Headed to a business meeting, I was recently delayed at the door of Cook County’s huge juvenile detention center. A man in front of me was slowing things down by walking through the X-ray machine carrying keys and other metal objects on him. I was puzzled that no one seemed especially annoyed, until I spotted the Buzz Lightyear lunchbox he had placed on the conveyor belt. When intellectual disabilities are that obvious and childlike, even gruff sheriff’s deputies and the embattled relatives of incarcerated youth are generally patient and kind.
Intellectual disability does not always manifest itself so harmlessly. Nor is there always a clear boundary between normal function and cognitive impairment. That same detention center houses many young people suffering from a variety of intellectual limitations—limitations which may have contributed to their crimes.
Such limitations pose practical difficulties for detention center staff, who must supervise, care for and protect these young men and women in a tough environment. Detained youth with low IQs do not always understand facility rules. They may need simple and immediate rewards and punishments to behave appropriately. Living in such close quarters, they may irritate other detained youth. They become easy targets for bullying. They may also impulsively lash out, sometimes with tragic results. This is a widespread challenge in both adult and juvenile corrections across the country.
Which brings me to the ugliest, utterly unrehearsed outburst in last night’s Republican debate.
This outburst didn’t come from a candidate or from some media talking head. It came from the partisan crowd interrupting NBC reporter Brian Williams as he asked the following question [1]:
Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you…
At that moment, the audience erupted in spontaneous applause. Williams continued:
Have you struggled to sleep at night with the idea that any one of those might have been innocent?
Perry responded:
No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which—when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required…
The crowd cheered again. The video provides the full effect.
The progressive Twitter-sphere quickly ignited with references to one particularly appalling case, that of Cameron Todd Willingham, which rebuts virtually every particular in Perry’s response. Brilliant reporting by The New Yorker’s David Grann, establishes that Willingham was wrongfully convicted of a crime he probably did not commit [2]—indeed, that no one committed. Governor Perry had an opportunity to address the case’s obvious irregularities. Perry chose not to, and Willingham was put to death.
I think prosecutors and other officials sincerely believed that Willingham had brutally murdered his young children by setting his house on fire. Yet as Alan Dershowitz noted long ago, it’s easier to convict someone you’re convinced is guilty by cutting a few corners than it is to win the same conviction by doing things right. Such shortcuts are more common in the American justice system than we care to admit. Most of the time, the defendants are guilty. Not always.
Ironically, in focusing on the question of actual innocence, Williams was actually letting Governor Perry off the hook. Executing an innocent man is not the only appalling injustice in this world. Governor Perry has allowed many unjust executions of prisoners who were genuinely guilty, but who did not deserve to die.
Ten years ago, the Texas legislature passed a bill that “would have barred the death penalty for convicted killers who are mentally retarded.” Perry vetoed it. Perry’s predecessor—one George W. Bush—adopted the same conservative position. Incidentally, Florida governor Jeb Bush took the opposite view [3], providing one more reason to believe that the wrong Bush brother ascended to the presidency. Perry’s stated reason for the veto was that the bill “basically tells the citizens of this state, ‘We don’t trust you.’ “
I certainly don’t. The New Republic’s Kara Brandeisky provides a list of Texas’ five most controversial executions [4]. Amnesty International’s case files describe many more Texas offenders who should not have been executed. Some were juveniles when they committed their crimes. Some were mentally ill. Some were intellectually disabled. Some were poorly represented by attorneys with known records of negligence and incompetence.
A man named Bobby Woods could check both of the last two boxes. The Supreme Court has now ruled the execution of intellectually disabled people to be unconstitutional. Unfortunately for Woods, the court left the determination of such disability to the states.
As far as I know, Woods definitely committed a disgusting crime. He raped and murdered an 11-year-old girl. Some anti–death penalty activists are tempted to gloss over the grisly details. That’s wrong.
But there’s more to the story. For starters, Woods’ attorney was incompetent. As the Texas Herald Sun [5] related:
The lawyer, Richard Alley, “holds the distinction of being one of only two people ever removed from the Court of Criminal Appeal’s list of qualified capital habeas counsel,” his new lawyer Maurie Levin said in an appeal filed to the Supreme Court.
“He has been reprimanded by the state bar, and rebuked by and suspended from practice in the federal courts for his egregious missteps and incompetence as an appellate and post-conviction lawyer for those condemned to death.”
The National Coalition to Abolish the Death Penalty said in a statement that Alley “didn’t properly introduce evidence of Woods’s impaired mental capacity”.
You might ask: What kind of evidence might they have introduced? The Texas Observer reproduces a trove of pencilled letters Woods wrote home. One reads [6]:
Amnesty reproduces another marked-up letter, originally from his lawyer Richard Ally.
The letter begins:
Dear Bobby,
This is a case status letter. Enclosed herewith please find a copy of the Court’s Order denying us a hearing and recommending the denial of habeas corpus relief…
Pencilled around the legal jargon are Woods’ own words: “Tell me wend you get this ok. Tell me wend you get this Mom so I will no ok Mom.”
Then there is the case of Kelsey Patterson [7], nicely summarized by David Carson. Patterson killed two people and was executed by lethal injection in 2004. When police arrived, Patterson “was walking up and down the street, naked. He later explained that he removed his clothes because did not want police to think he was hiding a gun.” Openly delusional and diagnosed with paranoid schizophrenia, Patterson had been institutionalized after being found mentally incompetent in two prior shootings. At his trial, he testified that he was under the remote control of his lawyers, who had implanted electronic devices in his body.
The Texas Board of Pardons and Paroles recommended that Patterson’s sentence be commuted to life in prison. Amazingly, this was only the third time in twenty-two years that the board had issued such a clemency recommendation. Despite his own board’s recommendation, not to mention “an urgent humanitarian appeal [8]” from the European Union, Governor Perry declined to grant a stay.
What shall we make of this? Every campaign season features overblown mini-scandals we all pretend to care about for a day or two before moving on. Mitt Romney’s “corporations are people” non-gaffe [9] provides a near-perfect example of this genre.
This one goes deeper. Governor Perry—and to be fair, his predecessors—has presided over the nation’s most disgraceful capital punishment system. Whatever else happens in the 2012 election, I hope Perry pays a specific political penalty for allowing many unjustly executions to occur on his watch.
Bobby Woods was executed in December 2009, well after national attitudes and legal mores around capital punishment had really changed, particularly around issues of mental disability.
Woods’s last words were: “Bye. I’m ready.” The governor who allowed such things to happen is not ready to be president. Our nation is better than that. At least I hope so. Listening to last night’s ugly crowd, I sometimes wonder.