LEGAL AND VOLUNTEER ADVOCATES AT WORK

What’s next after Atkins v. Virginia?

By Robert Perske

In 1976, the same year the U.S. Supreme Court reinstated the death penalty, Jerome Bowden, a defendant with an IQ of 65 was sentenced to death in the murder of Kathryn Stryker in Columbus, Georgia.

While all evidence pointed to Jamie Graves, who confessed to the murder, the police asked Graves as an afterthought if anyone was with him. He said Jerome Bowden was. When Bowden, 24, learned that the police were looking for him, he walked up to a policeman in a patrol car and said, "Are you looking for me?" Bowden was taken in and interrogated until he confessed to the murder.

Graves received life without parole. Bowden was sentenced to death.

Shortly before Bowden’s execution, attorney Patricia Smith, then president of ARC/Georgia, heard about the case. Quickly, she developed an advocacy force that included ARC members and AAMR mental retardation professionals. A brief was presented to the board of pardons and paroles making three key points:

Jerome Bowden has mental retardation and is intellectually incapable of comprehending the meaning of death.
The question of Bowden’s competency was never tried.
No evidence linked Bowden to the crime, and he could not have read or understood the confession drafted for him by police.

Feeling pressure, the board ordered a last-minute evaluation. Irwin Knopf, chairman of Emory University’s psychology department tested Bowden’s IQ. Knopf claimed that Bowden had a non-verbal IQ of 62, a verbal IQ of 71, and his full-scale IQ was 65. Knopf also told the board that Bowden would need an IQ of 45 or less to be spared the electric chair.

The board believed him and Bowden was executed the next day. In his last telephone conversation with his lawyers, Bowden talked about the IQ test. "I tried real hard," he said. I did the best I could." In his last words to the world before the switch was pulled, Bowden said:

"I am Jerome Bowden and I would like to say my execution is to be carried out. I would like to thank the people of this institution. I hope that by my execution being carried out, it will bring some light to this thing that is wrong."

When Bowden died, legal and volunteer advocates were crushed, but his last sentence kept them working. They didn’t stop until Georgia voted the first law in the nation that banned the execution of persons with retardation.

This case and others like it caught the attention of law professor James Ellis and special education professor and lawyer Ruth Luckasson, also authors of the groundbreaking "Mentally Retarded Criminal Defendants" published in the May-June 1985 George Washington Law Review. In the early days, Ellis and Luckasson were very much alone in their advocacy efforts. They served as principal writers of the brief of Amicus Curiae in Penry v. Lynaugh (1989), which 11 mental disability agencies signed. The brief now serves as a model for all capital trial cases involving persons with retardation. Luckasson became a top evaluator and an expert witness in mental retardation cases. Ellis worked indefatigably to convince legislators to ban such executions.

Many of us watched the intelligence, energy, and grit Luckasson and Ellis put into this effort, and we unofficially signed on as advocates on many different levels. We did everything possible to help them stop the executions of persons we worked with and cared about.

When Ellis argued Atkins v. Virginia before the Supreme Court, we did everything we could to support him. When he won the case, some of us felt carnivals coming alive in our heads, waving flags and cotton candy, hearing the music of a calliope, and wanting to laugh with joy at the drop of a hat. It was like being on laughing gas.

But we sobered up fast. The powerful forces who want persons with mental retardation dead have not rolled over and given up. In 20 death penalty states, prosecutors are preparing for vigorous battles. We must surround our legal leaders with all kinds of volunteer advocates.

The Atkins ruling has opened a myriad of opportunities that volunteer and professional advocates can now pursue as never before:

Be aware that among the 7320 on death row, there are many whose mental retardation has never been discovered.
Pay attention to reports of newly discovered mental retardation in inmates of one’s own state.
Offer to support and assist pro bono lawyers who file habeas corpus petitions on their behalf.
Sit in the courts during their hearings, and later, raise awareness about them.
Engage the media and legislators in conversations regarding the post-Atkins view of persons with retardation in the criminal justice system.
Advocate for new education programs for policemen, lawyers, and judges on understanding persons with mental retardation.
Encourage evaluators in the field to qualify as forensic experts.
Support the development of a solid state-of-the-art definition of mental retardation that lawyers, judges, and juries can embrace and understand.
Be a friend to a person with mental retardation who is likely to be lost deep within the bowels of a prison of one’s own state.

Before the Atkins ruling, such suggestions would have scared some in the field. However, now, they are coming close to being considered attractive avenues for doing good to those who need us so much. Some may even be called bleeding hearts, but that’s okay. Atkins has opened our eyes to numerous situations that truly make our hearts bleed. Before, most of us ignored these situations, but we can’t do it any more.

We have lost too many persons with mental retardation like we lost Jerome Bowden.

Robert Perske is an AAMR Fellow who identifies persons with mental retardation coerced into confessing to murders they did not commit and those who have been sentenced to death. He recently was awarded the Paul G. Hearne award for Disability Rights by the American Bar Association.