The Least Among Us: Mental Retardation and the Death Penalty in Georgia

Matthew 25

“Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.”  (Matthew, 25: 40)

“Whoever welcomes this little child in my name welcomes me, and whoever welcomes me welcomes the one who sent me, because the one who is least among all of you is the one who is greatest.” (Luke, 9:48.)

 So who are the “least of these,” the “least among all” of us?  And how can “the least” of us be in fact “the greatest” among us? Jesus knew the Torah well, and his teachings are based on several of the texts from the Torah, especially from those of Deuteronomy referring to the most marginalized of people in the ancient world: the orphan, the widow and the stranger.  “The Lord your God…executes justice for the orphan and the widow…loves the strangers, providing them food and clothing.” (Deuteronomy 10:17) “You shall not deprive a resident alien or an orphan of justice, you shall not take a widow’s garment in pledge. Remember that you were a slave in Egypt and the Lord your God redeemed you…” (Deut 24:17-18)…”When you have finished paying all the tithe of your produce…giving it to the Levites, the aliens, the orphans and the widows, so that they may eat their fill within your towns, then you shall say before the Lord your God ‘I have…neither transgressed nor forgotten any of your commandments.’” (Deut 26: 12-13)

Jesus called the marginalized people of his own time “members of [his] family.”  These were the ones that Jesus’ disciples were called to care for: the hungry, the thirsty, the stranger, the naked, the sick and the prisoners.  As in the time of Jesus, so too today, such people are cut off from the rest of society.  Perhaps a family member or friend of ours is one of these, and then of course we will be involved in caring for that person, but mostly we do not see the poor, the hungry, the stranger, the homeless, the sick, the prisoners.  They are invisible people, especially those who do not have the resources to assert and defend themselves (the unborn, the elderly infirm, prisoners, homeless or undocumented people, etc.)

Warren Hill, Mental Retardation and the Death Penalty in Georgia

The Eighth Amendment to the U.S. Constitution prohibits “cruel and unusual punishment. In a death penalty case in 2002 (Atkins vs. Virginia), the U.S. Supreme Court ruled 6-3 that executing mentally retarded individuals violates the Eighth Amendment’s ban on cruel and unusual punishment.  The majority opinion held that unlike other provisions of the Constitution, the Eighth Amendment should be interpreted in light of the “evolving standards of decency that mark the progress of a maturing society.”  So, the Court went on, because of the  “consistency of direction of change” toward a prohibition on the execution of the mentally retarded, and the relative rarity of such executions in in states that still allow it, a “national consensus has developed against it.”  The Court, however, left it to individual states to make the difficult decision regarding what determines retardation.

Among the states, Georgia currently has the most stringent interpretation for proof of mental retardation, requiring that defendants prove their mental retardation “beyond a reasonable doubt.”  Most other states require that mental retardation be proved by a “preponderance of the evidence,” a significantly lower standard of proof.  In the case of Georgia death-row prisoner Warren Hill, in April, 2013, Hill’s lawyers were able to present evidence to the U.S. 11th Circuit Court that all examining experts, even those who had originally found that Hill was not mentally retarded based on the standard, now agreed that he was mentally retarded.  Despite the clear testimony from all the experts, the 11th Circuit Court refused to allow Hill’s attorneys to pursue their claim that Hill is mentally retarded beyond a reasonable doubt.  The strong dissenting opinion in this decision found that “the idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world a model of fairness.”   Warren Hill is now awaiting his execution date.

Recently, I was introduced to the book Cut Dead But Still Alive: Caring for African American Young Men by writer and Candler School of Theology (Emory) Professor Greg Ellison. In his book, Ellison makes the point that many young African American men, among other groups in our country and throughout the world, have become invisible.  Ellison explains how he came about the image of “cut dead” from the writings of the 19th century psychologist William James. “James asserted that it would be a cruel and fiendish punishment for any person to go unnoticed or unseen, to be made invisible…James recognized that people would rather be tortured than to be ‘cut dead’ – deliberately ignored or snubbed completely…Once you begin to see a person as one who is made in the image of God once you begin to see a homeless person as someone’s uncle, or brother or aunt or sister or mother, you can’t just step over them as a piece of trash because you have seen them fully…”

There are millions of human beings who for want of resources of all kinds are “cut dead” from our world of success.  I think especially of those who are mentally retarded.  My sister Kathleen Anne Moon was born in 1953, and in the months following Kathy’s birth, Mom and Dad and we two boys knew that there was something terribly wrong with her.  She did not move her limbs like other babies and often she seemed not to see us.  For a long time, she did not respond to our chatter over her with even the faintest smile.  Mom and Dad took her to one doctor after another, until we learned sometime after her first birthday that she had cerebral palsy.  Perhaps she would never walk and though she was not in those first years of her life old enough to have an evaluation of her intelligence, doctors believed that she was mentally retarded.  Of course, we loved her and we showed our love for her in all the ways a family does.  We held her close, we talked to her even though she did not respond, we played with her, we fed her – when, after she was no longer nursing, we understood that she could not feed herself.  And I became her godfather.  That was a special responsibility I knew.  God loved Kathy, but how could I ensure that she would know that and come to serve God?

As the years went by, Kathy was finally able to walk with the assistance of braces and crutches, and she was able to talk to us, even to laugh with us.  But our conversations with her were limited. She was not able to respond to questions with more than very simple answers, and she did not seem to understand anything beyond the current situations or challenges.  Kathy is now in a nursing home in California and she is about to celebrate her sixtieth birthday.  She is confined to a wheelchair and her activities are restricted, but visits with her are joyful events.  She likes jokes. So we always come prepared with some of those and some special sound effects (e.g. Donald Duck imitations).  She laughs so hard that she cries and then she wants a hug.  It is obvious to us that God loves Kathy in a very special way.  God cares for my sister because she is poor, because she is one of His little ones.  You might say that God has a preference for Kathy because she is poor in physical and mental resources.   Because she is one of the “least among [us]”, one of God’s “little ones,” she becomes one of “the greatest.”

So this must also be true of others who are mentally retarded, even death-row prisoners, those who are much less innocent than my sister, but who in God’s eyes are loveable because they also are among “the least of these members of [God’s] family.”

Over the past eight years, Mary and I have had the privilege of knowing two death-row prisoners, Raymond and Michael.  We have often visited with them at the prison in Jackson and have kept up a lively correspondence with each of them.

We have known Michael since October 2012.  According to the evaluations of court-appointed psychologists, Michael has an IQ below 70, but his case is following the course of Warren Hill’s case.  So it is likely that he, like Warren, will soon exhaust his appeals and be faced with an imminent warrant for his execution.  In 1987 Michael was convicted of having killed a man during an armed robbery.  He has been on death row for the past twenty-six years, and by his own choice is now living in solitary confinement at the prison in Jackson.  He has told us that “living in solitary” keeps him away from negative contacts at the prison and lets him think in peace about his life and about the regrets he has for the hurt he has caused others.  Despite his situation, Michael seems to us to be full of hope.  He has a practical attitude about what he can and cannot do, and a shrewd way of sizing up challenges and deciding what is worth struggling for.  He also has a broad smile and a vibrant laugh, and he often expresses concern for those around him, including us “more mature folks.”  We hope that the prison authorities will soon include us on Michael’s regular visitation list, and he is trying to make that happen as soon as possible, but we have told him that we support him and will be satisfied with whatever kind of visitation and communication rights the authorities will eventually grant to us.

We met Raymond in 2005 and we learned from our conversations with him, as well as from his lawyer and newspaper articles about him that several evaluations had indicated that he also had an IQ of less than 70.  The appeals in his case were based on the appeals in the case of Warren Hill (see box above).  If it could be “proved beyond a reasonable doubt” in court that Raymond was mentally retarded, he would not be executed.  But our conversations with Raymond, both via letter and at the prison were rarely centered on his actual court case.  Instead we talked about our families, about health issues, about sports (No one knew more about the NFL than Raymond!).  I sent him short stories, some of them mine, with questions he and others could answer simply. During our visits to the prison, in phone calls and in his letters, he told us about the many, many challenges he faced as a prisoner on death row, not just from the prison authorities but also from some of the more aggressive prisoners he had to deal with every day.  We also shared funny stories with each other.  Despite his situation, Raymond saw humor in his everyday life.

On Saturday, September 15 2012 Raymond suffered a massive cerebral stroke and died at the Atlanta Medical Center on Sunday, September 16. I was honored to speak at his funeral, and Mary and I were pleased to begin a friendship with his daughter whom we had not previously met.  Raymond was a man, like so many others on death row, including Michael, who had no real support or guidance as a child and teenager. Without a high school education and with little or no legitimate means to make living, he – like so many others – fell in with a crowd and followed a code of asocial behavior, which led finally to murder during a hold-up and a death sentence conviction over twenty years ago.

But the Raymond that we knew was gentle and solicitous.  In the face of his daunting circumstances, he was humble and repentant.  He would often say, “I just try to stay clean, stay out of trouble, to do the right thing…I leave others alone, even though sometimes they insult me and try to get me to fight.”  Because of his very low IQ, Raymond, like Michael and Warren Hill, appealed his death sentence as “cruel and unusual punishment” according to the 2002 US Supreme Court decision.

The State might have executed him in early 2013, despite his IQ, but in his death, our friend Raymond jilted the State and rebuked those longing to have him “suffer for his crimes.”  We pray for Raymond and we pray with him to God for MERCY on us all, all of us sinners who sometimes ignore the “least among the members of [God’s] family,” but who nevertheless struggle “to stay clean…to do the right thing.”

Kyrie Eleison, Christe Eleison, Kyrie Eleison.

Bill Moon, Member of the Task Force
Georgia Catholics Against the Death Penalty (GACADP)

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