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Death Penalty



Putting the Death Penalty to Death

© Third Millennium, L.L.C. June 30, 2002

By: Deacon Keith A. Fournier

Few issues today are as divisive—and as important—as capital punishment.

Executions of mentally retarded criminals constitute “cruel and unusual punishment” and are prohibited by the Eighth Amendment to the United States Constitution according to the United States Supreme Court. The Virginia case of ATKINS v. VIRGINIA, decided by the United States Supreme Court on June 20, 2002, concerned a retarded man named Daryl Renard Atkins, who was convicted of abduction, armed robbery, and capital murder, and then sentenced to death.

In the opinion of the Court, the fact that Mr. Atkins was severely retarded meant that he lacked the requisite culpability. This was the basis for its ruling that the State cannot apply the sentence of capital punishment during the penalty phase of its criminal proceeding when a person with a mental disability committed the crime. The rationale of the Court was that such a mental impairment resulted in a diminished capacity and that therefore the punishment lacked proportionality to the offense.

The facts of the offense are chilling and without question. In the Supreme Courts opinion we read the following summary:

“At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.”

At the foundation of the High Court’s significant break with its own past precedent supporting the application of the “death penalty” -and its long standing practice of rarely overturning a States exercise of its own discretion in its application of the death penalty- The High Court summarized its analysis in its these words taken from its own syllabus:

“First, there is a serious question whether either justification underpinning the death penalty–retribution and deterrence of capital crimes–applies to mentally retarded offenders. As to retribution, the severity of the appropriate punishment necessarily depends on the offender’s culpability. If the culpability of the average murderer is insufficient to justify imposition of death, see Godfrey v. Georgia, 446 U.S. 420, 433, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. As to deterrence, the same cognitive and behavioral impairments that make mentally retarded defendants less morally culpable also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.”

Additionally, this same Court also recently ruled in a case called RING v. ARIZONA, that the decision to impose the death penalty must be decided by a jury and not by a Judge during the penalty phase of a criminal proceeding. Most Court observers feel that the trend evidenced by both of these rulings will lead to fewer and fewer executions.

As a Constitutional lawyer, former prosecutor, policy activist and Court watcher, I was not surprised by either decision. I welcomed them both as a part of a much broader conviction that I hold. As a Catholic citizen, I welcomed one more State action in a series of actions that I believe will lead to the “death of the death penalty”

These latest decisions follow upon actions taken by several States, led by both Republican and Democrat Governors, to implement a moratorium on Capital Punishment. The reason for these moratoriums is because its application has been unjust, discriminatory, and, in an increasing number of instances, later been found (through D.N.A. and other advanced forensics) to result in the killing of the innocent by the State!

When I heard the news of both opinions, I breathed a sigh of relief.

I reflected back upon one of several recent executions in my home State of Virginia. Though it occurred almost two years ago, it is as fresh in my mind, and heart, as if occurred yesterday.


On Thursday, September 14 2000, while still proclaiming his innocence, Derek Barnabei was executed by the State of Virginia with an injection of lethal chemicals. Convicted of a brutal rape and murder, he spent his last hours with a priest. Despite the intervention of Pope John Paul II, and voices from around the globe, the State Executioner carried out the execution and the announcement of his death was aired on television.

I remember that I had awakened that Thursday morning, made the sign of the cross, and gratefully greeted ...

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