politics: May 2008 Archives

Many Americans assume that executing mentally disabled prisoners is a thing of the past. In a landmark ruling involving another Virginia prisoner, Daryl Renard Atkins, in 2002, the U.S. Supreme Court decided that executing the mentally retarded was tantamount to "cruel and unusual punishment." "It is fair to say that a national consensus has developed against it," Justice John Paul Stevens wrote in Atkins v. Virginia, citing the growing number of states that had outlawed it. 

The ruling followed years of executions -- some high-profile -- of mentally challenged defendants, including the controversial death of Ricky Ray Rector, the lobotomized Arkansas death row prisoner who then-presidential candidate Bill Clinton stopped to see killed while on the campaign trail in 1992. There was also the case of Mario Marquez, a mentally disabled Texas death row prisoner who had been abused as a child before being abandoned by his parents at age 12. No discussion of his mental retardation or years of abuse entered the courtroom before he was sentenced to die. But his post-conviction attorney would later describe how Marquez "was never able to discuss the specifics of his legal case, but instead we talked a lot about his favorite animals, things he liked to draw, and how he missed being able to see his brothers and sisters." Marquez was executed on the day of Gov. George W. Bush's inauguration, in 1995. 

And then there was the case of Earl Washington, a mentally disabled Virginia man who was exonerated in 2000 after having falsely confessed to a rape and murder committed in 1982. "The confession proved to be the prosecution's only evidence linking Washington to the crime," reported the Innocence Project, and "psychological analysis of Washington reported that, to compensate for his disability, Washington would politely defer to any authority figure with whom he came into contact. Thus, when police officers asked Washington leading questions in order to obtain a confession, he complied and offered affirmative responses in order to gain their approval." 

Nobody disputed the guilt of Kevin Green. But Washington's confession put him in the company of many disabled prisoners whose mental pliability makes them especially vulnerable to false confessions -- one of the leading contributions to wrongful conviction. 

The Atkins decision was a critical development in death penalty jurisprudence, in keeping with a trend the court likes to call our country's "evolving standards of decency." But when it came to enforcement, the court's 6-to-3 ruling contained what has proved to be a fatal flaw: It left it up to the states to define mental retardation, providing no standard measure for determining a defendant's mental capacity, thus rendering the law hopelessly elastic. The result: Prisoners with severe mental disabilities continue to face execution across the country.

But before his felony case got to trial, a judge suggested the prosecution and defense try something different -- an informal mediation process that, in less than an hour, resulted in a plea agreement where Gilliam avoided prison but agreed to pay restitution, get drug treatment and be on probation for five years. 

The March 18 mediation also gave Gilliam and his victims a chance to speak, to each other and a neutral judge, with Gilliam eventually apologizing for his crimes. "Both sides felt like they got something out of it and got to have their say," said Kristen Bailey, Gilliam's attorney. She would not allow him to discuss the process because he's not yet been formally sentenced. But she noted, "The victims felt like they were being listened to, and my client felt like he was being listened to." 

Gilliam's was one of 18 felony cases mediated and settled for Clay, Jackson and Leslie counties that day -- as part of a state pilot program that aims to reduce congestion in courts, and in prisons. While mediation is common in civil cases, felony mediation is rare in Kentucky and across the country, in part because of prosecutor opposition and judges' concerns about political fallout from the public.

The marketing ploy, if successful, would not only create distance between the candidate and the rest of the Republican Party, which currently suffers from widespread voter disapproval, it would also effectively elevate McCain and make him a larger-than-life figure, the spokesman for his own maverick brand that's built on political independence.

"The campaign's general-election strategy is to sell the McCain brand to show voters that he is distinct from President Bush and other Republicans," the Post reported. 

So guess what members of the press, including those at MSNBC, CNN, NBC, The Washington Post, Newsweek, the Politico, and The Boston Globe, have been doing incessantly in recent weeks. They've been making glowing references to the durability and appeal of the "McCain brand." I mean, how lucky can the Republicans get? The press is echoing precisely the message that the candidate's advisers want repeated again and again. What are the odds?

I assume the sarcasm is coming through loud and clear here.