Sitting in court, Barry Lee Fairchild would hold law books upside down and pretend to read. He would nod as his lawyers explained his case to him, but then reveal that he understood almost nothing. At his clemency hearing, as attorneys pleaded for his life, he fell asleep.
Fairchild, who was convicted of the 1983 kidnapping, rape and murder of an Air Force nurse, had an IQ that measured as low as 60 and as high as the mid-80s. He failed almost all of his classes in school, his attorneys said, and had to repeat most of them. He finally dropped out around 8th grade.
Still, a federal judge ruled Fairchild was not mentally retarded. On an August night in 1995, Fairchild was put to death by lethal injection.
The U.S. Supreme Court’s decision Thursday that the execution of the mentally retarded violated the 8th Amendment’s ban on cruel and unusual punishment was a bittersweet victory for the attorneys and families of mentally retarded inmates who have been executed as well as others involved in the issue.
Anti-death penalty organizations and others estimate that more than 40 inmates with evidence of mental retardation were executed since 1976, when the death penalty was reinstated in the United States.
Among them are inmates like Oliver Cruz, executed in Texas in August 2000 though he could barely read or write and failed 7th grade three times, and Ricky Ray Rector, executed in Arkansas in January 1992. Rector’s mental limitations were clear as a child, but they became more pronounced after he shot himself in the head after he killed a policeman.
On the night he was put to death, Rector ate his last meal but put aside his dessert, saying he wanted to save it for after the execution.
“It didn’t start to be cruel and unusual today, and yet we have killed scores of people,” said Lawrence Marshall, legal director of the Center on Wrongful Convictions at Northwestern University’s law school. “This ruling speaks loudly about the death penalty and where the country and the courts are going.”
Indeed, the Supreme Court’s landmark ruling–13 years after a previous ruling said executing the mentally retarded did not violate the Constitution–represents another defining moment in the death penalty debate.
Since Gov. George Ryan declared a moratorium on executions in Illinois more than two years ago, a debate that once was largely confined to the question of whether capital punishment was right or wrong has been dramatically altered.
Support for the death penalty began to erode as more and more innocent inmates were freed from Death Row, which prompted a growing public unease.
Now, some observers say it would not be surprising if the Supreme Court or individual states further narrow eligibility by banning executions of the mentally ill or those who committed crimes as juveniles.
More Top Picks Magic Chef Mc110mb
But state lawmakers have proved reluctant to enact too many reforms while a majority of Americans still favor capital punishment, fearful they would be perceived by voters as soft on crime.
Kent Scheiddeger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento, downplayed any notion the court’s decision presaged a broader assault on the death penalty.
In fact, Scheiddeger argued, it may actually strengthen the hand of executioner states because it “kind of takes away one of the arguments [death penalty opponents] have got against the present system.”
Others fear the Supreme Court’s ruling will prompt inmates to flood the courts with false claims of retardation.
The Supreme Court ruling will force states such as Illinois, where it has been legal to execute the mentally retarded, to define mental retardation and determine standards for applying that definition in capital cases.
Many states that prohibit executing the mentally retarded set the bar at a 70 IQ, saying anyone who scores that or below and who has shown signs of mental impairment before they turned 18 may be considered mentally retarded and cannot be executed.
Arkansas, where Fairchild was executed, has an IQ ceiling of 65.
Fairchild confessed to abducting and raping 22-year-old Marjorie Mason, who had been at a Little Rock Air Force base for only 10 days when she was slain. A federal judge ruled Fairchild was not actually the triggerman, but Arkansas law allows the death penalty for accomplices.
George Baroff, a clinical psychologist at the University of North Carolina at Chapel Hill examined Fairchild in 1989 at the request of defense attorneys.
Baroff said Fairchild had the mental functioning of an 11-year-old and it was impossible to tell with certainty if he had understood his Miranda rights in 1983, when the crime was committed.
“I would have been surprised if he did understand,” said Baroff.
Chris Raff, who prosecuted the case, remains convinced that Fairchild was guilty and that he was not mentally retarded. He said that numerous courts reviewed the claim of mental retardation but turned them aside.
“Everyone was sure he was guilty,” said Raff.
In the end, the federal judge hearing Fairchild’s appeal rejected the claim and allowed the execution to proceed.
“We’d be in court and he’d fall asleep,” said Steven Hawkins, one of Fairchild’s attorneys and now the executive director of the National Coalition to Abolish the Death Penalty. “I wanted to scream to the judge, `Look at this.'”
Fairchild’s mother, Merdine, 66, described her son as “slow” and said Barry Lee was devastated by the death of his father.
When he was 12, he brought back a jar of dirt from his father’s grave, kept it on his nightstand and talked aloud to his father, she recalled in an interview from her home in North Little Rock.
She said she was pleased that the Supreme Court decision will spare the lives of at least some prisoners on Death Row. Even if convicts committed horrible crimes, “two wrongs don’t make a right,” she said.
Although prosecutors often dispute claims of mental retardation and court hearings become battles between competing experts, there are times when prosecutors have conceded a defendant was mentally retarded.
Mario Marquez was executed in Texas in 1995 for the 1984 rape and murder of his former wife’s 14-year-old niece in San Antonio. Although he was convicted only of the niece’s murder, Marquez also was accused of raping and murdering his former wife in the same attack.
Marquez’ lawyer on appeal, Robert McGlasson, said Marquez’ IQ was in the mid-60s and that he suffered other mental deficits. As a child, he had been abused by his father and later his parents abandoned him. As a teen, Marquez inhaled spray paint, which McGlasson said caused brain damage.
McGlasson, now a federal public defender in Atlanta, remembers meeting with Marquez at the prison in Huntsville and struggling to make Marquez understand his case. He said he envisioned speaking with Marquez as talking through a roll of cotton; the meaning of everything he said was muffled.
Marquez could not assist with his defense. McGlasson said Marquez did not tell his trial lawyer about his drug use because he was afraid he would get into trouble, though he already faced capital murder charges.
“I would communicate with him and it was just like talking to a child,” said McGlasson.
Prosecutors conceded that Marquez was mentally retarded. Still, Texas allowed the mentally retarded to be put to death and, in January 1995, Marquez was executed by lethal injection.
Even now, McGlasson cries as he recalls his last moments with Marquez in a holding cell next door to the death chamber. They began to talk about heaven and Marquez said he could envision it as a place with a lot of gold. McGlasson asked what he would do when he got there and Marquez, who often talked about his favorite animals, said, “I want to be God’s gardener and take care of the animals.”
Now, seven years later and with a ruling from the Supreme Court that likely would have spared his client, McGlasson has mixed emotions.
More Top Picks How Long Does Vision Therapy Take To Show Results
“One thought would be that maybe I should feel vindicated,” he said. “But the truth is I just feel an overwhelming sadness, just like I experienced when Mario was executed.”