January 27, 2007

Atkins v. Virgina and the Execution of the Mentally Retarded

Once again, I appear to be all alone.

...Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, [the mentally retarded] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct... [over the past 13 years the] American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer...

So opens  Atkins v. Virginia, as opined by Justice Stevens.

It seems unassailable that the mentally retarded should not be executed.  Justice Stevens spoke of a consensus;  the APA's amicus brief to the Court stated:

(1) there is a clear and unmistakable national consensus against the imposition of the death penalty on persons with mental retardation, and (2) the American people oppose the execution of individuals with mental retardation because the practice offends our shared moral values. (emphasis mine.)

So once again I am the sole hold out to national consensus.  Okay.  If I am to grant that such a national consensus does exist-- which it most obviously does not-- it is not in small measure due to misunderstanding what mental retardation is:  it isn't Down's syndrome.  It isn't a guest spot on the Howard Stern Show, it isn't finger paints and a baseball cap at age 30 moaning, "I wanna eat tato chips!"

If it was this, I'd agree a consensus might even be close to unanimous.  Ironically, such a consensus would be irrelevant as such individuals don't commit capital offenses. 

But this is not what mentally retarded is.  Atkins, the above defendant, was determined by the defense expert to be MR because of an IQ of 59.  With this IQ, he was able to get drunk and smoke pot (which, FYI, does not diminish responsibility,) drive a car (which he was licensed to do), kidnap and drag his victim to an ATM to force him to withdraw $200, then drive him to an isolated spot and shoot him 8 times-- not to mention be competent to stand trial, cooperate in court and with his attorney, etc.  He was also able to pull of 16 other felonies in his life.   An IQ of 59 allows reading at a 6th grade level-- comic books are 4th grade and Time Magazine is 9th grade.

But that was Atkins.  A diagnosis of MR is an IQ less than 70. Can someone with an IQ of 70 appreciate that shooting  your kidnapping/robbery victim in the chest 8 times and dumping him in an isolated location is really, really, wrong?  From 1976-2002, 44 people with "mental retardation" have been executed; all but 2 had IQs at least 58.

So a categorical exemption for the mentally retarded might be sensible if someone could tell me exactly what mentally retarded means.  Because the psychiatric definition quite obviously covers individuals well within competency standards.  And that's the point.

Here's an example: if the exemption was for "Down's Syndrome" then this would be plausible, because a) we can reasonably agree how Down's impacts the defendant; b) we can identify it.  But "retardation" means-- what?  Mentally ill, as an exemption, is worse-- does depression count?  Only psychosis?  Does the presence of only a hallucination count, or do you have to have a thought disorder?  "Schizophrenia?"  What's that?  The John Nash type, or the homeless crackhead type?  How about borderline?  Narcissism?  If you can't be sure of what constitutes "mentally ill", how can you make a blanket exemption for it? 

We can take this debate up a level, and observe that with every other psychiatric disorder that impacts on legal matters, the question for psychiatrists is simply, "what's his disorder?" or "how does the disorder impact this case?"-- we have an advisory capacity, leaving the ultimate decision of culpability up to the courts. In this way, we put some distance from the outcome.  That's what expert testimony is all about.  Fair enough.  But now, with MR, the diagnosis automatically gets you out of execution.  As long as the IQ test comes back 59, the sentence changes.  Mental retardation is binary, apparently, and if you are fortunate enough to have it, you live-- regardless of how well you understood the wrongness of your actions, or how egregious were the crimes.

Which is ridiculous.  There are practically no valid measures for any psychiatric illnesses-- everything is up for debate and interpretation.  MR especially is a continuum disorder.  Factors as trivial as which IQ test is used, or when it is taken, can affect the diagnosis.  One study finds a 6 point increase using older tests vs. the newer version of the same test.  

"Our findings imply that some borderline death row inmates or capital murder defendants who were not classified as mentally retarded in childhood because they took an older version of an IQ test might have qualified as retarded if they had taken a more recent test," Ceci says. "That's the difference between being sentenced to life imprisonment versus lethal injection."

But now the law has set an arbitrary and empty, binary cut off for execution.  Psychiatrists now actually choose the sentence.  Not inform the sentence-- choose it.

I'm fairly certain the APA didn't think about this when it filed its amicus brief.  They never think these things through, because they believe they are an instrument of social change.  But, like  forced medication to render competent to be executed, psychiatrists have now boxed themselves into a corner.  It is now solely up to them-- and their "tests"-- to decide who gets executed. 

Consider the ethical dilemma for a forensic psychiatrist asked to evaluate for MR: given that the defendant can fake MR; and given that finding the defendant does not "have" MR--or suspecting that he is faking MR-- is exactly equivalent to sentencing him to death, can there be any other medically ethical outcome than finding they are MR?  Think well.  In other words, an answer is forced, an answer is created, simply by asking the question.  The situation here is identical to the judge leaning over and asking, "Do me a favor and decide for me.  Should I hang him or put him in prison?"  Um, well, gee, it's up to me? um, since you asked...

I know, doctors are going to inwardly smile, pat themselves on the back for their cleverness; after all, the goal is to abolish the death penalty for everyone, one group at a time.    And I am sure there are organizations who will actively, openly, exploit this loophole.

Notwithstanding the laudability of this goal, this isn't about the death penalty, it's about who decides the death penalty. 

Just remember, when society allows psychiatrists to decide who lives or dies, then psychiatrists will also decide who dies or lives.  I want everyone on the planet to take a very deep breath, and think about this.