The COVID 19 pandemic has brought Americans hard lessons in fear and isolation. But it also has laid bare other long-simmering pandemics — racism, inequities in health care, divisiveness, hidden biases. For people with intellectual disability, fear, isolation and bias are not new; they’ve experienced these conditions much of their lives. The time has come to awaken our country to what we can and must do to end the inequities they face. We can unite in action now by demanding that the government enforce the law and stop risking the execution of individuals with intellectual disability.
Here’s a place to start: Mark Jenkins is a man with intellectual disability soon to face the execution chamber on Alabama’s death row. Convicted of the 1989 murder of Tammy Hogeland, he is at risk of being executed despite the Supreme Court’s mandate that individuals with intellectual disability are ineligible for the death penalty. He has asked the Supreme Court to grant him a hearing to prove his intellectual disability and is awaiting their response.
Today we read a lot of articles about innocent people trapped on death row, which is a terrifying reality of our nation’s capital punishment system. No innocent person should be convicted, let alone executed. Like the execution of an innocent person, the execution of someone with intellectual disability is a grave injustice, even when the crime was horrific. Our country¹s modern understanding of “justice” and “decency” in punishment, in theory, prioritizes more than just innocence or guilt; it also prioritizes the dignity of the individual facing punishment. In Atkins v. Virginia, the Supreme Court relied on this understanding to rule that the execution of individuals with intellectual disability is cruel and unusual punishment.
But no court has allowed Jenkins to prove his intellectual disability. Why? Because, in reality, our legal system continues to fail to enforce the Supreme Court’s mandate in Atkins. This is why I have joined many others in urging the high court to hear his case and give Jenkins a hearing that the Constitution demands and that dignity-centric justice necessitates.
Individuals with intellectual disability on death row must be given their day in court. In fact, approximately 136 individuals have been saved from execution after they had the opportunity to prove their intellectual disability. The brief that I joined highlights the stories of five of these individuals — men who found themselves in the same situation as Jenkins, but who were given the chance to prove their intellectual disability. Like Jenkins, they struggled to learn basic tasks in school such as counting coins or telling time, and were placed in special education classes. They functioned as adults with a third-grade reading level; they were limited to menial work tasks, such as bringing tools to others. They relied on others to obtain housing and pay their bills. And at times they were bullied by their peers for being “slow.”
Unlike these men, Jenkins repeatedly has been denied the opportunity to prove his intellectual disability for 30 years by courts blinded by misconceptions, stereotypes and incomplete evidence. Indeed, an Alabama court perpetuated offensive stereotypes that individuals with intellectual disability cannot maintain relationships or be employed. For example, the court said it was convinced Jenkins did not have intellectual disability because he had worked at a gas station. This stereotype is harmful and has no basis in science. The Supreme Court should right this wrong.
Our law’s 20-year-old prohibition on the execution of individuals with intellectual disability has not saved every person with intellectual disability on death row from execution. To the contrary, at least 25 such individuals have been executed, eight of whom were executed in the past five years. That is 25 too many. Modern-day justice demands that courts do better, and that the execution of an individual with intellectual disability be taken as seriously as the execution of an innocent person. Indeed, at least five men exonerated from death row had intellectual disability — one factor that made them more vulnerable to wrongfully ending up on death row.
As recently as the late-20th century, our government has stigmatized, sterilized, experimented on, and even killed individuals with intellectual disability. In theory, the government has stopped executing individuals with intellectual disability. In reality, though, the government still executes them. Mark Jenkins’s life is at serious risk. He is not asking for a second bite of the apple, but rather, a first bite to prove his intellectual disability. In this time when we are all the more conscious of harmful biases and mistreatment towards marginalized groups, we cannot stand on the sideline — and neither should the justices of the Supreme Court.
Give Mark Jenkins his long-overdue day in court, before it’s too late.
Tim Shriver, chairman of Special Olympics and founder of UNITE, is a signatory to an amicus brief filed March 1 requesting that the Supreme Court hear Mark Jenkins’s cert petition. Follow him on Twitter @TimShriver.