It is unconstitutional to execute mentally retarded prisoners in the United States. The state of Texas, however, appears to have found a loophole, according to a published report.
Psychologist George Denkowski, an expert witness oft-used by Texas prosecutors, has been utilizing "junk science" to elevate the intelligence evaluation scores of mentally deficient death row prisoners, according to a new report in The Texas Observer.
In the Supreme Court's 2002 ruling on Atkins v. Virginia, Justice John Paul Stevens wrote, "Because of their disabilities in areas of reasoning, judgment, and control of their impulses ... [the mentally retarded] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Because of this, the justices found it "cruel and unusual" to put the metally deficient to death, leaving it to the states to establish a framework by which such individuals could be identified in capital cases.
However, Texas Governor Rick Perry rejected a bill that would have established rules to determine who is mentally retarded. Left grasping, courts invented their own criteria, turning to psychologists for the complicated evaluations.
Having played a key part in two-thirds of the state's Atkins appeals, Dr. George Denkowski has built a lucrative practice off ensuring the mentally retarded are executed, his critics say. Denkowski's reputation for declaring prisoners fit to die has earned him "almost Dr. Death status," attorney Robert Morrow told reporter Reneé Feltz.
For $180 an hour, the 30-year veteran psychologist would evaluate a prisoner's mental standing. For an additional $250 an hour, he would testify. And Denkowski almost always worked for the prosecution, the Observer noted.
After his evaluation of mentally retarded prisoner Daniel Plata was thrown out by a Texas judge, who called Denkowski's methods "fatally flawed," his critics became emboldened. Dr. Jerome Brown, who had worked on several of Denkowski's cases in the past, filed a complaint with the state licensing board for psychologists, charging that Denkowski was unethically altering testing methodologies to drive adaptive behavior scores higher.
"It's essentially junk science," Brown argued.
However, "when [Denkowski] went into the courtroom, he was the expert," Feltz told RAW STORY in an exclusive interview. "He could give concise summaries of what he found when he diagnosed these people. The defense psychologists, they would go in there and kinda ramble, they're not as polished, they haven't been through this 20 times already and the judges just found Denkowski much more convincing."
In one case, she added, Denkowski went as far as to argue that because a prisoner was a Mexican immigrant and did not have the benefit of a public education in the United States, the state could reasonably assume that had he been educated stateside he would be a functioning adult, therefore was fit to execute.
"It's a bizarre argument," Feltz explained, "but he knew how to say that in a polished way to the judges. The judges weren't that well informed about science to begin with, so they accepted it."
Since complaints were lodged against Denkowski, the Texas Board of Examiners of Psychologists has found that at least three of his cases were littered with scoring errors. Now Denkowski is facing a review by the state licensing board on Feb. 16, when his career as a psychologist could end.
Already, three of the Atkins appeals he testified on have been placed on hold pending the outcome of the hearing. Denkowski evaluated 29 men in total; some have already been executed.
If the state removes his license, nearly all of those cases could once again be called into question.
"It's a labyrinthine process," Feltz explained, but the possibility exists that some of the prisoners Denkowski evaluated could be spared their lives. "[The three cases on hold] will pose an interesting bellwether as to how the other cases may play out."
"We're talking about people who are basically guilty of the crimes they're accused of committing," she continued. "... So, it's hard for a lot of people to look at them and say, 'I have a lot of compassion.' But the Supreme Court decided that if you're going to have this death penalty machine, there's a certain way in which it should operate. Executions should not be used in capital cases in which the defendant is found to be mentally retarded."
Feltz's report was produced in conjunction with the investigative fund at The Nation Institute.