Executing the Mentally Retarded: The Night the Lights Went Out in Georgia #mentalhealth


FEB 13 2013, 11:54 AM ET
The justices of the U.S. Supreme Court have an opportunity to reinforce their historic ruling banning capital punishment for criminals with low IQs. They should take it.

supremeswoundedban.jpg

Reuters

The story of Warren Lee Hill, which is poised to reach its apex next week, is really the story of how vast the gulf is sometimes between the lofty pronouncements of the United States Supreme Court and the manner in which lesser functionaries of law and justice implement the letter and the spirit of those pronouncements. For in the case of Warren Lee Hill, we see nothing less than the state-sanctioned defiance of a recent Supreme Court mandate: Thou shalt not execute the mentally retarded.

Hill is a capital inmate in Georgia, long ago convicted of murder, who is scheduled to be executed next Tuesday. This is happening, at least for now, because Georgia officials have come up with a way to satisfy themselves that Hill is not mentally retarded. They have accomplished this psychological miracle by enforcing a restrictive state law which makes it virtually impossible for any capital defendant to ever prove his or her mental retardation. And they say they are entitled to apply this law because the Supreme Court said so.

Georgia is pressing ahead with the execution even though Hill’s lawyers have proven beyond a reasonable doubt that, with an IQ of 70, he has “significantly subaverage intellectual functioning.” The state is pressing ahead because Hill’s lawyers were only able to prove by a preponderance of the evidence that Hill’s mental retardation caused “impairments in adaptive behavior which manifested during the developmental period.” Not good enough, say Georgia officials. The second part of the test also must be proven beyond a reasonable doubt.

This is in conflict with the Supreme Court’s 2002 pronouncement, in a case styled Atkins v. Virginia, that the execution of mentally retarded murderers violated the Eighth Amendment’s prohibition against “cruel and unusual punishment.” Aware of the growing national consensus against such executions, and mindful of the rule that the Supreme Court must by obeyed, the state has gotten around the problem simply by claiming that Hill is not mentally retarded.

It’s one thing to require the state to prove the elements of a crime beyond a reasonable doubt. It’s another to require a mentally retarded individual to save his own life by applying such a standard.

Filing their briefs, Hill’s lawyers late last week asked the Supreme Court justices to spare their client and, in so doing, to fortify their ruling in Atkinswith blunt new language that requires officials in states like Georgia to give meaningful effect to the new constitutional prohibition. The justices should rush to embrace this desperate request. A right without a remedy is no right at all. And what Georgia — and other states — have done sinceAtkins is deny men like Hill (and Marvin Wilson, executed last summer in Texas despite an IQ of 61) the remedy they deserve.

Atkins v. Virginia

The Supreme Court did something in Atkins v. Virginia which it does too often in close cases — which, in fact, officials throughout the ages have done too often: It came up with a neat compromise that left for a future day the true ramifications of its choice. While it announced a ban against the execution of the mentally retarded, at the very same time, it gave recalcitrant states a map to getting around the ban. The broad stroke was widely hailed as a great victory for human rights, but the details doomed men like Marvin Wilson — and perhaps Warren Lee Hill as well.

The justices who signed onto the majority ruling in the case were acutely aware in Atkins that, by leaving the key question to the states, they would enable officials in some jurisdictions to continue to execute mentally retarded defendants whom other states would spare. Justice John Paul Stevens wrote:

To the extent there is serious disagreement about the execution of mentally retarded offenders it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, “we leave to the State[s] the task of developing ways to enforce the constitutional restriction upon its execution of sentences.”

In other words, the court in Atkins was ready to extend full Eighth Amendment protection in “easy” cases of mental retardation, but not in “hard” cases where there might be “serious disagreement” between experts about the level of retardation. This cop-out was part of the ruling, even as the court acknowledged that “some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.” Justice Stevens continued in this vein:

Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.

Despite its grand constitutional claim, Atkins allowed states to continue to manipulate the results of “close” capital cases of mental retardation by trotting out their medical experts and their psychiatrists, in order to conclude that the condemned was not so mentally retarded as to fall within the protections of the Eighth Amendment. This scenario resulted last year in theshocking execution of a Texas man “who could not handle money or navigate a phone book, a man who sucked his thumb and could not always tell the difference between left and right, a man who, as a child, could not match his socks, tie his shoes or button his clothes.”

To its eternal shame, placing federalism above core protections in the Bill of Rights, the Supreme Court turned its back on Marvin Wilson, that man in Texas. It should not turn its back on Warren Hill. By requiring him to prove his mental retardation beyond a reasonable doubt, and by dismissing the substantial proof of retardation he did establish, Georgia took cynical advantage of the court’s deference in Atkins. The Supreme Court should put to right this ongoing injustice. It should no longer countenance such continuing disrespect.

Hill v. Humphrey

Georgia argues in this case that the Supreme Court should just leave it alone. It argues that what its officials have done in the Hill case — the many hearings, the many layers of appellate review, the culling of experts on the topic of Hill’s mental status — is precisely the sort of due process the justices in Atkins intended for them to undertake. Georgia’s relevant mental evaluation standards are quite liberal, the state lawyers argue, especially in comparison with those of other states. “Georgia’s burden of proof as to claims of mental retardation is not unconstitutional,” the state bluntly told the court.

And then Georgia reminded the justices of the oversight scenario they had purposefully chosen to avoid in Atkins: creating a national constitutional rule that would protect individual defendants, but that would also run into the types of federalism concerns that so disturb this Supreme Court. Even if the court “chooses to retract that portion of Atkins leaving the task of developing procedures to the States,” the state lawyers wrote, “this Court will be in the position of setting out detailed guidelines to ensure what it deems constitutional is met as there are many variables in each state’s statute.”

Hill’s lawyers aren’t asking the Supreme Court to force Georgia to roll over. They instead are asking the justices to issue a ruling that ensures that no state may require a capital defendant to prove his or her mental retardation using the most onerous “reasonable doubt” standard. The “substantive protection” the court promised in Atkins, the defense argues, is “eviscerated” by a uniquely harsh state law with such a requirement. “Georgia stands alone among American jurisdictions,” Hill’s lawyers write, “in denying the protection of Atkins v. Virginia to capital defendants who probably have mental retardation in fact.”

The heart of their case — and perhaps the best argument against the cruelty of the Georgia statute — is that the nature of these psychological cases makes it easy for a prosecutor to generate “reasonable doubt” of mental retardation simply by offering up an expert who will cast that doubt. “Because of the detail and complexity of the information and expert judgments that enter into the diagnostic process,” Hill’s lawyers remind the court, “a prosecutor can almost always hope to fashion some argument for reasonable doubt if the issue goes to trial — particularly in the context of an ugly crime.”

It’s one thing to require the state to prove the elements of a crime beyond a reasonable doubt. It’s another thing to require a mentally retarded individual to bear the burden of saving his own life by such a standard. Justice Sonia Sotomayor, the only former trial judge on the court, surely will appreciate that distinction. Whether Justice Anthony Kennedy does as well will likely determine Hill’s fate. It was Justice Kennedy who voted for the Atkins ban and who also wrote the opinion in the more recent ban on the execution of juvenile murderers. He’s the critical fifth vote Hill would need, both to stay the execution and to extend the promise of Atkins.

The problem isn’t going to solve itself. And the Supreme Court is the only means of help. The Georgia Supreme Court, Hill’s lawyers assert, “has already made its intentions clear: it will not disturb the reasonable doubt standard in mental retardation cases ‘unless the Supreme Court or the United States so requires at some future date.'”

That day is here. If it is not Hill it will be another man, in another state, who is mentally retarded but unable to prove so to the satisfaction of a state judge because of some arbitrary legal standard. There is no standing still on Atkins. The court must either go forward or go back. And it must do so quickly.

 

#India- SC appalled by ‘lynching-like’ #deathpenalty


By , TNN | Dec 12, 2012,

SC appalled by 'lynching-like' death penalty
The Supreme Court on Tuesday expressed its deep distress and displeasure while censuring a “lynching-inspired” Tamil Nadu trial court for awarding death penalty to a person accused in a dacoity-cum-murder case as a deterrent to eliminate crime from society.

NEW DELHI: The Supreme Court on Tuesday expressed its deep distress and displeasure while censuring a “lynching-inspired” Tamil Nadu trial court for awarding death penalty to a person accused in a dacoity-cum-murder case as a deterrent to eliminate crime from society.

“The trial judge, while showing special reasons, referred to laws prevailing in Arab countries like imposing sentence of ‘slashing’, ‘beheading’, taking organ for organ like ‘eye for eye’, ‘tooth for tooth’ and says these are developments of criminal jurisprudence,” said a bench of Justices K S Radhakrishnan and Dipak Misra, surprised by the special knowledge of the trial judge in criminal jurisprudence.

It was another matter that the apex court found no cogent evidence against the accused and acquitted him of all charges in the case, though he had already undergone eight years imprisonment and stayed under the shadow of gallows for some time till the Madras High Court commuted the sentence to life imprisonment.

What riled the apex court bench was the inspiration behind the trial court judge imposing capital punishment on Omprakash, who was allegedly part of a dacoit gang from northern India engaged in a series of crimes in Tamil Nadu. The trial judge had based its decision on his special knowledge about legal sanction by American courts to “lynching” and the “eye-for-eye” and “tooth-for-tooth” punishment institutionalized in some Arab countries.

The trial judge also said he was of the opinion that “the imposition of death sentence under Section 396 of Indian Penal Code is the only weapon in the hands of judiciary under the prevailing law to help eliminate crime”.

Worse, the trial court appeared to give vent to its parochialism by talking about gangs from Haryana travelling 2,000 km to commit crime in “our state (TN)” and justifying imposition of death penalty to “create fear among criminals who commit such crimes”.

First of all, the apex court put the record straight by reminding one and all that in Indian jurisprudence, life sentence was the norm and death sentence an exception. Justice Radhakrishnan, writing the judgment for the bench, said, “The sessions court has gone astray.”

He added, “We are surprised to note the ‘special reasons’ stated by the judge. We fail to see why we import the criminal jurisprudence of America or Arab countries to our legal system. The trial judge speaks of sentence like ‘lynching’ and described that it has attained legal form in America.”

Amazed by the ignorance of the sessions judge, the bench said, “Lynching means kill someone for an alleged offence without legal trial, especially by hanging. The trial judge failed to note that the constitutionality of death sentence came up for consideration before the US Supreme Court inWilliam Henry Furman vs State of Georgia, which involved three persons under death sentence. The court held death penalty to be cruel and unusual punishment in violation of the eighth and tenth amendments.”

The apex court said the trial judge’s inclination to bring in alleged system of lynching to India and to present is as a special reason was “unfortunate and shows lack of exposure to criminal laws of this country”.

“We are also concerned with the question whether the criminals have come from 20 km away or 2,000 km away. The trial judge says that they have come to ‘our state’, forgetting the fact that there is nothing like ‘our state’ or ‘your state’. Such parochial attitude shall not influence or sway judicial mind. The judge also further states, since the accused persons had come from a far away state, about 2,000 km to ‘our state’ for committing robbery and murder, death sentence should be imposed on them. The judge has adopted a very strange reasoning, needs fine tuning and proper training,” the bench said.

Taking exception to the trial judge’s logic that death sentence was the only weapon to eliminate crime, the bench of Justices Radhakrishnan and Misra said, “Judiciary has neither any weapon in its hand not uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the Constitution and laws, following the settled judicial precedent.”

It added, “A judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judge’s greatest strength is the trust and confidence of the people, whom he serves. We may point out that clear reasoning and analysis are the basic requirements in a judicial decision.”

The bench asked the National Judicial Academy and State Judicial Academies to educate judicial officers in this regard.

dhananjay.mahapatra@timesgroup.com

 

Why Nuclear Power Is Not the Answer to Global Warming


AlterNet / By Christian Parenti

There is no “nuclear renaissance” and there won’t be: it just doesn’t make sense economically.
April 4, 2012

Despite the triple meltdown at Fukushima—which has driven tens of thousands of Japanese from their homes, cast radioactive fallout across the U.S., and will likely cost the Japanese economy ¥50 trillion, or $623 billion—many desperate Greens now embrace nukes. They include Stewart Brand and George Monbiot. What drives these men is panic—a very legitimate fear that we will trigger self-fueling runaway climate change.

Part of this green embrace of the atom is a macho performance of seriousness. Nuke hugging demonstrates a technophilic resolve, manly determination to muscle through. The semiotics of the green nuke huggers’ message is clear: “I am a man, an adult, ready to do whatever it takes to fight climate change. I have put aside childish utopianism and even endorsed this most dangerous, capital intensive, and war-tainted of technologies: atom smashing.”

So far, so very brave.

However, back in the real world, nukes face nearly insurmountable economichurdles. Never mind the issue of safety, economic factors—capital costs, construction cost, availability and prices of special metals and engineering expertise, and profitability—are the real issue. Economics will determine the future of atomic power—or rather, already have. And here is the takeaway: there will be no nuclear future.

For more than a decade, the atomic power industry and many in government have promised us a “nuclear renaissance.” A whole new fleet of atomic power plants, new high-tech third and fourth generation reactors, are supposed to be coming online.

Well, where is it? Climate change is kicking in; science tells us we need to make drastic cuts starting now. If nukes are to ride to the rescue, we need a few on the horizon now.

But the new fleet of reactors has not been built and won’t be, because Wall Street won’t fund them. The only way nukes get built is with real or de facto socialism. The public sector has to pick up the tab, either during construction or after the fact, when bankrupt utilities get bailed out.

The first wave of nuclear reactor construction peaked after the Arab oil embargo of 1973. The logic was geostrategic energy security, not cost-efficient electrical production. Japan and France built the most. Then came the Three Mile Island accident. Suddenly, the industry was subject to a more rigorous safety regime. With that costs rose precipitously, wiping out 90 percent of projected profits of theU.S. nuke industry. Hundreds of planned plants in the United States were canceled. In the United States and the United Kingdom, cost overruns on nuclear plants helped bankrupt several utility companies.

In February 2002, the Bush administration tried to jump-start nuclear construction with its “Nuclear Power 2010 Program,” a package of subsidies and streamlined planning procedures. Obama has continued this with more generous support for the nuclear industry. It was expected that these incentives would lead to at least one “Generation III+” unit being operational by 2010. That has not happened.

Work has finally begun on a two-reactor plant in Georgia. But already there are conflicts between the utility, Southern Company, and the Nuclear Regulatory Commission. Moreover, this project is going forward only because the utility, operating on a cost-plus basis, can pass on to rate payers all of its expense overruns. This is because the Southeast power market was the only U.S. region never deregulated.

In Western Europe, nuclear economics are also a mess. Only two “Generation III+” reactors are under construction. The plant closest to completion is the 1,600-megawatt European Pressurized Reactor (EPR) at Olkiluoto 3 in Finland. It was scheduled to take four years and cost about $5 billion. But now construction will take at least eight years and is 68 percent over budget, at a projected final cost of $8.4 billion.

The other EPR under construction is in Flamanville, France. It began in 2007 and is now two years late and at least 50 percent over budget. In the best case scenario, it will open in 2012, also massively over cost.

China has also cut back its nuke program, based almost entirely on the old generation two style plants. If the Chinese nuke program is fully built out the share of nukes in their overall power mix will go from less than 2 percent to less than 5 percent of all Chinese power.

Meanwhile, the U.S. Department of Energy gives 2021 as the earliest possible date for a fourth-generation nuclear plant to open. No American nuclear plant has yet been built on time or within budget, so the forecast may be rather optimistic.

An authoritative study by the investment bank Lazard Ltd. found that wind beat nuclear and that nuclear essentially tied with solar. But wind and solar, being simple and safe, are coming on line faster. Another advantage wind and solar have is that capacity can be added bit by bit; a wind farm can have more or less turbines without scuttling the whole project. As economies of scale are created within the alternative energy supply chains and the construction process becomes more efficient, prices continue to drop. Meanwhile, the cost of stalled nukes moves upward.

The World Watch Institute reports that between 2004 and 2009, global electricity from wind (not capacity, but actual power output) grew by 27 percent, while solar grew by 54 percent. Over the same time, nuclear power output actually declined by half a percent.

What would a nuke build out really cost? Mark Cooper, senior fellow for economic analysis at the Vermont Law School, has found that adding 100 new reactors to the U.S. power grid would cost $1.9 to $4.1 trillion, and that would take at least a decade to do.

In a comparative analysis of U.S. states, Cooper found that the states that invested heavily in nuclear power had worse track records on efficiency and developing renewables than those that did not have large nuclear programs. In other words, investing in nuclear technology crowded out developing clean energy.

Only when clean technologies—like wind, solar, hydropower, and electric vehicles—are cheaper than other options will the world economy make the switch away from fossil fuels. Right now, alternatives are slightly cheaper than nukes, come on line faster, and are growing robustly.

Nuclear power is not only physically dangerous—it is also economically wasteful. If the nuke huggers are so brave and serious they must begin to explain why, after a decade of billions in subsidies being on offer, there is no wave of construction underway. If the nuke renaissance is to begin, who will fund it? And who will build it in time to stave off climate tipping points? How long will it take? Thus the quip “Atomic power is the fuel of the future”—and always will be.

We have already wasted a decade on this blather and hype. Being manly is not enough. Realism is also required.

Christian Parenti is the author of “The Freedom: Shadows and Hallucinations in Occupied Iraq” (New Press) and a visiting fellow at CUNY’s Center for Place, Culture and Politics.

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