You know, at first I was shocked to hear that North Carolina was going to ban executing the mentally retarded. I hadn't heard much about this, and it seemed an odd thing for North Carolina to do. (Not as odd as it would have been for Virginia or Texas or Oklahoma, granted -- although, give them their due, the Texas Lege did try, and it was the governor who decided that killing the retarded was just fine and dandy! But I digress.)
Then you look closer, and you realize that this law is considerably less than it appears. The prosecution must agree to an evaluation hearing before you can go anywhere, and you must prove your mental deficiency with "clear and convincing evidence." The problem is that the second requirement drags the first in its wake. Prosecutors will never agree to an evaluation hearing for a defendant unless the evidence is so immediately apparent and overwhelming that not doing so would constitute prosecutorial misconduct. (And people that profoundly retarded seldom commit crimes at all, knowingly or otherwise.) Technically, there's another avenue of appeal -- they can ask the jurors to declare them retarded if they meet the standards but the prosecutor refuses -- but again, jurors are unlikely to be unanimous in that regard. There's also a hole a mile wide in this law; what if someone becomes mentally retarded after age 18 due to damage caused by disease or accident? They have no avenue to use this law; by definition, regardless of their current IQ, because it was caused post-adulthood, they cannot be mentally retarded.
About the only real use this law has is to allow the Supreme Court to note for their upcoming case that, yes, general consensus seems to be moving toward sparing the mentally retarded. (And I'm not entirely sure that 18 states will do it for them, but we'll see.) Of course, I suspect the Supremes will sidestep the core issue -- what defines mental retardation? What standards should the states use? -- and they'll allow the states to set their own standards without issuing guidelines. (Which virtually guarantees that they'll be seeing such cases again, but that's another issue.)
The Baltimore Sun (which is having a flurry of interesting articles these days) also has a general analysis of what's happening with the death penalty in this country. Apparently the fall report of the Illinois Commission on the Death Penalty is seen as crucial to the future of the death penalty in this country. I can't imagine that they'll go on record for outright abolition -- it would be nice, but improbable. Quite honestly, if the commission does recommend abolition, I would expect the legislature to laugh long and loud, and then say, "Well ... no."
Copyright © 2001, Iain Jackson, after-words.org
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Archives before February 5, 2001
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12/19/2001: vive la france
12/19/2001: princess, redux
12/19/2001: yemen and rumsfeld
12/18/2001: you're NOT in the army now
12/18/2001: interesting donation
12/18/2001: shame on winn dixie, indeed
12/18/2001: saudi princess
12/17/2001: new resolve
12/17/2001: a victim of the attack ... yeah, right
12/17/2001: polluters ho!