Last night Georgia executed Kenneth Fults, a man with documented intellectual disabilities. Fults shot and killed a woman when he unexpectedly found her at home during a robbery. There is no question that Fults was guilty of murder. Indeed, he had shown shown deep remorse for his actions.
The pressing legal question was: should someone who has serious intellectual disabilities be eligible for execution?
Fults’ IQ score had been assessed at least three times, and came in at 68, 74, and 72. A score of 70 or below is typically considered to be one of the factors that indicate disability. Testing conducted by the State of Georgia also demonstrated that Mr. Fults had a fifth-grade reading level and a third-grade math level. In his clemency petition, which the Georgia Board of Pardons and Paroles denied, Fults’ lawyers explained he “functions in the lowest one percent of the population.”
The U.S. Supreme Court has clarified on multiple occasions that the death penalty is supposed to be reserved for individuals who commit the most aggravated homicides and are the most culpable defendants. In 2002, U.S. Supreme Court found that the Eighth Amendment prohibits the death penalty for persons with intellectual disability. In 2014, the Court determined that states must take into account a variety of factors when determining whether someone is intellectually disabled, and that relying on a strict IQ cutoff score of 70 is not constitutional. “To impose the harshest of punishments on an intellectually disabled person,” Justice Anthony Kennedy wrote, “violates his or her inherent dignity as a human being.” The Court used similar reasoning when they banned the death penalty for persons under the age of 18.
Only seven states have performed an execution within the past two years. In 2015, 68% of executions carried out nationally involved persons with intellectual disability, mental illness, or severe childhood trauma. Georgia alone accounts for nearly 20% of the executions carried out over the last two years. After last night, Georgia is responsible for one-third of the twelve executions that have taken place in America so far this year.
Who are the people that Georgia has executed?
Last month, Georgia executed Joshua Bishop who was just 19 years-old when he committed the murder. Bishop was sentenced to death even though his older co-defendant received life without parole. But Bishop’s case appeared doomed from the start. His lawyer had no experience in complex murder cases. Instead, the lawyer usually dealt with civil cases and Bishop’s case was his first murder trial. Perhaps unsurprisingly, the lawyer did not present any evidence at all on behalf of his client at the guilt phase of the trial, including evidence that the investigating officers on the case believed that the co-defendant was more culpable.
At least two jurors swore that they would have voted against the death penalty had they known the full extent of the mitigation evidence. From the age of three weeks old, Mr. Bishop witnessed his mother “receive black eyes, cuts, bruises, broken ribs, punctured lungs, get thrown from a moving car, and have her teeth knocked out.” When he was as young as 10 years old, he was permitted weekend visits with his mother where he began abusing alcohol and sniffing gasoline to get high during the visits. He was dependent on alcohol and drugs before he was 15. When Mr. Bishop was returned permanently to his mother’s care they had no home and slept in abandoned houses, cars, and under bridges. When evidence of Mr. Bishop’s background was presented to the jury, “many of the jurors, attorneys, and spectators were in tears.”
The executed also include Warren Hill and Andrew Brannan. Hill had a 70 IQ score, and three state employed physicians declared him intellectually disabled. Brannan was a decorated Vietnam combat veteran who had been diagnosed with both post-traumatic stress disorder and bipolar disorder. The Department of Veteran Affairs categorized him as 100% disabled.
One has to wonder whether these are really the most culpable offenders deserving of the worst punishment, or whether they are functionally indistinguishable from the category of people that the Supreme Court has said should not be executed.