Swiss-Cheese Approach to Death Penalty

On Thursday, Virginia prisoner Daryl Renard Atkins achieved that status reserved for a few people with uncommon diseases and unprecedented Supreme Court cases: He became a term unto himself, like Graves’ disease and Miranda rights.

Reversing a 13-year-old case, the U.S. Supreme Court ruled in Atkins vs. Virginia that it was unconstitutional to execute a “mentally retarded” person. This case promises to complicate further a death penalty system already riddled with controversies and contradictions.

Under the new Atkins standard, states will have to show that a defendant is not mentally retarded--a standard that includes low intelligence--before they impose the death penalty. The court noted that defendants 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 make them ineligible for the death penalty.

Jurors will now not only have to look into the heart of an individual to determine intent but also look into his head to determine intellect. This standard creates tension with other standards in death penalty cases, such as the M’Naghten insanity test. A person can be exempt from execution under Atkins despite the fact that he or she is capable of distinguishing right and wrong. However, Andrea Yates, for example, 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.

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

At first blush, a cutoff of 70 does not seem particularly high. Studies indicate that no more than 3% 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.

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. Because mandatory IQ testing was stopped in most states in the 1970s, an individual’s IQ will be measured only after he is 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-exempted defendants. This is an occasion where you do not want to strive for membership in Mensa.

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 heinous murderers have been able to negotiate themselves out of the death penalty by fleeing the country. Ira Einhorn killed his girlfriend and then lived with her body stuffed in a locker for months. He remained a fugitive for more than two decades until he was located in France.

Like most of the world, France does not approve of the death penalty and will not extradite in such cases. Thus, the state prosecutors promised that Einhorn would not face the death penalty.

Likewise, James Charles Kopp, accused of killing a doctor in New York who performed abortions, was able to secure the same guarantee after 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 with the increasing difficulty in guaranteeing a consistent and coherent death penalty system.

We need to consider the logic behind continuing the imposition of the death penalty under these conditions. Given the increasing exemptions, the continued use of the death penalty raises questions 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 one standing without an exemption is executed.