THE BLOG

Inconsistency at the Supreme Court

02/06/2015 11:30 am ET | Updated Apr 08, 2015

America's fascination with the death penalty is fading quickly, and it's increasingly practiced by only a handful of states. But those declining numbers don't mean that serious problems don't exist with capital punishment and who gets executed.

2014 saw a continued decline in the number of death sentences. There were 35 executions in 2014; down from the peak year in 1998, when 98 were executed. Only seven states were responsible for those 35 executions, but Texas, Missouri, and Florida carried out 28 of last year's state killings - 80% of the executions.

As executions decline, who is actually being executed - the worst of the worst criminals? Far from it. In fact, instead of the worst of the worst, you could say it's often the least culpable; people with Intellectual Disabilities and severe mental illness.

You may be thinking, "Wait a minute, the Supreme Court wouldn't let that happen!" You're right, but you're also wrong.

Andrew Cohen's, January 30, op-ed in The Week: The lesson of Georgia's unjust execution of a developmentally disabled murderer illuminates brilliantly a supreme inconsistency at the Supreme Court. Warren Lee Hill was executed by the state of Georgia on January 29, in spite of a well-documented history of Intellectual Disability. Three days after Warren Hill's execution, Texas dispatched Robert Ladd with its usual chilling precision. Robert Ladd had Intellectual Disability, as well.

In neither case was there a real question about the intellectual capacity of these two men. You would think that there would be no dispute as to the law, either. The Court has held since 2002 that execution of a person with mental retardation (the outdated term for Intellectual Disability) is cruel and unusual; something rejected by our evolving standards of decency (Atkins v. Virginia.) Just last year, the Court reaffirmed its 2002 ruling in a Florida case (Hall v. Florida.) Justice Kennedy, in his majority opinion said, "Intellectual disability is a condition, not a number."

So why did they die? They died because of technicalities. On the merits their claims deserved relief, however technical legal barriers gave the Supreme Court reasons - or an excuse - not to act. In 2002, the Court left it to the states to cure the Intellectual Disability problem. Georgia, which had already become the first state to pass legislation outlawing the execution of those with Intellectual Disability imposed what we now see as an impossible standard to prove. Texas courts have continued to use non-scientific standards as the basis for evaluating Intellectual Disability.

So, two men with limited intellectual capacity were executed for the sake of finality over justice.

For thirty-eight years, since states were given their licenses to kill, they have been brutish and cruel imposing a punishment on people, who while accountable for their actions, possess weaknesses and vulnerabilities that make them less than fair targets for the ultimate revenge. Warren Hill and Robert Ladd's executions are two examples. The Georgia execution of Andrew Brannan, a decorated Viet Nam Veteran who suffered with post-traumatic stress disorder, is another.

We all benefit from a criminal justice system that is sensible and effective -- a system that creates a safer society with less crime. Yet, this is not what our current system is doing.

Capital punishment is an outdated practice that does not improve public safety. Our continued reliance on this practice is hindering our country's forward progress. Let's update our criminal justice system by ending the use of the death penalty. We can move our country forward when we make sure our criminal justice system uses practices that work to ensure public safety and well-being.

Find out how you can get involved in ending the death penalty. Go to www.90millionstrong.org or www.ncadp.org and follow me on twitter @diannatncadp