Disability Policy Document Archive

Cruel and Unusual IN AMERICA

Date Mailed: Friday, March 9th 2001 12:52 AM

New York Times
March 8, 2001

Cruel and Unusual IN AMERICA

Antonio Richardson had already eaten what was supposed to have been
his last meal. Now he was waiting, frightened, in the prison cell
with the gray walls and the telephone at the Potosi Correctional
Center in Potosi, Mo., about 65 miles southwest of St. Louis.

 The state of Missouri has a death penalty but no death row.
Executions are carried out in the same prison wing as the infirmary
at Potosi. In the last few hours of their lives the condemned
prisoners are kept in a cell near the infirmary and are allowed to
make and receive as many phone calls as they like.

 Time had nearly run out for Antonio Richardson when word came
about 10:15 p.m. Tuesday that the U.S. Supreme Court had ordered a
temporary stay of his execution. Mr. Richardson had been scheduled
to be killed by lethal injection at 12:01 a.m. Wednesday.

 Mr. Richardson, who is brain-damaged and mentally retarded, was
part of a group of two young men and two teenage boys who raped and
murdered two young women in St. Louis in 1991. He was 16 at the
time of the attack.

 Only the United States, Congo and Iran continue to execute people
for offenses committed when they were juveniles. But that is not
the issue on which Mr. Richardson's case - and life - hinges. His
lawyer, Gino Battisti, is trying to convince the courts that it is
a cruel and unusual punishment, and therefore a violation of the
Eighth Amendment, to execute someone who is mentally retarded.

 What passes for justice in some of these cases is ludicrous. A
lawyer for Antonio Marquez, a brain-damaged and mentally retarded
man who was executed in Texas in 1995, would later say, "I was
never able to discuss the specifics of his legal case with him, but
instead we talked a lot about his favorite animals, things he liked
to draw, and how he missed being able to see his brothers and

 Anthony Porter - whose I.Q. was 51, among the lowest on record for
a condemned prisoner - spent 16 years on death row in Illinois. At
one point he was just 48 hours away from execution when the State
Supreme Court granted him a reprieve. Which was a good thing.
Because it turned out he was innocent. After all those years on
death row, he was exonerated and released in 1999.

 The U.S. Supreme Court considered this issue more than a decade
ago, and ruled in 1989 that executing the mentally retarded was not
a violation of the Eighth Amendment. Justice Sandra Day O'Connor,
writing for the majority in that case, said there was insufficient
evidence of a "national consensus" against such executions. At the
time, Georgia and Maryland were the only states that barred the
execution of the mentally retarded. 

 Mr. Battisti, Antonio Richardson's lawyer, has asked the Supreme
Court to consider his argument that such a consensus has since
developed. Tuesday night's stay of execution will give the court
time to decide whether to hear his argument. If it decides not to
consider it, the stay will automatically expire.

 Since 1989, 11 additional states have enacted laws prohibiting the
execution of the retarded, and a number of others, including
Missouri, are considering such laws.

 Capital punishment is always problematic. But additional serious
difficulties arise when those subject to the death penalty are
mentally retarded. It is extremely difficult to determine the level
of culpability of offenders with mental handicaps, and the death
penalty is supposed to be reserved for the most blameworthy
perpetrators of the most heinous acts. 

 In addition, mentally retarded defendants most often find it
difficult, and sometimes impossible, to participate effectively in
their own defense. And there are documented cases of mentally
retarded individuals confessing to murders that they hadn't

 Gino Battisti told me yesterday that, given the opportunity, he
will ask the Supreme Court to hold as a matter of law "that there
now exists a national consensus against executing retarded people"
in the United States, and therefore such executions violate the
Eighth Amendment.

 "That's the single issue I have in my petition," he said. "That's
my only issue."

 His client's life was at stake and he'd been up all night. And
over the phone you could hear the exhaustion in his voice.    

Copyright 2001 The New York Times Company

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