In 2002, the Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that persons with intellectual disability (then referred to as mental retardation) may not be sentenced to death or executed. The Court concluded that doing so could no longer be tolerated by the Eighth Amendment’s prohibition against cruel and unusual punishments. The Court found a national (and international) consensus against executing persons with intellectual disability due to the dwindling number of states that sanctioned doing so as a matter of law or practice, and then made its own independent judgment regarding the legitimacy of imposing capital punishment on this vulnerable population. After concluding that doing so would not further either the deterrence or retributive functions of capital punishment, the Court held that a constitutional, categorical bar prohibiting the death penalty for persons with intellectual disability was necessary. The Court rejected the contention that permitting jurors to consider intellectual disability as a mitigating factor was constitutionally adequate, because empirical research and common-sense experience revealed that evidence of intellectual disability was a “double-edged sword,” which many jurors and judges often viewed as proving a capital defendant’s future dangerousness (and thus a reason to impose the death penalty).
Less often mentioned, and the focus of this article, is that the Court’s judgment in Atkins was also informed by its belief that people with intellectual disability are at “a heightened risk of wrongful execution.” This is due to several factors, including: they are more likely to confess falsely to a crime they didn’t commit; they often have difficulty communicating favorable information to their attorneys, as to both guilt or innocence and sentencing; they typically make poor witnesses (and thus rarely are able to testify in their own defense); and, their demeanor can convey a false sense of lack of remorse. The Court concluded that these class characteristics reinforced its determination that the death penalty is an excessive punishment for persons with this profound disability.
Based on my many years of experience representing persons with intellectual disability, I will attempt to put a human face on the reality (not merely the risk) of wrongful convictions and executions for these individuals, and will then discuss several implications of this reality for the future of the death penalty in this country.
Johnny Ringo Pearson
Johnny Ringo Pearson, so named because his mother loved The Beatles, was charged in 1995 with rape and murder in rural South Carolina. While his case was languishing pretrial due to his incompetency, the Supreme Court ruled in Atkins. Pearson’s case became the first opportunity for an “Atkins claim” to be litigated in South Carolina. While Pearson ultimately prevailed, his Atkins hearing exposed many things that are often wrong with the death penalty—and are always wrong with the death penalty for people with intellectual disability.
First, despite overwhelming evidence that Pearson is a person with intellectual disability (e.g., multiple IQ scores below 70, placement in special education, failure to advance beyond fifth grade, inability to maintain employment), the State found an “expert” to testify that he was not entitled to the Atkins exclusion because, in short, he was poor and black. This “expert” opined that IQ tests are not accurate for poor, rural black people in South Carolina, and asserted that 10–15 points should be added to Pearson’s 68 IQ. This “expert’s” second rationale was his perception of my interactions with Pearson in court. In his opinion, Pearson interacted with me in a manner inconsistent with his having intellectual disability. When he admitted that he had not heard what Pearson asked me, I asked if his opinion would change if the truth were (which it was) that Pearson said, “Mr. John, I have to pee; I have to pee real bad.” He insisted that the type of “rational communication” he had visually observed between us was beyond the ken of a person with intellectual disability. Fortunately, we had a fair-minded judge who ruled that Pearson was intellectually disabled, thus removing the death penalty as a sentencing option.
But, other persons seeking the benefit of this categorical exclusion are not so fortunate. Fifteen years of post-Atkins experience has revealed that many meritorious intellectual disability claims fail because the prosecution finds a “shamspert” who offers (and judges accept) the kind of outlandish, non-clinical opinions the “expert” provided in Pearson’s case. See John H. Blume et al., Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J.L. & Pub. Pol’y 689 (2009) (detailing cases).
While the judge’s decision to quash the death penalty was a relief, we remained convinced that Pearson is innocent. Due to his low intellectual functioning, he had given several inconsistent, incriminating statements after lengthy interrogation by two white officers (whom he insisted had physically threatened him), but the “confessions” did not match the few “hard” pieces of available evidence. Due to the lack of other strong incriminating evidence, the state decided to make a deal with just two of the eight alleged conspirators initially charged with the crime. Whom did they choose to testify against Pearson in exchange for leniency? The only two white men in the group. Pearson, however, would never have been able to testify at trial to contradict these witnesses due to his cognitive deficits, and false confession cases are exceedingly difficult under the best of circumstances. While we eventually managed to negotiate a deal securing Pearson’s freedom, a number of his African American co-defendants (who I am equally convinced are innocent) are—tragically—still in prison. As research has documented and as cases like this show, the criminal justice system is loath to admit its mistakes. See Bruce A. Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 Ohio St. J. Crim. L. 467 (2009) (detailing police and prosecutorial refusal to accept even overwhelming evidence of innocence after convictions).
Edward Lee Elmore
That brings me to Edward Lee Elmore. He was convicted and sentenced to death for a brutal rape and murder. During his many years of imprisonment, Atkins was decided; and in 2006, several colleagues and I established that he had intellectual disability, fortunately removing him from death row. But as in Pearson’s case, we were also convinced that Elmore didn’t commit the crime. The weak evidence at trial had been circumstantial forensics, a jailhouse informant who claimed Elmore confessed, and a statement by Elmore after a lengthy interrogation that if he committed the crime “he did not remember doing it.” That statement was hardly as incriminating as claimed by the prosecution given Elmore’s 68 IQ and significant memory deficits. Due to substantial defense efforts, the U.S. Court of Appeals for the Fourth Circuit eventually held that the forensic evidence against Elmore was what we always knew it was: illegitimate and completely unreliable.
For example, the prosecution could not explain why crime scene investigators did not photograph the most “damning” crime scene evidence: a large sprinkling of pubic hairs on the victim’s bed; or why— after initially analyzing Elmore’s clothes and finding no blood on them—the state allowed the clothes to be removed from the evidence locker and kept for several days by an agent previously unconnected to the case and who knew the victim. When the clothes were later reexamined, the victim’s blood was found on Elmore’s pants. Additionally, new DNA testing revealed that what the prosecution claimed at trial was a blue fiber found on the victim’s naked body was actually a pubic hair that did not belong to Elmore or the victim. In light of all this, the Fourth Circuit recognized that the state forensic team was at best “mistake prone” and more likely “outright dishonest.” Not long after that decision, Elmore finally heard a judge tell him that he was “free to go.”
While this is partially a “feel-good story,” it is important to remember that Elmore spent 31 years in prison for a crime he did not commit. He eventually received some compensation from the state, but he had to sue to get it, and, considering how long he was incarcerated, it amounted to pennies (or less) for every hour he was wrongfully incarcerated.
The final case to consider is that of Kenneth Simmons. He was convicted and sentenced to death for a brutal homicide and sexual assault. The primary pieces of evidence against him were multiple, inconsistent, confessions to law enforcement and a DNA analyst’s testimony that semen found inside the victim belonged to Simmons. Simmons, like Pearson and Elmore, was found, years after being sentenced to death, to be a person with intellectual disability. As is often true in these cases, the prosecution attempted to discredit the intellectual disability claim by relying on a stereotype: because Simmons had been a successful football player on one of the state’s best high school teams, he could not have intellectual disability. At a post-conviction hearing, the state also tried to rely on its trial “expert’s” opinion that Simmons did not have intellectual disability and had asserted that his “confessions” were voluntary, which due to his intellectual disability they were certainly not. But, as it turned out, the prosecution had previously failed to disclose that this “expert’s” psychologist’s license had been suspended for misconduct, including falsifying test results.
Again, it looks like the system worked for Simmons. But what was discovered was that the DNA semen results offered at trial had also been completely misrepresented. The state’s witnesses had claimed that two different tests showed an exact DNA match between Simmons and the vaginal swabs. But, in fact, the first test suggested a much weaker potential inclusion than claimed at trial, and the second, more sophisticated test did not match Simmons at all; it showed that the evidence did not even contain male DNA. Thus, what was presented to the jury as “gold standard” scientific evidence was anything but.
Unlike Pearson and Elmore, Simmons is still incarcerated, despite these evidentiary revelations. A judge did recently order a new trial, but the state has appealed that decision and Simmons continues to languish in prison.
In addition to highlighting the accuracy of the U.S. Supreme Court’s concern that persons with intellectual disability have a heightened risk of being convicted of crimes they did not commit, these cases also reveal several larger issues that call into question the legitimacy of the American experiment with capital punishment. The first is that persons with intellectual disability remain—despite the Atkins ban— at a heightened risk of wrongful execution. It is true that Pearson, Elmore, and Simmons were all eventually found by courts to be persons with intellectual disability; but the types of non-scientific, stereotypical testimony offered by the prosecution’s “experts” in their cases often succeeds in defeating objectively meritorious intellectual disability claims. Thus, persons who any reasonable clinician would conclude are intellectually disabled in any setting other than a capital case are frequently sentenced to death and ultimately executed. In that respect, my clients were lucky. They had fair-minded state court judges who adhered to clinical consensus. But continued hostility to a categorical exclusion by some judges often skews Atkins hearings, causing even overwhelming cases of intellectual disability to be rejected.
Second, there is no substitute for the hard work and investigation that goes into competently representing a person who may be or has been sentenced to death. The amount of expertise, funding, and investigation needed is substantially greater where one’s client may have intellectual disability. But, due to the continued appointment of overworked and underfunded defense counsel (a number of whom are, frankly, not up to the task under the best of circumstances), it can take years for all the facts to be uncovered and exposed, whatever the truth of a particular case may be. The truth may not be intellectual disability or innocence, but every person on death row has a powerful story that hasn’t been told, hasn’t been completely told, or hasn’t been told correctly. The truth may never come to light and the person may be executed, but even when the truth is uncovered, the hurdles posed by state procedural default rules to having the evidence heard or limits placed on federal habeas corpus review by the Supreme Court’s interpretation of the federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) are often insurmountable. Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219 (2015). And clemency, which should be a failsafe against such legal technicalities, is almost never considered seriously. Michael Heise, The Death of Death Row Clemency and the Evolving Politics of Unequal Grace, 66 Ala. L. Rev. 949 (2015). For these reasons, every single person on death row is at risk of being wrongfully executed. This is another reason that it is time for the death penalty to be consigned to the history books.
Third, the death penalty is, has been, and always will be driven by race. The numbers don’t lie. Eighty percent of the people on death row are there for killing someone who is white, and crimes with black defendants and white victims are the most likely to result in a death sentence. John H. Blume et al., Explaining Death Row’s Population and Racial Composition, 1 J. Empirical Legal Stud. 165 (2004). This general pattern has not changed since Reconstruction. John H. Blume & Sheri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37, 58 (2012). This not only is demonstrated by numerous, sophisticated, statistical studies but also is starkly present in the cases discussed in this article. While investigating Pearson’s case, my co-counsel Bill Nettles (who went on to become the progressive U.S. attorney for the District of South Carolina) spoke to the local sheriff. The sheriff asked Bill, “Son, where are you from?” and Bill said, “I’m from Columbia.” The sheriff said (I feel I must not sugar coat this by paraphrasing): “Son, your n——s aren’t like our n——s. If we don’t seek death when one n—— does this to another n——, what are we going to do when one of these n——s does this to a white woman?” Bill, true to his principles, said, “Do you mind if I put that in an affidavit and have you sign it?” Of course, the sheriff demurred. Then, Elmore, who had auburn colored hair, was told by his first court-appointed lawyer: “Of all the luck, I get a red-headed n—— for a client!” That, unfortunately, was Elmore’s introduction to the Sixth Amendment right to counsel. Finally, Simmons only came to law enforcement’s attention as a result of a police “round-up” of all black males living in the same area as the victim.
Additionally, in another case I am currently litigating in federal court, the prosecutor elicited evidence that my African American client had a white girlfriend and referred to him as a “caveman,” a “beast of burden,” and “King Kong.” A juror admitted that he believed our client committed the crime because he was “just a dumb n——.” Yet, the state courts found no evidence of racial bias, and the state appealed (unsuccessfully) a federal court’s grant of habeas corpus due to these problems. See Bennett v. Stirling, 842 F.3d 319 (4th Cir. 2016) (granting writ of habeas corpus finding prosecutorial misconduct of injecting race into the trial).
These problems regarding race and capital punishment aren’t fixable. As long as we have the death penalty, the color of a defendant’s skin, and the color of the victim’s skin, will often determine who will be sentenced to death and executed. That is a very important reason that the death penalty must be abolished.
The Supreme Court was right to bar the death penalty for persons with intellectual disability. But absent effective and properly funded counsel and judges who apply Atkins properly, these persons remain at risk of being wrongfully convicted and executed. The cases of Ringo Pearson, Eddie Elmore, and Kenneth Simmons are a testament to that truth. Their cases also show that the death penalty has deeper structural problems not just confined to cases involving persons with intellectual disability. And, as long as the death penalty remains a legal punishment, wrongful convictions and executions will be something with which we all—with the tragic exception of those executed—must live.