The death penalty itself is rare in United States jurisprudence, and carrying it out is even more rare – there generally are only a dozen or two dozen executions each year among all 50 states.
But it is the one penalty that no court on earth can reverse should there be a mistake, so there are a multitude of safeguards on its use – including one decision by the U.S. Supreme Court some 20 years ago that no one with intellectual disabilities should be executed.
But how that actually is applied still is being worked out, with a new challenge to a Georgia provision that protects the mentally subpar from executions if they are able to prove “beyond a reasonable doubt” their disability.
Now a civil and religious rights legal team, at the Rutherford Institute, has filed a friend-of-the-court brief with the Supreme Court arguing that is a standard that is too high for its application.
“Although states may regulate procedural burdens, those burdens violate the Due Process Clause if they are not sufficiently protective of fundamental constitutional rights,” the brief explains. “Georgia’s interest in efficient operation of its criminal justice system can be achieved through the imposition of a lesser burden, but a wrongful execution is irreversible.”
The argument comes in the case involving Rodney Renia Young and the state. Young was found guilty of murdering his former girlfriend’s adult. His death sentence was announced after the courts determined he had not proved beyond a reasonable doubt that he has an intellectual disability.
“One way in which our legal system protects individual rights and liberties, including those guaranteed by the Eighth and Fourteenth Amendments, is through the position of standards of proof,” Rutherford notes.
Those, the document notes, “allocate the risk of error between the parties involved, and reflect a societal judgment about which party should bear that risk.”
The higher the risk, the higher the standard, it notes.
“Thus, in the criminal context, the government typically bears the risk of error: it must prove its case beyond a reasonable doubt in order to decrease the likelihood of punishing an innocent person.”
The possibility of error, even in a death penalty case, exists, as documented by the several dozen individuals revealed as not guilty across the United States over recent decades and their release – after their convictions.
“The Supreme Court’s determination that what constitutes ‘cruel and unusual’ punishment should be dependent on the ‘evolving standards of decency’ leaves us with little protection in the face of a society lacking in morals altogether,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute, “The death penalty, which is flawed in its application and execution, especially as it applies to the disabled, is a perfect example of this.”
The Georgia requirement, a more demanding standard than any other state, violates the former Supreme Court ruling in Atkins v. Virginia that a person with an intellectual disability shall not be executed.
Those individuals are “categorically less culpable” than the average person who commits a crime and that “death is not a suitable punishment,” the ruling said.
“In order for a person to be generally classified as intellectually disabled, they must have: sub-average intellectual functioning (usually an I.Q. of 70 or below); difficulty coping in the everyday world; and manifested the disability prior to age eighteen,” the filing explains.
“Unfortunately, because there is no state-wide standard for determining and defining intellectual disability, many states continue to struggle to bring their laws in compliance with Atkins.”
The filing notes Young had evidence that he had been classified as “educable mentally retarded” indicating an IQ from 60-69.
The Institute, and its associated lawyers, now are asking the high court to resolve the “unacceptable risk” that some mentally subpar individual would be executed under Georgia law.
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