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.

 

NAC Recommends ONE HOLISTIC Disability Law & Full Legal Capacity # Goodnews


English: A collection of pictograms. Three of ...

English: A collection of pictograms. Three of them used by the United States National Park Service. A package containing those three and all NPS symbols is available at the Open Icon Library (Photo credit: Wikipedia)

NAC for Tax Benefits to Employers of Disabled Persons

New Delhi, Jun 10 (PTI) The National Advisory Council, chaired by Sonia Gandhi, has recommended giving tax benefits to private employers of persons with disabilities, in a set of measures to enable their greater participation in the workforce.

Giving its suggestions on the draft Rights of Persons with Disabilities Bill (RPDB), the NAC has also suggested extending subsidies and financial incentives for starting small scale income generation activities by household of persons with disabilities (PWD).

“RPDB should also mandate support to families with PWDs themselves in engaging in or accessing gainful employment, including financial and tax benefits to private employers of PWDs,” the advisory panel said in a recent communication to the government.

It has pitched for stronger anti-discrimination provisions to lower barriers to their productive employment, thus enabling greater participation of PWD in the workforce.

Voicing concern over non-recognition of full legal capacity of PWDS, the NAC has recommended that the Law Ministry review all statutes in order to include an acknowledgement of full legal capacity for such persons.

Noting that there were multiple laws that provide and protect the rights of PWDs, the NAC has suggested merging them into one holistic law to avoid inconsistencies and duplication.

At present the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act; National Mental Health Act; Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act; and The Rehabilitation Council of India Act govern issues related to PWDs.

The NAC also recommended that families with disabled members should be given higher weightage during identification of poor households and surveys for BPL and food insecure households.

It also wanted the RPDB to guarantee preferential access to households with PWDs to all poverty alleviation and social security programmes, including social security allowance.

The panel also suggested setting up a single National Disablities Commission and State Disability Commission to replace diverse institutions concerned with the rights of PWDs.

“This would save costs, prevent the creation of a large bureaucracy, and above all provide a single window of contact at the central, state or district level for PWDs to access their rights and secure redressal of their grievances,” it said.

The NAC also found “grave” the provision of upto six months imprisonment and Rs 50,000 fine for persons violating the rights of PWDs.

“The penalties needs to be more specific and cannot be for blanket violation of all entitlements under the bills,” the advisory panel said.

Woman who helped 9-yr-old mentally challenged girl testify against her rapist, recounts the challenges she faced


Bapu Deedwania and Sunil Baghel 

June 03, 2012

MUMBAI : When the Mahad police, first landed at her home with their request, Poornima Khade hesitated. The headmistress of a school for special children in the area, had no delusions that the job – helping a 9-year-old girl with Down’s Syndrome tell the court that she had been raped – would be easy.

Over seven years later, as the Bombay High Court upheld a local court’s order convicting the accused, Khade, now 36, is glad that she agreed. “I feel that whatever I have learnt has been of some use and has got this child justice.”

In December 2005, the victim had conveyed to her family that her neighbour Niranjan Jadhav, in their Managaon home (Raigad district), had raped her. The victim suffers from speech and hearing disability and, while Jadhav (then 53 year old) was arrested immediately, medical reports did not confirm rape.

That’s where Khade came in. The police wanted her to work with them and use her expertise with mentally challenged children to decipher what the victim said for the court.

“Our Suyog Special School for Mentally Deficient Children was the only such school at Mangaon,” said Khade, who holds a Diploma of Special Education in Mental Retardation.

‘I had to seek my mom’s help to deal with the case’

Experience had taught Khade that such children would not easily accept a stranger into their zone of comfort. “I was afraid that this would go against her in court.”

The police were helpful, she added. “But, they were finding it difficult to understand what she was saying and the accused said the girl was lying. The PSI handling the case told me that we had to ensure that the girl got justice.”

Trial began at the Alibaug Sessions Court on June 6, 2006. Khade, who was in Mumbai for training, took the first available train home. The FIR, she adds, had graphic details of the assault. “I was shocked. The accused was old enough to be her grandfather and he had committed such a heinous act.”

“I was anxious and nervous about how to broach the conversation with the child.” She says that not having experienced sexual intimacy herself she wasn’t sure about how to ask the girl to detail the sexual assault she had suffered. “I turned to my mother.”

‘Judge promised victim ice-cream if she answered questions’

The first time she saw the victim, Khade remembers, the girl was clinging to her mother.

Khade said that the court granted her request for time to get familiar with the child. “Over a few hours I asked her general questions: about her school, home, parents, play, toys, ice-cream. The judge who was supportive said he would treat her to an ice-cream if she answered the questions.”

Eventually Khade started with the uncomfortable questions. “I broke them into small parts, asking her about her day, what was she wearing, where she sat in the accused’s home?

“Slowly, I managed to get her to describe the assault. As she did this she became violent and aggressive and even screamed at one point,” Khade says, adding that the child was enraged and scared when she saw the accused in court.

The defence, Khade says, attempted to make it seem that the case had been forged, but she told the court “such children cannot lie. They do not understand what is a lie. They cannot connect things and then live up to a lie”.

Seven years later…

In January 2007, the sessions court convicted Jadhav and sentenced him to 10 years’ rigorous imprisonment. Jadhav later challenged the order, and it came to the Bombay High Court the same year.

Relying on the victim’s testimony and that of the family, Justice R Y Ganoo of the HC ruled that there was no reason to disbelieve the witnesses. The judgment was proclaimed in April.

Khade who now works with the forest department, to earn extra in order to sustain her school, says of the case, “I feel that whatever I have learnt has been of some use and has got this child justice. I am glad that the high court had faith in our deposition. The girl deserved justice.”

Original Mumbai Mirror

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