The Executioner's I.Q. Test By MARGARET TALBOT, New York Times, June 29, 2003

Most people will never take an I.Q. test, and if they do, it Rector. (Rector was not mentally retarded, but at the time probably won't have big impact on . Generally of his execution he was clearly brain-damaged -- the speaking, I.Q. tests do not carry much weight anymore. result of a self-inflicted bullet wound to the head Not with vague charges of cultural bias clinging to sustained at the time of his arrest.) them. Not at a time when multiple intelligences -- that happy, inclusive vision in which nearly everybody is good Richard Dieter, executive director of the Death Penalty at something -- are on the ascendancy. If you do take a 60 Information Center in Washington, says that he thought a Stanford-Binet or a Wechsler, and you score in the decision like this was bound to come at some point, but he average range, well, there you'll be, with hardly a reason was still surprised that the court hadn't waited a little 10 to mention it. If you score high, the particular number longer to see if more state legislatures would ban the won't matter much -- unless you're the sort to join Mensa, practice. Peter Arenella, a U.C.L.A. law professor who and then it will matter only to your fellow Mensa says he believes the court was absolutely right in Atkins, members. But if you are in the bottom 3 percent of the nonetheless finds the evidence of a public consensus population that scores 70 or lower, your actual I.Q. ''underwhelming'' and wondered whether the court was number will mean a great deal. Scores in that range will anxiously looking for moral high ground '' losing most likely lead to a diagnosis of mental retardation, and some with the decision on the presidential elections.'' that diagnosis will entail many things, starting with 70 David Bodiker, the state public defender in Ohio, had mandated special education. Since last June, across the waited optimistically for the court's decision in Atkins, a United States, it has also entailed exemption from capital Virginia case that centered on a convicted murderer 20 punishment. And so, for someone who has committed a named Daryl Renard Atkins. (Atkins's I.Q. had been capital crime, an I.Q. score can mean the difference, quite tested at 59, but he was sentenced to death nonetheless for literally, between life and death. It can mean, if we want the abduction and killing of a young airman from Langley to be blunt about it, that there is such a thing as being too Air Force base.) Bodiker says he knew that the court dumb to die, at least at the hands of the state. ''would not have taken the case if the justices didn't want to say something new on the subject.'' But, he says, he is On June 20, 2002, when the Supreme Court issued a still ''somewhat astonished by what they did say, because decision declaring execution of the retarded 80 we never anticipated anything that complete.'' unconstitutional, it surprised even some of the very people who had been working hardest to make that day In the year since the Atkins decision, these are a few of 30 come about. Asked to rule on the same question in 1989, the things it has not done. It has not, as some of its critics the justices had reached the opposite conclusion, predicted, unleashed a flood of farfetched claims. It has declaring that while evidence of a defendant's mental not produced flagrant cases of malingering, since in fact it retardation ought to be presented as a mitigating factor at is almost impossible to successfully fake mental sentencing, it did not render him or her ineligible for the retardation, the diagnosis of which involves not only I.Q. death penalty. here they were just 13 years later -- scores but documentation of the condition's onset before not so long in the history of what the court called our the age of 18 and assessments of how a person manages ''evolving standards of decency'' -- saying that the world 90 day to day, at work, at and in the community. The had changed, that Americans were no longer willing to person who imagined himself someday staving off countenance the ultimate punishment for people who by execution with a claim of mental retardation would have 40 definition could never be as morally culpable as other to have been fiendishly proactive, starting at least in grade adults. school with a purposeful campaign of deflating his test scores and bamboozling his way into special-ed classes. The evidence the court cited for this fundamental shift in (And would-be fakers who to flub I.Q. tests as adults opinion was suggestive but hardly an avalanche: in the don't tend to do it very well; they often make the mistake years since the court's ruling in Penry v. Lynaugh and this of answering all the questions wrong, which an actual one, Atkins v. Virginia, 16 more states had joined the 2 retarded person rarely does.) It has not led, not yet that barred the execution of the mentally retarded in the 100 anyway, to rulings that remove other whole classes of late 80's. And public opinion polls, Justice John Paul people -- like adolescents who commit their crimes at 16 Stevens wrote for the court majority, also suggested an or 17, older than the Supreme Court cutoff for the death 50 emerging consensus that it was wrong to execute the penalty but younger than many states permit. mentally retarded. In 1992, though the court did not cite this, many people had been horrified by Gov. Bill Here is what it has done. It has reopened cases and held Clinton's decision to permit the execution of Ricky Ray out the possibility that a good number of people scheduled to die will their lives in prison instead. In 60 mental retardation is incapable of carrying out a horrible Ohio, Bodiker estimates that perhaps 40 of the 207 people murder with the requisite intent or foresight.'' Bersoff, a on death row may be retarded, and his office has already liberal who found himself in reluctant agreement on this filed appeals based on the Atkins decision for 37 of them. issue with Justice Antonin Scalia, who wrote the dissent, In Virginia, according to Rob Lee, the lawyer who now worried that ''if we accept the concept of blanket represents Daryl Atkins, roughly 4 death-row inmates out incapacity, we relegate people with retardation to second- of the 29 may have claims related to mental retardation. class citizenship, potentially permitting the state to No one has done a national study, but some anti-death- abrogate the exercise of such fundamental interests as the penalty groups estimate that between 5 and 10 percent of right to marry, to have and rear one's children, to vote or 10 the 3,500 people on death row may have mental such everyday entitlements as entering into contracts or retardation and therefore be eligible for Atkins claims that 70 making a will.'' would save them from execution. Moreover, if people with mental retardation are More fundamentally, the Atkins decision has heightened individuals, each with different capacities, as advocates or exposed predicaments -- about the death penalty, about for the mentally retarded often argue, then perhaps their mental retardation, about the relationship between individual differences are as important as the traits that developmental disabilities and moral agency -- that will could be said to unite them. ''In 26 years of working with be with for a long time to come. For the court majority, retarded people,'' says Terrence Calnen, who until and for organizations like the American Association on recently was director of clinical services at a community- 20 Mental Retardation, it is that mentally retarded support organization for the mentally retarded in people should be exempt from the death penalty because, 80 Connecticut, ''I've known some people -- I'd say the as a group, they are prone to gullibility and have poor majority -- whose sense of decency and empathy would impulse control and limited abstract-reasoning abilities, prevent them from even contemplating a horrible crime all of which render them less responsible for their actions against another person. And I've known others who had -- or at least for their death-penalty crimes. Moreover, the no capacity for empathy whatsoever and no ability to same traits, along with a tendency to acquiesce to understand the finality of death. That experience makes authority figures, make them more likely to confess to me very wary of categorical judgments about the crimes they didn't commit, more likely to waive their retarded.'' Calnen and Leonard Blackman, a professor rights and less able to participate in their own defense -- emeritus at Columbia University Teachers College, have 30 to remember or provide their lawyer with potentially argued that it is not the global definition of mental exonerating details, for example, or to present the jury 90 retardation that reduces culpability in specific cases but with a winningly remorseful demeanor. Denis Keyes, a particular deficiencies -- in foresight, understanding of professor of special education at the College of cause and effect, capacity for empathy, for impulse Charleston who serves as an expert witness on cases control and so on -- that vary from person to person and involving mental retardation, recalls ''seeing defendants crime to crime. These variations, they argue, exist even slouched down in their chairs, scoffing at everything that's among a group, the mentally retarded, who are in general said, and that gets a jury mad. Well, there's a good chance more likely to suffer from such deficiencies. ''So it is not the defendant is looking like that because he doesn't have enough to argue that a person with mental retardation a clue what's going on at the trial.'' automatically lacks the skills and abilities required for 40 culpability for a capital offense without first knowing 100 what skills and abilities the crime summons,'' Calnen and And yet, to assert that mentally retarded people as a class Blackman have written. Impulse control might be a are less blameworthy for the gravest of crimes is to raise relevant factor, for example, in a stabbing during a some troubling contradictions. For one thing, a barroom fight. It would be less relevant if the stabbing categorical exemption does not chime with the main occurred ''at an opportune time, hours or days after having chords of the disabled-rights movement. In recent years, stalked a victim.'' advocacy for the mentally retarded has been aimed in a very different direction -- toward normalization, access, In other contexts, it seems obvious that intellectual ability treating individuals as individuals. Some advocates have and the capacity to act morally do not always go together. 50 urged that we drop the label of mental retardation We've all known smart and amoral people, on the one altogether, arguing that it is stigmatizing, arbitrary and 110 hand, and dense but decent people, on the other. bureaucratic. ''Whatever conceptualization of moral reasoning you use,'' says Douglas Mossman, the director of the division of ''As important as it is to protect those who cannot protect forensic psychiatry at Wright State University in Dayton, themselves,'' wrote Donald Bersoff, an emeritus professor Ohio, ''you see a range of moral capabilities in people and of law at Villanova and a psychologist, ''it is equally those capabilities do not necessarily coincide with important to promote the rights of all persons to make measures of intelligence or social performance.'' And as their own choices and, as a corollary, to be accountable Scalia put it in his dissent, even if there were a connection for those choices. It is simply untrue that no person with ''between diminished intelligence and the inability to refrain from murder'' -- a dubious connection to begin 60 truthfully, that they are offering a medical opinion, not a with -- ''what scientific analysis can possibly show that a legally binding determination. This is distinct from what mildly retarded individual who commits an exquisite the court must then do, namely, render a moral and legal torture-killing is 'no more culpable' than the 'average' judgment about blameworthiness and punishment, into murderer in a holdup-gone-wrong or a domestic dispute?'' which many factors -- including a person's mental state Those are moral and legal judgments, after all, not but also, say, the heinousness and premeditation of the scientific ones. crime -- are swirled. With Atkins, though, ''the line between clinical standards and legal standards has On the other hand, if the issue is not so much moral seemingly been obliterated,'' writes Alan Stone, a 10 agency as it is gullibility and credulity, it is not clear that professor of law and psychiatry at Harvard. ''A diagnosis only people with a diagnosis of retardation are vulnerable. 70 of mental retardation is a constitutional bar to execution. (Plenty of people with no such label are credulous -- or This means that the battle of the forensic experts will be a there would be no pyramid schemes, Powerball or phone struggle over the boundaries of a diagnosis that means life psychics.) And if retarded people are more susceptible to or death, a struggle in which scientific objectivity will be the kind of badgering or leading questioning that produces sorely tested and where it is difficult to claim that the false confessions, then that's a reason to make court bears the burden of responsibility.'' interrogations better and fairer (and perhaps a basis for due-process claims). Most retarded people on death row, like most retarded people in general, are in the mildly retarded range -- the 20 hen how a person happens to score on an I.Q. test -- a few upper range of the classification, which includes those points below or above 70 -- can determine life or death, 80 who can and do, though usually with help, obtain jobs and we are surely adding a new element of arbitrariness to a driver's licenses, take care of themselves, marry, raise death-penalty system that is already arbitrary in so many children and so on. Retarded people on death row tend not other ways. It's not that I.Q. tests are shoddy or unreliable to have Down syndrome, which usually results in more (indeed, they've proved to be remarkably accurate at severe retardation. In any case, people with more predicting academic success). But the same person can significant cognitive deficits either lack the capacity to score differently on them at different times and under plan or commit a serious crime or are declared different circumstances. The mental retardation label ''is incompetent to stand trial. ''Drooling guys who don't useful in that it allows mostly deserving individuals to get know how to feed themselves don't end up on the row,'' as 30 services and supports they often desperately need,'' writes Gregory Meyers, a lawyer in the Ohio public defender's Stephen Greenspan, professor emeritus of educational 90 office, puts it. psychology at the University of Connecticut. ''It is fiction in that there is no justification for the idea that there is a Many of the people I spoke to for this article pointed out magical line (let one determinable by a test score) that in making Atkins claims, they had to battle against a dividing those who have or do not have this condition.'' common misperception of the mentally retarded as more obviously impaired than most mentally retarded people Like other clinical definitions, the American Association are. They laughed and shook their heads over the on Mental Retardation's definition of the condition has stereotypes of slack-jawed guys humming tunelessly to frequently been revised. There have been 10 different themselves, hulking Lenny types, ''Deliverance'' extras. ''I 40 versions issued over the last century. And the was at a court proceeding in Florida where there were consequences of these refinements have not been trivial. 100 these two mixed-race defendants who were just A lowering of the I.Q. cutoff in 1973, for example, meant gorgeous,'' Denis Keyes says. ''I mean, honey, these two that the proportion of the American population classified guys took your breath away. And they were retarded, but as mentally retarded plummeted from 16 percent to 3 you could imagine the jury was thinking nobody with percent. Such core notions as whether people with mental mental retardation is that good looking.'' retardation could ever improve have undergone a great deal of rethinking as well. For years, the standard But if it's true that many people, even among those who definitions emphasized the condition's incurability; now support the death penalty, believe it is wrong to execute they stress its mutability over time, and the power of a the mentally retarded, and at the same time true that many 50 good support system to improve or even lift a diagnosis of people hold in their minds an inaccurate stereotype of the retardation. Today, some people who might formerly have 110 retarded, then we may have a problem. It may be that the been classified as retarded are being classified as learning consensus the court identified -- holding that it is wrong disabled, a different label with different implications. to execute the mentally retarded but acceptable to execute schizophrenics or minors or people who sustained brain Such changeability is one reason why some forensic injuries after the age of 18 or people who were psychiatrists are cautious about importing clinical unimaginably mistreated -- may not be as stable as it diagnoses into the courtroom, or at least granting them a seems. decisive role there. In the past, psychiatric experts called to testify in court have been able to tell themselves, Terrell Yarbrough, who is 22 and has been on Ohio's 60 10-year-old boy in the course of an attempted rape, said death row for three years, is one of the people whom the of his client that ''he loved the guy'' and sat with his arm Atkins decision will probably save from lethal injection. around Bies while I interviewed him. His is one of the most persuasive of the 37 Atkins-related claims the Ohio public defender has filed. On the surface, Still, however much you believe in your mission, it it looks better, for instance, than did that of Ernest Martin, probably helps in this line of work if you don't dwell too who to have written an autobiography while in much on what the client did, not if you can't at least prison (''Casualty of Justice: A Black Man's Plight With entertain the thought that he might not have done it. For the American Judicial System'') for which he planned a the rest of us, it's different. When I met with Terrell 10 sequel (''The Case of the Exhumed Petitioner''). Indeed Yarbrough one afternoon at the Mansfield Correctional Martin's appeal failed, and he was executed on June 18. 70 Institution, I kept thinking about the crime that put him there. I couldn't help it. The scores on the several I.Q. tests Terrell Yarbrough has been given over the years, starting at the age of 13, range between 59 and the low 70's. Yarbrough repeated the first At 5 a.m. on Memorial Day 1999, Aaron Land and Brian grade and dropped out in the ninth. His grades throughout Muha, two students at Franciscan University in his school years were a welter of C's, D's and F's. Called Steubenville, Ohio, were pistol-whipped awake by to the stand during the trial of his co-defendant, intruders and abducted from the house they shared with a Yarbrough's testimony consisted of the statement, ''On third roommate, Andrew Doran. Startled out of a sound 20 advice of my accountant, I invoke the Fifth Commitment sleep by noises he couldn't identify and a confused feeling Rights.'' He has told police detectives and various of his 80 that something was wrong, Doran managed to slip away attorneys that he is 6 foot 1 (he is closer to 5-8), that he is and call the police. When they arrived, Land and Muha from Harlem (he is from Pittsburgh), where he attended a were gone. The two men later convicted of the crime, Catholic school that he referred to as ''St. Jones,'' that he Yarbrough and a brighter, rougher companion named can write in Chinese and that he was tight with various Nathan (Boo) Herring, stole Brian Muha's car -- a 1996 prominent rap performers -- not suspecting, apparently, Chevy Blazer he had borrowed from his mother to move that anyone would notice the inaccuracies in his account. his stuff into the house that weekend -- and forced the two According to his current attorneys, who last summer filed men into it. They drove Land and Muha to a hillside a motion to overturn his death sentence in the wake of overlooking a highway in Pennsylvania and marched 30 Atkins, he did not, at first, appear to understand that them up it. There, according to the charges against them, ''death row'' meant a death sentence. ''Terrell thought there 90 they forced one of the men to perform oral sex on the was prison, there was execution and there was this other, other. Then they shot both of them at close range in the discrete thing called death row,'' says his attorney Kathryn head with a large-barreled handgun. They took Muha's Sandford. ''I think he gets it now, though.'' wallet and headed for an ATM machine in the Oakland section of Pittsburgh, where they tried unsuccessfully to When you tell a story like Terrell Yarbrough's, you face a use Muha's MAC card and where a security camera choice. You can start with the crime, and if it is a capital captured their images. crime, it's a horror story of some kind. Or you can start with the story of the criminal's life: he was born here, and On the afternoon of that same day, a woman named 40 his mother was a this, and his troubles started when, and Barbara Vey was leaving her apartment, which took up so on, and almost as often it's a horror story, too, of a 100 the entire top floor of a big old house in the Squirrel Hill different sort. And either version is true, in its way, but neighborhood of Pittsburgh. Vey was a psychologist who the one you choose has implications. For the people ran a crisis program for traumatized children, but she whose main goal, now, is to help Yarbrough evade death, wasn't working that day, since it was a holiday. She had the story always has to start with his retardation and, in an errand to do, which was to return a garden angel she some sense, to end there, too. It's not about his crime, had bought for her sister in Oklahoma City but had which they would rather not discuss with you and don't discovered was too large for the mailing box she had for generally discuss with him. Public defenders who work it. Just outside her house, a young man she did not on capital crimes, a lot of them, anyway, have an aspect recognize said hi to her and she said hi back. Something 50 of the pus-eating saint about them; they are willing to about him -- the way he was just standing there, doing stand by people who are often despicable because they 110 nothing in particular, plus the angry way a guy with him believe so deeply in the role they must play in ensuring was talking to him -- made Vey nervous. And she the justice system's procedural fairness. And because who remembered feeling relieved just to get in her car, a else will speak for the reviled? In Ohio, I heard a story bottle-green BMW, and leave. When she returned, about somebody's death-row client who urinated on one perhaps 15 minutes later, with a smaller version of her lawyer's shoes and threatened to kill another's young sister's gift, Vey went upstairs, answered a few phone children and who scared away some of his appointed messages, packed up the new garden angel and then defenders that way, but not all of them. The lawyer for decided she'd go enjoy the sunshine on her front porch. ''It Michael Bies, who was convicted of beating to death a was a holiday; there was nobody there,'' she testified. ''I changed my clothes and grabbed some things and put 60 to shield a victim from his accomplice -- a capacity he them in a bag -- soda, phone, a newspaper -- and was chose not to exercise when the two of them were going to go outside on the front porch.'' terrorizing and later killing Aaron Land and Brian Muha?

When Vey reached the bottom step of the foyer, swinging When I met Terrell Yarbrough, in an office in the the vinyl beach bag she had packed, two men jumped out building that houses Ohio's death row -- a building at her. They were both black, and for a split-second the helpfully stenciled with the words ''Death Row'' -- he thought crossed her mind, absurdly, that the black would not talk about the events of May 31, 1999, and his engineer who lived in the downstairs apartment was lawyers were there to assure his discretion. We had gotten 10 playing some kind of joke on her. But these men, whom a ride across the Mansfield Correctional Institution in one after a moment she recognized as the two she'd seen on 70 of the golf carts employees use to move around the vast, the street, were yelling and screaming at her -- ''I'm going windswept quadrangle there, and now we were sitting in a to shoot you, I'm going to kill you,'' and something, too, room that was bare except for a few pieces of furniture. about her car. Vey sat down on the ground with her arms One of them, oddly, was an elegant old roll-top desk that over her head and tried to make herself very small and somebody said had probably been salvaged from the 19th- very quiet and as calm as she could be, so that she century prison nearby, which is used now by movie wouldn't, as she put it, ''challenge'' the angrier of the two studios or by people who want to stay overnight as a lark. men, the one with the gun. And then the shorter, less In 1897, Ohio became only the second state to adopt the agitated one, the one whom she would later identify as electric chair, which was widely regarded by 20 Terrell Yarbrough, did something odd. He put himself humanitarian sorts as an improvement on the gallows; the between her and the man with the gun. ''Don't shoot her,'' 80 one used here was a rather grand, polished-wood affair he said. known as Old Sparky. Now, though, most people executed in Ohio and elsewhere die by lethal injection. ''When I sat down, it was almost as if he came forward to The room had that familiar, institutional smell: a faint but comfort me,'' Vey testified. ''It was very strange, and he unmistakable fug of burnt coffee, disinfectant and kept saying 'Don't shoot her' to the other man.'' The short overcooked vegetables. one told her to give her car keys to the angry one. But Vey didn't have her car keys with her. They were upstairs Yarbrough seemed glad to see us and disappointed I in her locked apartment. So the short one put his arms hadn't brought a photographer that day. We talked about 30 around her and led her up the stairs and steadied her how he liked to play basketball -- ''I'm like the baby shaking hand while she opened the lock on her front door. 90 basketball star here,'' he said. ''I'm the youngest guy on Once inside, she crawled toward her keys and then death row. But I done things half the cats in here would handed them over. The men took them along with the never do.'' And he talked about how other inmates paid wallet they had already relieved her of. Then the shorter him to write rap songs for them. ''Other dudes were one kissed her twice. And unlike Brian Muha and Aaron hearing me rapping and, you know, feeling my style. It Land, Barbara Vey survived, and her testimony served started when one dude asked me to write a rap, you know, both to identify Yarbrough and to complicate the to send his mom or something, about what it's like being impression of him. on death row. And so I wrote what I thought about it, being that we're basically in the same boat.'' 40 Yarbrough was arrested at about 6 p.m. that day, back in Steubenville, where he was tooling around with a friend 100 What he thinks about it, mainly, is that it's boring, despite in Brian Muha's Chevy Blazer. A few hours earlier, he'd the basketball and the rap songs and the books ''about taken it to a car wash, and a few hours before that he'd young black men coming up'' that he likes to read and the filled the tank with the help of a good Samaritan he reality TV that he likes to watch. TV can be kind of a flagged down after running out of gas on the highway. bummer, though, because ''I watch it, and I see all these young cats doing positive things, and I think that could It isn't exactly clear what Yarbrough's protectiveness have been me.'' Yarbrough looks younger than his 22 toward Barbara Vey might mean. Is it significant, as his years. He has dentures now, to replace the upper teeth that trial attorney argued, because what he did for her rotted after years of never brushing when he was a child. 50 constituted the ''sole acts of humanity'' in a brutal chain of He has a wispy moustache, a prominent nose and big, events and therefore a partial redemption of Terrell 110 heavy-lidded eyes. He calls his lawyers, Kathryn Yarbrough? Is it significant, as his appeal stresses, Sandford and Wendi Dotson, who are young and pretty, because it shows how dumb Yarbrough is, how he could his ''two angels.'' apparently delude himself into thinking that if he kept Herring from shooting Vey, she'd want to be his When Yarbrough was 3, his mother went to prison on girlfriend? (Yarbrough's interaction with Vey drug and theft charges. His father was an alcoholic and a demonstrates, as the appeal puts it, ''a serious lack of heroin addict who never worked after he was laid off from social skills and social understanding.'') Or does it suggest a steel mill. And since Yarbrough's mother kept going something else entirely: that Yarbrough had the capacity back to prison or rehab (her life was supporting her habit, she testified, and that meant that over and over again she 60 a plea for pen pals on a Web site, ohiodeathrow.com, that would ''go in a department store, take something, go on is run by an anti-death-penalty lawyer and priest named the street and sell it''), Yarbrough spent most of his Neil Kookoothe. More than 60 of the 207 men now on childhood shuttling among relatives in and around death row have done so, filling out questionnaires that Pittsburgh. There was Aunt Itellia, a technician with the Kookoothe then fashions into something resembling a gas company, who worried about all the bottles of sugar personal ad. Like most self-advertisements on the Web, water Terrell seemed to have been raised on and who these pages allow their authors to appear in any light they spanked him with a belt and complained about his might wish to appear, barring, in this case, the light of swearing at the age of 2. There were Aunt Brenda and free men the state has no plans to kill. Terrell Yarbrough, 10 Uncle Tony, who ran a youth ministry out of their used- for instance, presents himself as a man with a young son, furniture store and who inspired Terrell to do some street 70 whom he loves ''with all my heart'' (he has no son; the two preaching, a task for which he showed a flair, they said. photographs he includes of himself with a solemn, round- There were Aunt Iola and Aunt Rebecca and eventually faced baby show his nephew), as a 6-foot-3 guy, as a Terrell's older sister, Stacy. Still, Yarbrough says, he felt ''caring,'' ''sensitive'' guy who's had to harden his heart to like he was doing O.K. as long as his father was alive. survive ''behind walls of glass,'' as a guy from Harlem, ''My mom was in prison, and she was always selling me Yarbrough's eternal locus of cool and as a guy who has promises she couldn't keep. But my dad was my idol written a poem called ''If a Million People Love You.'' because when he was coming up, he was an athlete, good- looking and all. He was a heroin addict, so when I visited Michael Bies, who is also on Ohio's death row and who 20 him, I knew what to expect. He'd be nodding off, all also has a claim of mental retardation that may save his doped up.'' His dad had nicknames for little Terrell -- 80 life, says truthfully on his page that he has ''not had a nicknames like Dollar and Money. Before his father died, single personal visit'' in the years he has been on death of AIDS, Yarbrough was ''smoking marijuana every day row, that he is lonely, that he likes to read and dislikes and snorting cocaine and popping pills, but I wasn't people who are dishonest and play games. And then, of selling. When my dad eventually died, it really hurt me. course, there is a lot he does not say. I'm not using it for no excuse, but it's real, though. After that I started selling drugs, going to different states, Bies, who is now 31, was convicted in 1992 of killing a bringing stuff back.'' Starting at the age of 15, he was 10-year-old boy whom he and an accomplice, Darryl arrested several times and served time in juvenile (Junior) Gumm, lured from a park into an abandoned 30 facilities. building with a promise of $10 for gathering scrap metal. 90 The boy was small for his age and wearing a partial cast Now, when he talks about his prospects for living or on his foot where he'd dropped some weights. Gumm dying or how he thinks he got here, Yarbrough falls back tried to rape him, and when the boy screamed and on strangely pat and anodyne phrases. ''I hope for the best resisted, he and Bies kicked and beat him, with pipe, and prepare for the worst.'' ''I try to keep my head up and concrete and fists, to death. take it one day at a time.'' ''When you come to prison you find out who your real friends are.'' The crime for which Bies has an I.Q. that has been tested as low as 50 and as he was convicted was, he says, ''a tragedy.'' He doesn't high as 68. At the time of his trial, he could not remember talk about being retarded, partly because that's not a word the year, and he wrote the following statement to the jury: 40 that his lawyers generally use with him: they don't, Sandford says, ''want to make him feel like a loser.'' 100 ''I am sorry for everything. I am 20 years old. My sister Instead he says: ''I'm not going to sit here and tell you I died two months. I can't reader thing have happening all haven't made mistakes in my life. I've made mistakes. But of my life. I wants my mother here to tell the court I am I'm a human being.'' At his own trial, in a statement he not a bad person. I have three kids of my own, too. gave at sentencing, Yarbrough had managed a similar Always play with my two sons all the time. I would beat smoothness. ''I want to ask God to, you know, touch the as a kid by my mom's boyfriend. I am sorry, yes, for not families' heart, take away all their pain and suffering that testifying. I was honest on news to police -- that's police. I they're going through. And just let them know I'm sorry. never been in court before. I afraid of it. I once to get And I can understand, like, if the mothers, you know, hate on me her. I will stay in jail for life if you will let 50 me, because no one got the right to take, you know, no me.'' one off this earth. And you know there's not a day that 110 goes by that I don't think of Brian and Aaron, and I wish I The statement took him two hours to write, according to could turn back time, but I can't. . . . Ain't no one gaining one of his current lawyers, Randall Porter, and Bies had nothing in this whole situation. And you know, not only considerable difficulty reading it aloud. At his trial, a this situation, it's the world today, you know. Violence psychologist called by the defense testified that Bies was doesn't solve anything.'' functioning at a third-to-sixth-grade level. The report of a doctor who assessed his mental functioning at age 10 reflected a persistent blankness. ''When asked what he If they choose to, inmates of Ohio's death row can put out would do if there were a fire in a movie theater, he said, 'I don't know what I would do.' When asked what he would 60 significant improvements. When he was not acting out, he do if he found a stamped, addressed and sealed envelope, was a sweet, adorable and needy child. He was a joy to be he said, 'I don't know.' When asked about the difference around and was very fond of the staff.'' between a river and a lake, he said, 'I don't know that, either.' When asked how oranges and apples are alike, he Maybe the most salient thing about Bies is the interplay of said, 'They are not.' He was unable to interpret proverbs.'' all of these things -- his mental illness, his intellectual liabilities, his upbringing -- his story, which is actually When I spoke with him in March, Bies labored to read the something more, or at least different from, a clinical release form that the prison had provided and labored to diagnosis. In some ways, the label of mental retardation 10 sign it. ''You're really getting me to work my mind today,'' seems like the least salient thing about him, the least he said to his lawyer and me, with a smirk that erupted 70 relevant to whatever claim he might have on our mercy. into one of the explosive giggles with which he often punctuates his remarks. Bies is pale, with a mauvish ven some of the public defenders eagerly making use of prison pallor, squinty green eyes and a pronounced the Atkins decision sometimes wonder about the logic of widow's peak. He said he had trouble understanding the it. ''Looking over some of the people on the row, there are legal aspects of his case -- ''I ain't no lawyer'' -- but that people who, O.K., are probably not mentally retarded -- ''when Randall broke it down'' for him he could. And he maybe they have I.Q.'s of 80,'' David Bodiker, the Ohio said he tried to read books but ''wasn't good at it'' and had public defender, says. ''They have had horrible lives, they tried to follow the war in Iraq but had some trouble with flunked out of school, but they don't quite make the grade, 20 that, too. He said he knew that as a kid, he had been in a so to speak. And you wonder why should there be that lot of different hospitals and schools. He couldn't 80 distinction? I'm looking down my list of guys on the row, remember them all, but he didn't think any of them had and I see, for instance, David Allen: I.Q. 82. Poor grades. helped because ''I was too far gone, too set in my ways, Born premature. Psychiatric problems dating back to age you might say. When you've had as many hospitalizations 8. Reginald Brooks. He had an I.Q. of 77 at one time, then as I have, you start debating on if anybody can ever help 89. Now he's probably got about 91. His problem is more you, anyhow.'' A little later, he tried to remember a term in mental health -- schizophrenia.'' doctors had once used to describe him. ''Was it acting on impulse? Was that the word?'' he asked, turning to his Bodiker finds it troubling that some inmates perform lawyer. He has an ex-wife and two children, the older of better on I.Q. tests the longer they've been in prison, 30 whom is 13, and Bies said that his ''only regret out of all which means that while they still suffer from cognitive this'' was not being able to see those kids grow up. 90 deficits, they may no longer technically qualify as mentally retarded. Partly they do better because they may What, though, is the crucial fact about Bies? Is it that he is be taking an I.Q. test for the fourth or fifth time, reaping mentally retarded? Is it that he has a documented history the benefits of a practice effect. But more likely, their of hearing voices and of multiple suicide attempts and is improved scores reflect the fact that, as Caroline probably mentally ill? Is it that he had encephalitis as a Everington, a forensic mental retardation expert, puts it, child or that he was once hit by a city bus when he tried to ''in prison, many of them are living in a stable pull his little sister out of the way? Is it that his environment for the first time in their lives.'' In the upbringing was a grand guignol of abuse and deprivation, strictest sense, these prison-improved scores are 40 featuring a floridly disturbed mother who often left her unimportant: the focus of the Atkins decision is on a young children alone for days or in the care of 100 person's mental status at the time of the crime, not the deinstitutionalized mental patients? When Bies was 9, he time of execution. And I.Q. scores must be backed up witnessed his 3-year-old sister's rape by a baby sitter. with tests of a person's ''adaptive functioning.'' But in a When she was a teenager, the same sister, whom he says broader way they do matter: they remind you that the he was always very close to, died of a drug overdose. elements that make up a diagnosis of mental retardation are fungible. The reasons for that are perfectly legitimate, In an affidavit, Jackie Hookanson, the director of clinical but when the diagnosis matters in the way it does here, it and educational services for the Victor Neumann School, becomes a little scary. a Chicago institution for emotionally disturbed children 50 that Michael Bies attended, stated that in her 26 years of When it comes to lesser crimes, the mentally retarded are experience she had ''never seen a more chaotic family'' 110 not, as a class, held less accountable. (Evidence of an than Bies's. Hookanson arrived at the apartment one time individual's mental liabilities can be presented during the when Michael had been absent from school for several trial and at sentencing and may influence a jury to days to find him and his brother tied to chairs being exculpate him or a judge to grant a more lenient screamed at and whipped by one of their mother's sentence.) Why should it be only capital crimes -- by boyfriends. He regularly came to school filthy and, on at definition the most brutal or the most harmful to the least one occasion that Hookanson remembered, covered commonweal -- that entitle a mentally retarded defendant in bruises. And yet, Hookanson recalled in her affidavit, to a lesser punishment? ''Surely culpability, and ''after about a year at Victor Neumann, Michael made deservedness of the most severe retribution,'' Scalia points out in his dissent, ''depends not merely (if at all) upon the 60 trial, repentance was what he spoke about. He did not mental capacity of the criminal (above the level where he believe that Yarbrough should die; he was a Catholic and is able to distinguish right from wrong) but also upon the did not believe in the death penalty. What he said missed depravity of the crime -- which is precisely why this sort a lot of the nuances, and important ones, about Terrell of question has traditionally been thought answerable not Yarbrough's cognitive weaknesses. But it did reveal by a categorical rule of the sort the Court today imposes something about how it is that even some people who upon all trials, but rather by the sentencer's weighing of believe in the presence of evil and whose loved ones have the circumstances (both degree of retardation and been touched by it, even some people who believe firmly depravity of crime) in the particular case.'' But for many in retribution, can still oppose capital punishment. ''The 10 people who favor the Atkins decision, the good of saving Bible tells us that only God will judge us,'' Chris Muha some of the condemned from execution supersedes almost 70 said to Yarbrough that day. ''But it also tells us to confront all other concerns. our brothers and their wrongdoing. And why should we do this? Because unless you change, you will not go to If you are for the death penalty and against the Atkins heaven. And in that sense, Terrell, we are in this salvation decision, as Scalia is, then you can argue for thing together. And anyone who makes excuses for you is individualized justice, not categorical exemptions. If you not helping you get to heaven. Anyone who makes are against the death penalty, you can be enthusiastic excuses does not ultimately care about your soul.'' about Atkins because it saves people, and people who it is possible to think of as uniquely vulnerable -- or you can Blameworthiness -- not whether someone did a deed or 20 be skeptical about Atkins. You can be skeptical, in the not, but the extent to which they are culpable for it -- is a first place, about the classes of people it leaves out. Why 80 complicated matter, a matter of whole pictures. It would the mentally retarded and not the schizophrenic, whose be a relief, in a way, if a diagnosis like mental retardation particular demons and deficiencies make them, if always settled the question of how much to blame a guilty anything, less able to conform to the law than people with person, but it would leave so much out of the picture. And low I.Q.'s? some of those things -- moral agency, the nature of the crime itself -- might be the very things we care about Douglas Mossman, the forensic psychiatrist, argues that most. there are other groups who should, in the wake of Atkins, be considered for exemption from the death penalty as 30 well -- people with attention deficit hyperactivity disorder, or with low levels of serotonin that inhibit their impulse control, or with brain damage that does not qualify as mental retardation because it occurred as a result of an accident, stroke or other mishap when the person was older than 18. ''By declaring the execution of persons with one particular psychiatric diagnosis 'cruel and unusual punishment,' Atkins has opened a psychiatric can of worms,'' Mossman writes. ''Courts will have no choice but to consider whether other equally disabling 40 mental conditions also deserve placement in a special legal and moral category.'' Indeed, equal protection doctrine would seem to argue fairly strongly for including other categories of mental disability. And yet if we proceed that way -- lopping off whole classes of people from consideration for the death penalty -- eventually we'll be left with only a very few deemed execution- worthy. How much better to abolish the death penalty openly and altogether than in what amounts to a kind of piecemeal, back-door fashion? As even Scalia admitted in 50 his dissent, ''There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court.''

Just as there used to be a notion of rehabilitation that no longer has much purchase in our culture, there used to be an idea of repentance -- the idea that gave us the word ''penitentiary.'' When the brother of the murdered college boy Brian Muha gave his statement at Terrell Yarbrough's