A provocative look at I.Q. tests, mental retardation, and Death Row, this is also a painful account of abused children. Every teacher will ache for these children, wondering about her role in their development. Acknowledging and detailing the unspeakable crimes committed by the profiled inmates, the author raises important questions about repentance and rehabilitation, concepts that no longer have much purchase in our culture, even though, as the author observes, the idea of repentance gave us the word "penitentiary."
Most people will never take an I.Q. test, and if they do, it probably won't have a big impact on them. Generally speaking, I.Q. tests do not carry much weight anymore. Not with vague charges of cultural bias still clinging to them. Not at a time when multiple intelligences -- that happy, inclusive vision in which nearly everybody is good at something -- are on the ascendancy. If you do take a Stanford-Binet or a Wechsler, and you score in the average range, well, there you'll be, with hardly a reason to mention it. If you score high, the particular number won't matter much -- unless you're the sort to join Mensa, and then it will matter only to your fellow Mensa members. But if you are in the bottom 3 percent of the population that scores 70 or lower, your actual I.Q. number will mean a great deal. Scores in that range will most likely lead to a diagnosis of mental retardation, and that diagnosis will entail many things, starting with mandated special education. Since last June, across the United States, it has also entailed exemption from capital punishment. And so, for someone who has committed a capital crime, an I.Q. score can mean the difference, quite literally, between life and death. It can mean, if we want to be blunt about it, that there is such a thing as being too dumb to die, at least at the hands of the state.
On June 20, 2002, when the Supreme Court issued a decision declaring execution of the retarded unconstitutional, it surprised even some of the very people who had been working hardest to make that day come about. Asked to rule on the same question in 1989, the justices had reached the opposite conclusion, declaring that while evidence of a defendant's mental retardation ought to be presented as a mitigating factor at sentencing, it did not render him or her ineligible for the death penalty. Now here they were just 13 years later -- not so long in the history of what the court called our ''evolving standards of decency'' -- saying that the world had changed, that Americans were no longer willing to countenance the ultimate punishment for people who by definition could never be as morally culpable as other adults.
The evidence the court cited for this fundamental shift in opinion was suggestive but hardly an avalanche: in the years since the court's ruling in Penry v. Lynaugh and this one, Atkins v. Virginia, 16 more states had joined the 2 that barred the execution of the mentally retarded in the late 80's. And public opinion polls, Justice John Paul Stevens wrote for the court majority, also suggested an emerging consensus that it was wrong to execute the mentally retarded. In 1992, though the court did not cite this, many people had been horrified by Gov. Bill Clinton's decision to permit the execution of Ricky Ray Rector. (Rector was not mentally retarded, but at the time of his execution he was clearly brain-damaged -- the result of a self-inflicted bullet wound to the head sustained at the time of his arrest.)
Richard Dieter, executive director of the Death Penalty Information Center in Washington, says that he thought a decision like this was bound to come at some point, but he was still surprised that the court hadn't waited a little longer to see if more state legislatures would ban the practice. Peter Arenella, a U.C.L.A. law professor who says he believes the court was absolutely right in Atkins, nonetheless finds the evidence of a public consensus ''underwhelming'' and wondered whether the court was anxiously looking for moral high ground ''after losing some with the decision on the presidential elections.'' David Bodiker, the state public defender in Ohio, had waited optimistically for the court's decision in Atkins, a Virginia case that centered on a convicted murderer named Daryl Renard Atkins. (Atkins's I.Q. had been tested at 59, but he was sentenced to death nonetheless for the abduction and killing of a young airman from Langley Air Force base.) Bodiker says he knew that the court ''would not have taken the case if the justices didn't want to say something new on the subject.'' But, he says, he is still ''somewhat astonished by what they did say, because we never anticipated anything that complete.''
In the year since the Atkins decision, these are a few of the things it has not done. It has not, as some of its critics predicted, unleashed a flood of farfetched claims. It has not produced flagrant cases of malingering, since in fact it is almost impossible to successfully fake mental retardation, the diagnosis of which involves not only I.Q. scores but documentation of the condition's onset before the age of 18 and assessments of how a person manages day to day, at work, at home and in the community. The person who imagined himself someday staving off execution with a claim of mental retardation would have to have been fiendishly proactive, starting at least in grade school with a purposeful campaign of deflating his test scores and bamboozling his way into special-ed classes. (And would-be fakers who try to flub I.Q. tests as adults don't tend to do it very well; they often make the mistake of answering all the questions wrong, which an actual retarded person rarely does.) It has not led, not yet anyway, to rulings that remove other whole classes of people -- like adolescents who commit their crimes at 16 or 17, older than the Supreme Court cutoff for the death penalty but younger than many states permit.
Here is what it has done. It has reopened cases and held out the possibility that a good number of people scheduled to die will spend their lives in prison instead. In Ohio, Bodiker estimates that perhaps 40 of the 207 people on death row may be retarded, and his office has already filed appeals based on the Atkins decision for 37 of them. In Virginia, according to Rob Lee, the lawyer who now represents Daryl Atkins, roughly 4 death-row inmates out of the 29 may have claims related to mental retardation. No one has done a national study, but some anti-death-penalty groups estimate that between 5 and 10 percent of the 3,500 people on death row may have mental retardation and therefore be eligible for Atkins claims that would save them from execution.
More fundamentally, the Atkins decision has heightened or exposed predicaments -- about the death penalty, about mental retardation, about the relationship between developmental disabilities and moral agency -- that will be with us for a long time to come. For the court majority, and for organizations like the American Association on Mental Retardation, it is clear that mentally retarded people should be exempt from the death penalty because, as a group, they are prone to gullibility and have poor impulse control and limited abstract-reasoning abilities, all of which render them less responsible for their actions -- or at least for their death-penalty crimes. Moreover, the same traits, along with a tendency to acquiesce to authority figures, make them more likely to confess to crimes they didn't commit, more likely to waive their rights and less able to participate in their own defense -- to remember or provide their lawyer with potentially exonerating details, for example, or to present the jury with a winningly remorseful demeanor. Denis Keyes, a professor of special education at the College of Charleston who serves as an expert witness on cases involving mental retardation, recalls ''seeing defendants slouched down in their chairs, scoffing at everything that's said, and that gets a jury mad. Well, there's a good chance the defendant is looking like that because he doesn't have a clue what's going on at the trial.''
And yet, to assert that mentally retarded people as a class are less blameworthy for the gravest of crimes is to raise some troubling contradictions. For one thing, a categorical exemption does not chime with the main chords of the disabled-rights movement. In recent years, advocacy for the mentally retarded has been aimed in a very different direction -- toward normalization, access, treating individuals as individuals. Some advocates have urged that we drop the label of mental retardation altogether, arguing that it is stigmatizing, arbitrary and bureaucratic.
''As important as it is to protect those who cannot protect themselves,'' wrote Donald Bersoff, an emeritus professor of law at Villanova and a psychologist, ''it is equally important to promote the rights of all persons to make their own choices and, as a corollary, to be accountable for those choices. It is simply untrue that no person with mental retardation is incapable of carrying out a horrible murder with the requisite intent or foresight.'' Bersoff, a liberal who found himself in reluctant agreement on this issue with Justice Antonin Scalia, who wrote the dissent, worried that ''if we accept the concept of blanket incapacity, we relegate people with retardation to second-class citizenship, potentially permitting the state to abrogate the exercise of such fundamental interests as the right to marry, to have and rear one's children, to vote or such everyday entitlements as entering into contracts or making a will.''
Moreover, if people with mental retardation are individuals, each with different capacities, as advocates for the mentally retarded often argue, then perhaps their individual differences are as important as the traits that could be said to unite them. ''In 26 years of working with retarded people,'' says Terrence Calnen, who until recently was director of clinical services at a community-support organization for the mentally retarded in Connecticut, ''I've known some people -- I'd say the majority -- whose sense of decency and empathy would prevent them from even contemplating a horrible crime against another person. And I've known others who had no capacity for empathy whatsoever and no ability to understand the finality of death. That experience makes me very wary of categorical judgments about the retarded.'' Calnen and Leonard Blackman, a professor emeritus at Columbia University Teachers College, have argued that it is not the global definition of mental retardation that reduces culpability in specific cases but particular deficiencies -- in foresight, understanding of cause and effect, capacity for empathy, for impulse control and so on -- that vary from person to person and crime to crime. These variations, they argue, exist even among a group, the mentally retarded, who are in general more likely to suffer from such deficiencies. ''So it is not enough to argue that a person with mental retardation automatically lacks the skills and abilities required for culpability for a capital offense without first knowing what skills and abilities the crime summons,'' Calnen and Blackman have written. Impulse control might be a relevant factor, for example, in a stabbing during a barroom fight. It would be less relevant if the stabbing occurred ''at an opportune time, hours or days after having stalked a victim.''
In other contexts, it seems obvious that intellectual ability and the capacity to act morally do not always go together. We've all known smart and amoral people, on the one hand, and dense but decent people, on the other. ''Whatever conceptualization of moral reasoning you use,'' says Douglas Mossman, the director of the division of forensic psychiatry at Wright State University in Dayton, Ohio, ''you see a range of moral capabilities in people and those capabilities do not necessarily coincide with measures of intelligence or social performance.'' And as Scalia put it in his dissent, even if there were a connection ''between diminished intelligence and the inability to refrain from murder'' -- a dubious connection to begin with -- ''what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is 'no more culpable' than the 'average' murderer in a holdup-gone-wrong or a domestic dispute?'' Those are moral and legal judgments, after all, not scientific ones.
On the other hand, if the issue is not so much moral agency as it is gullibility and credulity, it is not clear that only people with a diagnosis of retardation are vulnerable. (Plenty of people with no such label are credulous -- or there would be no pyramid schemes, Powerball or phone psychics.) And if retarded people are more susceptible to the kind of badgering or leading questioning that produces false confessions, then that's a reason to make interrogations better and fairer (and perhaps a basis for due-process claims).
hen how a person happens to score on an I.Q. test -- a few points below or above 70 -- can determine life or death, we are surely adding a new element of arbitrariness to a death-penalty system that is already arbitrary in so many other ways. It's not that I.Q. tests are shoddy or unreliable (indeed, they've proved to be remarkably accurate at predicting academic success). But the same person can score differently on them at different times and under different circumstances. The mental retardation label ''is useful in that it allows mostly deserving individuals to get services and supports they often desperately need,'' writes Stephen Greenspan, professor emeritus of educational psychology at the University of Connecticut. ''It is fiction in that there is no justification for the idea that there is a magical line (let alone one determinable by a test score) dividing those who have or do not have this condition.''
Like other clinical definitions, the American Association on Mental Retardation's definition of the condition has frequently been revised. There have been 10 different versions issued over the last century. And the consequences of these refinements have not been trivial. A lowering of the I.Q. cutoff in 1973, for example, meant that the proportion of the American population classified as mentally retarded plummeted from 16 percent to 3 percent. Such core notions as whether people with mental retardation could ever improve have undergone a great deal of rethinking as well. For years, the standard definitions emphasized the condition's incurability; now they stress its mutability over time, and the power of a good support system to improve or even lift a diagnosis of retardation. Today, some people who might formerly have been classified as retarded are being classified as learning disabled, a different label with different implications.
Such changeability is one reason why some forensic psychiatrists are cautious about importing clinical diagnoses into the courtroom, or at least granting them a decisive role there. In the past, psychiatric experts called to testify in court have been able to tell themselves, truthfully, that they are offering a medical opinion, not a legally binding determination. This is distinct from what the court must then do, namely, render a moral and legal judgment about blameworthiness and punishment, into which many factors -- including a person's mental state but also, say, the heinousness and premeditation of the crime -- are swirled. With Atkins, though, ''the line between clinical standards and legal standards has seemingly been obliterated,'' writes Alan Stone, a professor of law and psychiatry at Harvard. ''A diagnosis of mental retardation is a constitutional bar to execution. This means that the battle of the forensic experts will be a struggle over the boundaries of a diagnosis that means life or death, a struggle in which scientific objectivity will be sorely tested and where it is difficult to claim that the court bears the burden of responsibility.''
Most retarded people on death row, like most retarded people in general, are in the mildly retarded range -- the upper range of the classification, which includes those who can and do, though usually with help, obtain jobs and driver's licenses, take care of themselves, marry, raise children and so on. Retarded people on death row tend not to have Down syndrome, which usually results in more severe retardation. In any case, people with more significant cognitive deficits either lack the capacity to plan or commit a serious crime or are declared incompetent to stand trial. ''Drooling guys who don't know how to feed themselves don't end up on the row,'' as Gregory Meyers, a lawyer in the Ohio public defender's office, puts it.
Many of the people I spoke to for this article pointed out that in making Atkins claims, they had to battle against a common misperception of the mentally retarded as more obviously impaired than most mentally retarded people are. They laughed and shook their heads over the stereotypes of slack-jawed guys humming tunelessly to themselves, hulking Lenny types, ''Deliverance'' extras. ''I was at a court proceeding in Florida where there were these two mixed-race defendants who were just gorgeous,'' Denis Keyes says. ''I mean, honey, these two guys took your breath away. And they were retarded, but you could imagine the jury was thinking nobody with mental retardation is that good looking.''
But if it's true that many people, even among those who support the death penalty, believe it is wrong to execute the mentally retarded, and at the same time true that many people hold in their minds an inaccurate stereotype of the retarded, then we may have a problem. It may be that the consensus the court identified -- holding that it is wrong to execute the mentally retarded but acceptable to execute schizophrenics or minors or people who sustained brain injuries after the age of 18 or people who were unimaginably mistreated -- may not be as stable as it seems.
Terrell Yarbrough, who is 22 and has been on Ohio's death row for three years, is one of the people whom the Atkins decision will probably save from lethal injection. His is one of the most persuasive of the 37 Atkins-related claims the Ohio public defender has filed. On the surface, it looks better, for instance, than did that of Ernest Martin, who claimed to have written an autobiography while in prison (''Casualty of Justice: A Black Man's Plight With the American Judicial System'') for which he planned a sequel (''The Case of the Exhumed Petitioner''). Indeed Martin's appeal failed, and he was executed on June 18.
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 grade and dropped out in the ninth. His grades throughout his school years were a welter of C's, D's and F's. Called to the stand during the trial of his co-defendant, Yarbrough's testimony consisted of the statement, ''On advice of my accountant, I invoke the Fifth Commitment Rights.'' He has told police detectives and various of his attorneys that he is 6 foot 1 (he is closer to 5-8), that he is from Harlem (he is from Pittsburgh), where he attended a Catholic school that he referred to as ''St. Jones,'' that he can write in Chinese and that he was tight with various prominent rap performers -- not suspecting, apparently, that anyone would notice the inaccuracies in his account. According to his current attorneys, who last summer filed a motion to overturn his death sentence in the wake of Atkins, he did not, at first, appear to understand that ''death row'' meant a death sentence. ''Terrell thought there was prison, there was execution and there was this other, discrete thing called death row,'' says his attorney Kathryn Sandford. ''I think he gets it now, though.''
When you tell a story like Terrell Yarbrough's, you face a choice. You can start with the crime, and if it is a capital 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 his mother was a this, and his troubles started when, and so on, and almost as often it's a horror story, too, of a different sort. And either version is true, in its way, but the one you choose has implications. For the people whose main goal, now, is to help Yarbrough evade death, the story always has to start with his retardation and, in some sense, to end there, too. It's not about his crime, which they would rather not discuss with you and don't generally discuss with him. Public defenders who work on capital crimes, a lot of them, anyway, have an aspect of the pus-eating saint about them; they are willing to stand by people who are often despicable because they believe so deeply in the role they must play in ensuring the justice system's procedural fairness. And because who else will speak for the reviled? In Ohio, I heard a story about somebody's death-row client who urinated on one lawyer's shoes and threatened to kill another's young children and who scared away some of his appointed defenders that way, but not all of them. The lawyer for Michael Bies, who was convicted of beating to death a 10-year-old boy in the course of an attempted rape, said of his client that ''he loved the guy'' and sat with his arm around Bies while I interviewed him.
Still, however much you believe in your mission, it probably helps in this line of work if you don't dwell too much on what the client did, not if you can't at least entertain the thought that he might not have done it. For the rest of us, it's different. When I met with Terrell Yarbrough one afternoon at the Mansfield Correctional Institution, I kept thinking about the crime that put him there. I couldn't help it.
At 5 a.m. on Memorial Day 1999, Aaron Land and Brian Muha, two students at Franciscan University in Steubenville, Ohio, were pistol-whipped awake by intruders and abducted from the house they shared with a third roommate, Andrew Doran. Startled out of a sound sleep by noises he couldn't identify and a confused feeling that something was wrong, Doran managed to slip away and call the police. When they arrived, Land and Muha were gone. The two men later convicted of the crime, Yarbrough and a brighter, rougher companion named Nathan (Boo) Herring, stole Brian Muha's car -- a 1996 Chevy Blazer he had borrowed from his mother to move his stuff into the house that weekend -- and forced the two men into it. They drove Land and Muha to a hillside overlooking a highway in Pennsylvania and marched them up it. There, according to the charges against them, they forced one of the men to perform oral sex on the other. Then they shot both of them at close range in the head with a large-barreled handgun. They took Muha's wallet and headed for an ATM machine in the Oakland section of Pittsburgh, where they tried unsuccessfully to use Muha's MAC card and where a security camera captured their images.
On the afternoon of that same day, a woman named Barbara Vey was leaving her apartment, which took up the entire top floor of a big old house in the Squirrel Hill neighborhood of Pittsburgh. Vey was a psychologist who ran a crisis program for traumatized children, but she wasn't working that day, since it was a holiday. She had an errand to do, which was to return a garden angel she had bought for her sister in Oklahoma City but had discovered was too large for the mailing box she had for it. Just outside her house, a young man she did not recognize said hi to her and she said hi back. Something about him -- the way he was just standing there, doing nothing in particular, plus the angry way a guy with him was talking to him -- made Vey nervous. And she remembered feeling relieved just to get in her car, a bottle-green BMW, and leave. When she returned, perhaps 15 minutes later, with a smaller version of her sister's gift, Vey went upstairs, answered a few phone messages, packed up the new garden angel and then decided she'd go enjoy the sunshine on her front porch. ''It was a holiday; there was nobody there,'' she testified. ''I changed my clothes and grabbed some things and put them in a bag -- soda, phone, a newspaper -- and was going to go outside on the front porch.''
When Vey reached the bottom step of the foyer, swinging the vinyl beach bag she had packed, two men jumped out at her. They were both black, and for a split-second the thought crossed her mind, absurdly, that the black engineer who lived in the downstairs apartment was playing some kind of joke on her. But these men, whom after a moment she recognized as the two she'd seen on the street, were yelling and screaming at her -- ''I'm going to shoot you, I'm going to kill you,'' and something, too, about her car. Vey sat down on the ground with her arms over her head and tried to make herself very small and very quiet and as calm as she could be, so that she wouldn't, as she put it, ''challenge'' the angrier of the two men, the one with the gun. And then the shorter, less agitated one, the one whom she would later identify as Terrell Yarbrough, did something odd. He put himself between her and the man with the gun. ''Don't shoot her,'' he said.
''When I sat down, it was almost as if he came forward to comfort me,'' Vey testified. ''It was very strange, and he kept saying 'Don't shoot her' to the other man.'' The short 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 in her locked apartment. So the short one put his arms around her and led her up the stairs and steadied her shaking hand while she opened the lock on her front door. Once inside, she crawled toward her keys and then handed them over. The men took them along with the wallet they had already relieved her of. Then the shorter one kissed her twice. And unlike Brian Muha and Aaron Land, Barbara Vey survived, and her testimony served both to identify Yarbrough and to complicate the impression of him.
Yarbrough was arrested at about 6 p.m. that day, back in Steubenville, where he was tooling around with a friend in Brian Muha's Chevy Blazer. A few hours earlier, he'd taken it to a car wash, and a few hours before that he'd filled the tank with the help of a good Samaritan he flagged down after running out of gas on the highway.
It isn't exactly clear what Yarbrough's protectiveness toward Barbara Vey might mean. Is it significant, as his trial attorney argued, because what he did for her constituted the ''sole acts of humanity'' in a brutal chain of events and therefore a partial redemption of Terrell Yarbrough? Is it significant, as his appeal stresses, because it shows how dumb Yarbrough is, how he could apparently delude himself into thinking that if he kept Herring from shooting Vey, she'd want to be his girlfriend? (Yarbrough's interaction with Vey demonstrates, as the appeal puts it, ''a serious lack of social skills and social understanding.'') Or does it suggest something else entirely: that Yarbrough had the capacity to shield a victim from his accomplice -- a capacity he chose not to exercise when the two of them were terrorizing and later killing Aaron Land and Brian Muha?
When I met Terrell Yarbrough, in an office in the building that houses Ohio's death row -- a building helpfully stenciled with the words ''Death Row'' -- he would not talk about the events of May 31, 1999, and his lawyers were there to assure his discretion. We had gotten a ride across the Mansfield Correctional Institution in one of the golf carts employees use to move around the vast, windswept quadrangle there, and now we were sitting in a room that was bare except for a few pieces of furniture. One of them, oddly, was an elegant old roll-top desk that somebody said had probably been salvaged from the 19th-century prison nearby, which is used now by movie studios or by people who want to stay overnight as a lark. In 1897, Ohio became only the second state to adopt the electric chair, which was widely regarded by humanitarian sorts as an improvement on the gallows; the one used here was a rather grand, polished-wood affair known as Old Sparky. Now, though, most people executed in Ohio and elsewhere die by lethal injection. The room had that familiar, institutional smell: a faint but unmistakable fug of burnt coffee, disinfectant and overcooked vegetables.
Yarbrough seemed glad to see us and disappointed I hadn't brought a photographer that day. We talked about how he liked to play basketball -- ''I'm like the baby basketball star here,'' he said. ''I'm the youngest guy on death row. But I done things half the cats in here would never do.'' And he talked about how other inmates paid him to write rap songs for them. ''Other dudes were hearing me rapping and, you know, feeling my style. It started when one dude asked me to write a rap, you know, to send his mom or something, about what it's like being on death row. And so I wrote what I thought about it, being that we're basically in the same boat.''
What he thinks about it, mainly, is that it's boring, despite the basketball and the rap songs and the books ''about young black men coming up'' that he likes to read and the reality TV that he likes to watch. TV can be kind of a bummer, though, because ''I watch it, and I see all these young cats doing positive things, and I think that could have been me.'' Yarbrough looks younger than his 22 years. He has dentures now, to replace the upper teeth that rotted after years of never brushing when he was a child. He has a wispy moustache, a prominent nose and big, heavy-lidded eyes. He calls his lawyers, Kathryn Sandford and Wendi Dotson, who are young and pretty, his ''two angels.''
When Yarbrough was 3, his mother went to prison on drug and theft charges. His father was an alcoholic and a heroin addict who never worked after he was laid off from a steel mill. And since Yarbrough's mother kept going back to prison or rehab (her life was supporting her habit, she testified, and that meant that over and over again she would ''go in a department store, take something, go on the street and sell it''), Yarbrough spent most of his childhood shuttling among relatives in and around Pittsburgh. There was Aunt Itellia, a technician with the gas company, who worried about all the bottles of sugar water Terrell seemed to have been raised on and who spanked him with a belt and complained about his swearing at the age of 2. There were Aunt Brenda and Uncle Tony, who ran a youth ministry out of their used-furniture store and who inspired Terrell to do some street preaching, a task for which he showed a flair, they said. There were Aunt Iola and Aunt Rebecca and eventually Terrell's older sister, Stacy. Still, Yarbrough says, he felt like he was doing O.K. as long as his father was alive. ''My mom was in prison, and she was always selling me promises she couldn't keep. But my dad was my idol because when he was coming up, he was an athlete, good-looking and all. He was a heroin addict, so when I visited him, I knew what to expect. He'd be nodding off, all doped up.'' His dad had nicknames for little Terrell -- nicknames like Dollar and Money. Before his father died, of AIDS, Yarbrough was ''smoking marijuana every day and snorting cocaine and popping pills, but I wasn't selling. When my dad eventually died, it really hurt me. I'm not using it for no excuse, but it's real, though. After that I started selling drugs, going to different states, bringing stuff back.'' Starting at the age of 15, he was arrested several times and served time in juvenile facilities.
Now, when he talks about his prospects for living or dying or how he thinks he got here, Yarbrough falls back on strangely pat and anodyne phrases. ''I hope for the best and prepare for the worst.'' ''I try to keep my head up and take it one day at a time.'' ''When you come to prison you find out who your real friends are.'' The crime for which he was convicted was, he says, ''a tragedy.'' He doesn't talk about being retarded, partly because that's not a word that his lawyers generally use with him: they don't, Sandford says, ''want to make him feel like a loser.'' Instead he says: ''I'm not going to sit here and tell you I haven't made mistakes in my life. I've made mistakes. But I'm a human being.'' At his own trial, in a statement he gave at sentencing, Yarbrough had managed a similar smoothness. ''I want to ask God to, you know, touch the families' heart, take away all their pain and suffering that they're going through. And just let them know I'm sorry. And I can understand, like, if the mothers, you know, hate me, because no one got the right to take, you know, no one off this earth. And you know there's not a day that goes by that I don't think of Brian and Aaron, and I wish I could turn back time, but I can't. . . . Ain't no one gaining nothing in this whole situation. And you know, not only this situation, it's the world today, you know. Violence doesn't solve anything.''
If they choose to, inmates of Ohio's death row can put out a plea for pen pals on a Web site, ohiodeathrow.com, that is run by an anti-death-penalty lawyer and priest named Neil Kookoothe. More than 60 of the 207 men now on death row have done so, filling out questionnaires that Kookoothe then fashions into something resembling a personal ad. Like most self-advertisements on the Web, these pages allow their authors to appear in any light they might wish to appear, barring, in this case, the light of free men the state has no plans to kill. Terrell Yarbrough, for instance, presents himself as a man with a young son, whom he loves ''with all my heart'' (he has no son; the two photographs he includes of himself with a solemn, round-faced baby show his nephew), as a 6-foot-3 guy, as a ''caring,'' ''sensitive'' guy who's had to harden his heart to survive ''behind walls of glass,'' as a guy from Harlem, Yarbrough's eternal locus of cool and as a guy who has written a poem called ''If a Million People Love You.''
Michael Bies, who is also on Ohio's death row and who also has a claim of mental retardation that may save his life, says truthfully on his page that he has ''not had a single personal visit'' in the years he has been on death row, that he is lonely, that he likes to read and dislikes people who are dishonest and play games. And then, of course, there is a lot he does not say.
Bies, who is now 31, was convicted in 1992 of killing a 10-year-old boy whom he and an accomplice, Darryl (Junior) Gumm, lured from a park into an abandoned building with a promise of $10 for gathering scrap metal. The boy was small for his age and wearing a partial cast on his foot where he'd dropped some weights. Gumm tried to rape him, and when the boy screamed and resisted, he and Bies kicked and beat him, with pipe, concrete and fists, to death.
Bies has an I.Q. that has been tested as low as 50 and as high as 68. At the time of his trial, he could not remember the year, and he wrote the following statement to the jury:
''I am sorry for everything. I am 20 years old. My sister died two months. I can't reader thing have happening all of my life. I wants my mother here to tell the court I am not a bad person. I have three kids of my own, too. Always play with my two sons all the time. I would beat as a kid by my mom's boyfriend. I am sorry, yes, for not testifying. I was honest on news to police -- that's police. I never been in court before. I afraid of it. I once to get mercy on me her. I will stay in jail for life if you will let me.''
The statement took him two hours to write, according to one of his current lawyers, Randall Porter, and Bies had considerable difficulty reading it aloud. At his trial, a psychologist called by the defense testified that Bies was 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 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 do if he found a stamped, addressed and sealed envelope, he said, 'I don't know.' When asked about the difference between a river and a lake, he said, 'I don't know that, either.' When asked how oranges and apples are alike, he said, 'They are not.' He was unable to interpret proverbs.''
When I spoke with him in March, Bies labored to read the release form that the prison had provided and labored to sign it. ''You're really getting me to work my mind today,'' he said to his lawyer and me, with a smirk that erupted into one of the explosive giggles with which he often punctuates his remarks. Bies is pale, with a mauvish prison pallor, squinty green eyes and a pronounced widow's peak. He said he had trouble understanding the legal aspects of his case -- ''I ain't no lawyer'' -- but that ''when Randall broke it down'' for him he could. And he said he tried to read books but ''wasn't good at it'' and had tried to follow the war in Iraq but had some trouble with that, too. He said he knew that as a kid, he had been in a lot of different hospitals and schools. He couldn't remember them all, but he didn't think any of them had helped because ''I was too far gone, too set in my ways, you might say. When you've had as many hospitalizations as I have, you start debating on if anybody can ever help you, anyhow.'' A little later, he tried to remember a term doctors had once used to describe him. ''Was it acting on impulse? Was that the word?'' he asked, turning to his lawyer. He has an ex-wife and two children, the older of whom is 13, and Bies said that his ''only regret out of all this'' was not being able to see those kids grow up.
What, though, is the crucial fact about Bies? Is it that he is mentally retarded? Is it that he has a documented history of hearing voices and of multiple suicide attempts and is probably mentally ill? Is it that he had encephalitis as a child or that he was once hit by a city bus when he tried to pull his little sister out of the way? Is it that his upbringing was a grand guignol of abuse and deprivation, featuring a floridly disturbed mother who often left her young children alone for days or in the care of deinstitutionalized mental patients? When Bies was 9, he witnessed his 3-year-old sister's rape by a baby sitter. When she was a teenager, the same sister, whom he says he was always very close to, died of a drug overdose.
In an affidavit, Jackie Hookanson, the director of clinical and educational services for the Victor Neumann School, a Chicago institution for emotionally disturbed children that Michael Bies attended, stated that in her 26 years of experience she had ''never seen a more chaotic family'' than Bies's. Hookanson arrived at the apartment one time when Michael had been absent from school for several days to find him and his brother tied to chairs being screamed at and whipped by one of their mother's boyfriends. He regularly came to school filthy and, on at least one occasion that Hookanson remembered, covered in bruises. And yet, Hookanson recalled in her affidavit, ''after about a year at Victor Neumann, Michael made significant improvements. When he was not acting out, he was a sweet, adorable and needy child. He was a joy to be around and was very fond of the staff.''
Maybe the most salient thing about Bies is the interplay of all of these things -- his mental illness, his intellectual liabilities, his upbringing -- his story, which is actually something more, or at least different from, a clinical diagnosis. In some ways, the label of mental retardation seems like the least salient thing about him, the least relevant to whatever claim he might have on our mercy.
ven some of the public defenders eagerly making use of the Atkins decision sometimes wonder about the logic of it. ''Looking over some of the people on the row, there are people who, O.K., are probably not mentally retarded -- maybe they have I.Q.'s of 80,'' David Bodiker, the Ohio public defender, says. ''They have had horrible lives, they flunked out of school, but they don't quite make the grade, so to speak. And you wonder why should there be that distinction? I'm looking down my list of guys on the row, and I see, for instance, David Allen: I.Q. 82. Poor grades. Born premature. Psychiatric problems dating back to age 8. Reginald Brooks. He had an I.Q. of 77 at one time, then 89. Now he's probably got about 91. His problem is more in mental health -- schizophrenia.''
Bodiker finds it troubling that some inmates perform better on I.Q. tests the longer they've been in prison, which means that while they still suffer from cognitive deficits, they may no longer technically qualify as mentally retarded. Partly they do better because they may be taking an I.Q. test for the fourth or fifth time, reaping the benefits of a practice effect. But more likely, their improved scores reflect the fact that, as Caroline Everington, a forensic mental retardation expert, puts it, ''in prison, many of them are living in a stable environment for the first time in their lives.'' In the strictest sense, these prison-improved scores are unimportant: the focus of the Atkins decision is on a person's mental status at the time of the crime, not the time of execution. And I.Q. scores must be backed up with tests of a person's ''adaptive functioning.'' But in a broader way they do matter: they remind you that the elements that make up a diagnosis of mental retardation are fungible. The reasons for that are perfectly legitimate, but when the diagnosis matters in the way it does here, it becomes a little scary.
When it comes to lesser crimes, the mentally retarded are not, as a class, held less accountable. (Evidence of an individual's mental liabilities can be presented during the trial and at sentencing and may influence a jury to exculpate him or a judge to grant a more lenient sentence.) Why should it be only capital crimes -- by definition the most brutal or the most harmful to the commonweal -- that entitle a mentally retarded defendant to a lesser punishment? ''Surely culpability, and deservedness of the most severe retribution,'' Scalia points out in his dissent, ''depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distinguish right from wrong) but also upon the depravity of the crime -- which is precisely why this sort of question has traditionally been thought answerable not by a categorical rule of the sort the Court today imposes upon all trials, but rather by the sentencer's weighing of the circumstances (both degree of retardation and depravity of crime) in the particular case.'' But for many people who favor the Atkins decision, the good of saving some of the condemned from execution supersedes almost all other concerns.
If you are for the death penalty and against the Atkins decision, as Scalia is, then you can argue for individualized justice, not categorical exemptions. If you are against the death penalty, you can be enthusiastic about Atkins because it saves people, and people who it is possible to think of as uniquely vulnerable -- or you can be skeptical about Atkins. You can be skeptical, in the first place, about the classes of people it leaves out. Why the mentally retarded and not the schizophrenic, whose particular demons and deficiencies make them, if anything, less able to conform to the law than people with low I.Q.'s?
Douglas Mossman, the forensic psychiatrist, argues that there are other groups who should, in the wake of Atkins, be considered for exemption from the death penalty as 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 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 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 trial, repentance was what he spoke about. He did not believe that Yarbrough should die; he was a Catholic and did not believe in the death penalty. What he said missed a lot of the nuances, and important ones, about Terrell Yarbrough's cognitive weaknesses. But it did reveal something about how it is that even some people who believe in the presence of evil and whose loved ones have been touched by it, even some people who believe firmly in retribution, can still oppose capital punishment. ''The Bible tells us that only God will judge us,'' Chris Muha said to Yarbrough that day. ''But it also tells us to confront our brothers and their wrongdoing. And why should we do this? Because unless you change, you will not go to heaven. And in that sense, Terrell, we are in this salvation thing together. And anyone who makes excuses for you is not helping you get to heaven. Anyone who makes excuses does not ultimately care about your soul.''
Blameworthiness -- not whether someone did a deed or not, but the extent to which they are culpable for it -- is a complicated matter, a matter of whole pictures. It would be a relief, in a way, if a diagnosis like mental retardation always settled the question of how much to blame a guilty person, but it would leave so much out of the picture. And some of those things -- moral agency, the nature of the crime itself -- might be the very things we care about most.
Margaret Talbot is a contributing writer for the magazine and a fellow at the New America Foundation.