, and this has proven to be the case here.
Intelligence quotient tests (IQ tests) measure intellectual functioning and serve as a good shorthand for understanding the scope of the problem. According to the Human Rights Watch report on mental retardation and the death penalty ,
the vast majority of people in the United States have IQs between 80 and 120, with an IQ of 100 considered average. To be diagnosed as having mental retardation, a person must have an IQ below 70-75, i.e. significantly below average. If a person scores below 70 on a properly administered and scored IQ test, he or she is in the bottom 2 percent of the American population…An estimated 89 percent of all people with retardation have IQs in the 51-70 range. An IQ in the 60 to 70 range is approximately the scholastic equivalent to the third grade.
In other words, executing a mentally retarded person with an IQ of 69 is like executing someone who functions at the level that a ten year old does. Mentally retarded people are significantly limited in what they are able to do, and in their ability to think ahead. A mentally retarded adult may have trouble driving a car, following directions, participating in hobbies or work of any complexity, or behaving in socially appropriate ways. He or she may have trouble sitting or standing still, or may smile constantly and inappropriately. For most mentally retarded people, limited adaptive skills make ordinary life extremely difficult unless a caring family or social support system exists to provide assistance and structure. Often, those persons facing a sentence of death usually come from extremely deprived conditions and have not received any such support, even if anyone recognized it was needed at all. They commonly come from poverty, are victims of or witnesses to violence in their homes and have few, if any, resources to cope with this lifelong condition. The environment in which they grew up is often riddled with crime, and they are easy prey for more cunning criminals who lead them into criminal activity. A mentally retarded person simply cannot see the world the way most of us are fortunate enough to be able to. For example, Morris Mason, whose IQ was 62-66, was executed in 1985 in Virginia after being convicted of rape and murder. Before his execution, Mason asked one of his legal advisors for advice on what to wear to his own funeral.
This is not to say that mentally retarded people are not responsible for their actions; that is a different inquiry altogether. But to inflict the ultimate sanction on a person who may live in a 52-year-old body like Warren Hill, but can only comprehend at the level of an eight-year-old child is cruel, and should be unusual. To do so on the basis of an extraordinarily high burden on the defense — one not required anywhere else in the United States — is even more so.
I can’t say it better than Richard Handspike, the spokesman for the victim’s family, has in an affidavit submitted to the board: “… I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death. I believe that if the system had evidence of such a disability in Mr. Hill, it should have taken steps to treat him accordingly and prevent his execution.” The Board of Pardons and Parole should commute Mr. Hill’s sentence to life.
Andrea Lyon is an Author, attorney and professor of law, DePaul University. Reprinted by permission of the author.
[quote]While a judge has found that Mr. Hill is mentally retarded, with an IQ of only 70[/quote]
[quote]To be diagnosed as having mental retardation, a person must have an IQ below 70-75, i.e. significantly below average. If a person scores below 70 on a properly administered and scored IQ test, he or she is in the bottom 2 percent of the American population.[/quote]
[quote]n other words, executing a mentally retarded person with an IQ of 69 is like executing someone who functions at the level that a ten year old does[/quote]
I think an argument can be made that an IQ of 70 is not necessarily mentally retarded, based on the above statements. See [url]http://www.commercialappeal.com/news/2012/jul/19/man-charged-in-2010-killing-of-henning-postal-is/[/url]
[quote]A West Tennessee man charged with killing two Henning postal workers in 2010 has two weeks to declare whether an insanity defense will be used, a federal judge told defense attorneys Thursday.
Lawyers for Chastain Montgomery have told U.S. Dist. Judge Jon McCalla that they believe their client is mentally retarded, which would make him ineligible for the death penalty.
Montgomery recently underwent an extensive mental evaluation at the request of the defense. McCalla said the results should be filed soon to move the case along.
“We’ve got to get this ready for trial,” McCalla said. “This case has number one priority.”
Defense attorney Michael Scholl said earlier that an evaluation of Montgomery as a youngster showed he had an intelligence quotient of 63 to 65. Generally an IQ below 70 is considered evidence of mental retardation.[/quote]
The real question is whether someone who has an IQ of 70 has the capacity to understand the consequence of their actions and be held fully responsible under the law for them. Setting an arbitrary IQ point is probably not the best way to make that determination.
[quote]The real question is whether someone who has an IQ of 70 has the capacity to understand the consequence of their actions and be held fully responsible under the law for them. Setting an arbitrary IQ point is probably not the best way to make that determination.[/quote]
You are certainly free to hold that opinion, but the state of Georgia apparently doesn’t agree w you. The point is each state is left the discretion to make its own standards, and some deem those with an IQ of 70 as sufficiently capable of understanding the consequences of their actions.
IQ tests were developed to predict academic performance—not general “intelligence” (whatever that is). Scores are largely a reflection of verbal ability and motor skills, and the ability to respond to test questions within a timed, structured setting.
There are people who, because of verbal abilities, may test well on an IQ test but have significant deficits in comprehension and reasoning—e.g., many with high functioning autism, or Asperger’s Syndrome. IQ scores can vary depending on which version of a test was used. So someone may be subject to the death penalty because they were tested on an older version of a test. IQ testing is not like testing for the presence or absence of a virus or for whether a woman is pregnant. There is not necessarily any qualitative difference between someone who scores 69 on and IQ test and someone who scores 71—but, whatever the cutoff, an IQ score can be the difference between who lives and who is executed.
The real question is whether we should be basing life-or-death determinations on arbitrary criteria, such as the score on an IQ test. The debate over whether IQ should determine who is subject to the death penalty detracts from the fundamental question of whether we should tolerate state-sanctioned murder at all.
Or to put it a different way, states will always come up with some standard, and there will always be people who will disagree with those standards as being too stringent. At some point one has to fish or cut bait – a standard is a standard is a standard unless there are mitigating circumstances. The better argument is just to do away with the death penalty altogether…
“The better argument is just to do away with the death penalty altogether… “
I agree, but don’t you believe this is a good example as to why?
“The real question is whether we should be basing life-or-death determinations on arbitrary criteria….”
It’s critical to base such determinations on specific criteria–pretty much, by definition, an arbitrary process–in order to assure “fair” treatment of everyone who ends up in such situations. The real question, in my opinion, is why do we kill anyone in the name of the state?
Knowing that a low IQ score could save me from execution, and I wanted to live; if I had any brains I’d make darn sure to score below 70 on the test they gave me!
This isn’t cynicism; this is about saving my skin.
jimt
[quote]Knowing that a low IQ score could save me from execution, and I wanted to live; if I had any brains I’d make darn sure to score below 70 on the test they gave me!
This isn’t cynicism; this is about saving my skin. [/quote]
I think this is a rather astute statement since it encompasses the realization that a person convicted and facing a long sentence may prefer not to live. I think it one of the more ironic parts of our prison system is that we will place prisoners on death row on suicide watch so that the state can have the satisfaction of executing them, or not, in our own good time. Talk about cruel and unusual punishment.
medwoman,
yes, if I was convicted of a horrific crime, for me it would be a near choice between preferring death or life imprisonment in most prisons, since I can think of few places on earth more hellish and depraved than many state prisons. The prisoners are often free to abuse each other (brutal beatings and rapes) in these places; often the only ticket out of abuse is to join a prison gang, where you may be forced to abuse other prisoners. Seems to me a difficult place to seek or earn any kind of spiritual redemption for your acts; it may be difficult to avoid becoming a more depraved person, which often happens. For those who are accustomed to or attuned to gang structures, prison may not seem so difficult or bad; for other temperaments such as mine such brutal authoritarian social structures are repulsive and abhorrent.
I think prisoners should be kept busy most of the day, preferably with useful work, so they are too tired mentally and physically to brew up trouble, which is bound to happen if they are sitting around bored most of the day. To keep this from being slavery, I think they should be paid something close to minimum wage; with most of the earnings available only after they are released from prison; and also work time ought to count toward earlier paroled release. For those with very long sentences or lifers, work proceeds can go to family or friends outside prison, or to better conditions inside prison (better cell, better tv and radio in cell, special meals, etc.), and more privileges while in prison.
[quote]It’s critical to base such determinations on specific criteria–pretty much, by definition, an arbitrary process–in order to assure “fair” treatment of everyone who ends up in such situations. The real question, in my opinion, is why do we kill anyone in the name of the state?[/quote]
Bingo!
[quote]I think prisoners should be kept busy most of the day, preferably with useful work, so they are too tired mentally and physically to brew up trouble, which is bound to happen if they are sitting around bored most of the day.[/quote]
Absolutely!
ERM says: [quote]I think an argument can be made that an IQ of 70 is not necessarily mentally retarded, based on the above statements. See http://www.commercialappeal.co…postal-is/
[/quote]
What is your argument?
Eric Gelber says: [quote]IQ tests were developed to predict academic performance—not general “intelligence” (whatever that is)[/quote]
Actually the first systematic test, written by the Frenchman Binet, was invented to detect mental retardation. In this country World War I was the first widespread test of intelligence and became the model for tests after the war – particularly the work of Thustone. David Wechsler’s first test was in 1939 and has been updated several times and remains probably the most commonly used general test of intelligence in the U.S. Intelligence is not a unitary concept and WAIS (Wechsler Adult Intelligence Scale) breaks it down into verbal and nonverbal and each one of those is broken down further.
Scales of academic ability are different than general tests of intelligence – they are often called tests of aptitude and measure stuff that is learned in school – spelling, reading, writing, math, etc. General intelligence tests are obviously highly correlated with aptitude tests but not perfectly.
JimT says: [quote]Knowing that a low IQ score could save me from execution, and I wanted to live; if I had any brains I’d make darn sure to score below 70 on the test they gave me! [/quote]
If I were the psychologist testing you I would administer you “effort tests” that would be aimed at understanding the motivation for your pattern of answers. Trying to “game” tests of this nature is not so easy. Psychologists who do this sort of testing (in particular where there is a lot to lose or gain – disability evaluations, jail sentences, death penalties) are very careful about trying to weed out the malingerers.
JimT says: [quote]I think prisoners should be kept busy most of the day, preferably with useful work, so they are too tired mentally and physically to brew up trouble, which is bound to happen if they are sitting around bored most of the day. [/quote]
How about we keep them busy learning skills that they can use rather than commit crimes? The problem with our prisons now is that we took away all the programs to teach them useful job skills (e.g. HVAC, auto repair, upholstery repair, are some of the work that inmates used to do in California but don’t anymore). They laid off most of the teachers too so inmates can’t earn GEDs or useful skills with computers, for instance.
rdcanning:Re: “If I were the psychologist testing you I would administer you “effort tests” that would be aimed at understanding the motivation for your pattern of answers. Trying to “game” tests of this nature is not so easy.”
Hmmm…so maybe only those with IQ over 130 are clever enough to game the test to score under 70!
But more seriously, it is good to know that there are tests that are difficult to game.
Also I agree that the programs to educate and teach useful job skills should be restored–how about the inmates having an opportunity to produce useful work (including the skilled work they were taught in prison or knew previously) to help offset the costs of these job skill programs in prison?
[quote]What is your argument? [/quote]
Apparently the state of Tennessee thinks that an IQ of 70 is sufficient intelligence for a defendant to be deemed not mentally retarded…
ERM: Right, wasn’t sure what you were suggesting.
rdcanning says: [quote]Actually the first systematic test, written by the Frenchman Binet, was invented to detect mental retardation. [/quote]
Not to dwell on it–but Binet was commissioned by the French government to devise a test to identify those of inferior intelligence who would need to be put in special schools. Thus, the dirct purpose was to predict academic performance. Here are a couple of links explaining this: http://iq-test.learninginfo.org/iq01.htm; http://psychology.about.com/od/psychologicaltesting/a/int-history.htm.
My point, however, was that the focus should be on whether we should tolerate the death penalty, not on drawing fine distinctions on who should be subject to execution based on inapt standardized tests.