30 June 2003

The NYTimes is dubious about the unconstitutionality of government being able to kill non-retarded as opposed to the retarded:
Even some of the public defenders eagerly making use of the Atkins decision sometimes wonder about the logic of it. ''Looking over some of the people on the row, there are people who, O.K., are probably not mentally retarded -- maybe they have I.Q.'s of 80,'' David Bodiker, the Ohio public defender, says. ''They have had horrible lives, they flunked out of school, but they don't quite make the grade, so to speak. And you wonder why should there be that distinction? I'm looking down my list of guys on the row, and I see, for instance, David Allen: I.Q. 82. Poor grades. Born premature. Psychiatric problems dating back to age 8. Reginald Brooks. He had an I.Q. of 77 at one time, then 89. Now he's probably got about 91. His problem is more in mental health -- schizophrenia.''

Bodiker finds it troubling that some inmates perform better on I.Q. tests the longer they've been in prison, which means that while they still suffer from cognitive deficits, they may no longer technically qualify as mentally retarded. Partly they do better because they may be taking an I.Q. test for the fourth or fifth time, reaping the benefits of a practice effect. But more likely, their improved scores reflect the fact that, as Caroline Everington, a forensic mental retardation expert, puts it, ''in prison, many of them are living in a stable environment for the first time in their lives.'' In the strictest sense, these prison-improved scores are unimportant: the focus of the Atkins decision is on a person's mental status at the time of the crime, not the time of execution. And I.Q. scores must be backed up with tests of a person's ''adaptive functioning.'' But in a broader way they do matter: they remind you that the elements that make up a diagnosis of mental retardation are fungible. The reasons for that are perfectly legitimate, but when the diagnosis matters in the way it does here, it becomes a little scary.
Personally, I think the decision was just bad. Even putting aside the fact that the federal supreme court imposed an evolving standards of decency decision upon us when there was no strong showing of evolution, this is going to end up with battle after battle between experts and jurors/judges guessing who's right. Instead of clarifying the law the decision muddled it.


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