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Sunday, February 06, 2005

Justice or Barbarism?

The story below - how can I say this - is but one of increasingly frequent ones about the American criminal justice system – the callous and utterly immoral application of barbaric laws that refutes the core definition of justice.

We presume ourselves civilized people. We wallow in self-congratulatory plaudits over our body of law and our judicial system as the finest and fairest on the planet. But we deceive ourselves into believing these things because we cannot face the fact that, underneath it all, we must have revenge, not justice. We live in a persistent state of denial that by killing killers we're protecting society, deterring the killing of others and/or punishing the taking of life.

It's that sweet tang of revenge driving this craze for snuffing out the lives of deranged and disabled men (and some women) who, in the stupor of poverty, drugs, ignorance and diminished capacity to value their own lives or really understand "right" from "wrong," have taken another's.

So the state, in the cloak of high-minded righteousness, stoops to the same remedy for its own shortcomings, for its own expression of ignorance - and kills, often without knowing the truth, too often without caring to know it, merely clamoring for the eye and the tooth. And in all this we slaughter innocents. And in all this, we delude ourselves into accepting the witch-burnings that pass for justice, feeling powerless to confront a system that exploits the circus for political gain, dismissing the lives of accused with an even more cynical bloodlust with which they pursue their deaths.

But this—this obsession with killing killers, this descent into a pit of vipers poised for poisoning if only they can boost a man's IQ to where the law will allow his execution—this is a societal sickness that places our culture back in the darkest of dark ages. This, and the killing of children whose minds have barely formed the basis for judging the consequences of their behavior brings into sharp relief just how incapable we are of fulfilling our promise as human animals, as societal beings, as engaged problem-solvers rather than just another street gang by a different name.

We carry this into battle, into the Abu Ghraibs and the Guantánamos and other venues where our true colors emerge as a country at war with regimes and ideologies we claim have no respect for life. Where is ours? What effect can this possibly have on our collective advancement as interdependent peoples with common needs, common problems, seeking common solutions with real compassion for the value for all humanity? What effect is this having on the psyches of new generations of children hardened by the inhuman behavior of their parents and other authority figures—priests, police and prosecutors?

For all of the great industrial, scientific and technological breakthroughs the human mind has made, we still cannot seem to grasp the fundamental business of simply being human, recognizing its inherent downside in ourselves and in others—and two things that would make us the most civilized of nature's beings: forgiveness and the capacity to acknowledge our errors.

Andy Driscoll
February 6, 2005

Inmate's Rising I.Q. Score Could Mean His Death

ORKTOWN, Va., Feb. 3 - Three years ago, in the case of a Virginia man named
Daryl R. Atkins, the United States Supreme Court ruled that it was
unconstitutional to execute the mentally retarded. But Mr. Atkins's recent
test scores could eliminate him from that group.

His scores have shot up, a defense expert said, thanks to the mental workout
his participation in years of litigation gave him.

The Supreme Court, which did not decide whether Mr. Atkins was retarded,
noted that he scored 59 on an I.Q. test in 1998. The cutoff for retardation
in Virginia is 70.

A defense expert who retested Mr. Atkins last year found that his I.Q. was
74. In court here on Thursday, prosecutors said their expert's latest test
yielded 76.

Mr. Atkins, a slight, balding 27-year-old in an orange jumpsuit, sat slumped
with his chin on his hand as lawyers argued about whether his intelligence
was low enough to spare him from execution. In 1996, he and another man
abducted Eric Nesbitt, 21, an airman from Langley Air Force Base, forced him
to withdraw money from an A.T.M. and then shot him eight times, killing him.

He will be one of the first death row inmates to have a jury trial on the
question of whether he is retarded. The jury's decision will determine
whether his life will be spared.

Mr. Atkins's more recent scores should be discounted, a clinical
psychologist who tested him in 1998 and 2004 said, because they are the
result of "a forced march towards increased mental stimulation" provided by
the case itself.

"Oddly enough, because of his constant contact with the many lawyers that
worked on his case," the psychologist, Dr. Evan S. Nelson, wrote in a report
in November, "Mr. Atkins received more intellectual stimulation in prison
than he did during his late adolescence and early adulthood. That included
practicing his reading and writing skills, learning about abstract legal
concepts and communicating with professionals."

In helping put an end to the death penalty for the mentally retarded, then,
Mr. Atkins could have ensured his own execution.

Prosecutors say that Mr. Atkins has never been retarded and that the recent
tests confirm it. "I don't see how a 76 is exculpatory and evidence of
mental retardation," Eileen M. Addison, the commonwealth's attorney here,
said in court on Thursday. "It needs to be under 70."

Ms. Addison has said that Mr. Atkins's crime also proves that he is not
retarded. In an interview last year, she said that his ability to load and
work a gun, to recognize an A.T.M. card, to direct Mr. Nesbitt to withdraw
money and to identify a remote area for the killing all proved that Mr.
Atkins is not retarded.

"I don't believe the truly mentally retarded commit these kinds of crimes,"
she said last year. She did not respond to recent messages seeking comment.

There are several other reasons that Mr. Atkins's scores may have risen.
I.Q. scores are rarely completely stable and can drift, though within a
relatively narrow range, typically by five points up or down. Psychologists
recognize that practice drives scores higher. And I.Q.'s tend to rise over
time, by about three points a decade.

Dr. Evans, the defense psychologist, concluded that "Mr. Atkins's 'true'
I.Q. is somewhere in the mid- to upper 60's."

Dozens of mentally retarded people have been released from death row as a
consequence of the Supreme Court's decision, under agreements and judicial
findings. Others will face trials like Mr. Atkins's. David M. Gossett, a
Washington lawyer who represents a death row inmate in a similar position in
Georgia, said incarceration itself may also have a positive effect on the
test scores.

"Prisons are highly structured and safe environments," Mr. Gossett said.
"They're sometimes good environments for the mentally retarded. These people
are not vegetables. They can learn. These are people who can get better at
taking tests."

In old cases and new ones, courts across the country have been struggling to
interpret the Supreme Court's decision. Seven states have passed new laws,
according to the Death Penalty Information Center.

They have adopted essentially the same definition of mental retardation,
requiring defendants to prove three things: that their I.Q. is below 70 or
75, that they lack fundamental social and practical skills, and that both
conditions existed before they turned 18.

Mr. Atkins was never tested as a youth, and so the jury will have to
consider how to look back using his test scores as a young adult.

The defense bears the burden of proving he is retarded, so the absence of
scores from when he was young and the relatively high current test numbers
may hurt his case.

"I don't know what you have before age 18," Judge Prentis Smiley Jr., of the
York County Circuit Court here, told Mr. Atkins's lawyers on Thursday.
"That's your problem."

The judge described a clear standard. "The issues are bright lights and
targeted with a bull's-eye," Judge Smiley said.

Richard Burr, who represents Mr. Atkins along with Joseph A. Migliozzi Jr.,

"For people real close to the edge, there is nothing easy about that," Mr.
Burr said. "There is going to be controverted evidence, subject to sharp
disputes and disagreements."

Jurors in Mr. Atkins's case, which will be tried this spring or summer, will
probably hear from mental health experts, teachers, family members,
classmates and, perhaps, victims of some of the 16 other felonies that Mr.
Atkins committed when he was 18 in what Dr. Nelson called a four-month crime
spree. He dropped out of high school that year, his third attempt to pass
the tenth grade.

Virginia's handling of mental retardation in capital cases is relatively
unusual. In new cases, juries in this state do not reach the question until
after they have convicted the defendant. Many other states have a judge
decide the issue before trial.

Judge Smiley said he planned to tell jurors that Mr. Atkins was convicted
and sentenced to death. He will also allow prosecutors to dismiss jurors who
say they oppose the death penalty in all circumstances.

Mr. Atkins's lawyers asked the Virginia Supreme Court to reverse those
rulings. On Wednesday, that court declined to hear the case.

"This proceeding has veered off the course of fairness," Mr. Burr told Judge
Smiley on Thursday. "We want to have the opportunity to prove that Daryl
Atkins is mentally retarded."

Mr. Atkins nodded in agreement.

Copyright 2005 The New York Times Company


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