IN AMERICA

Cruel and Unusual

By BOB HERBERT

Antonio Richardson had already eaten what was supposed to have been his last meal. Now he was waiting, frightened, in the prison cell with the gray walls and the telephone at the Potosi Correctional Center in Potosi, Mo., about 65 miles southwest of St. Louis.

The state of Missouri has a death penalty but no death row. Executions are carried out in the same prison wing as the infirmary at Potosi. In the last few hours of their lives the condemned prisoners are kept in a cell near the infirmary and are allowed to make and receive as many phone calls as they like.

Time had nearly run out for Antonio Richardson when word came about 10:15 p.m. Tuesday that the U.S. Supreme Court had ordered a temporary stay of his execution. Mr. Richardson had been scheduled to be killed by lethal injection at 12:01 a.m. Wednesday.

Mr. Richardson, who is brain-damaged and mentally retarded, was part of a group of two young men and two teenage boys who raped and murdered two young women in St. Louis in 1991. He was 16 at the time of the attack.

Only the United States, Congo and Iran continue to execute people for offenses committed when they were juveniles. But that is not the issue on which Mr. Richardson's case — and life — hinges. His lawyer, Gino Battisti, is trying to convince the courts that it is a cruel and unusual punishment, and therefore a violation of the Eighth Amendment, to execute someone who is mentally retarded.

What passes for justice in some of these cases is ludicrous. A lawyer for Antonio Marquez, a brain-damaged and mentally retarded man who was executed in Texas in 1995, would later say, "I was never able to discuss the specifics of his legal case with him, but instead we talked a lot about his favorite animals, things he liked to draw, and how he missed being able to see his brothers and sisters."

Anthony Porter — whose I.Q. was 51, among the lowest on record for a condemned prisoner — spent 16 years on death row in Illinois. At one point he was just 48 hours away from execution when the State Supreme Court granted him a reprieve. Which was a good thing. Because it turned out he was innocent. After all those years on death row, he was exonerated and released in 1999.

The U.S. Supreme Court considered this issue more than a decade ago, and ruled in 1989 that executing the mentally retarded was not a violation of the Eighth Amendment. Justice Sandra Day O'Connor, writing for the majority in that case, said there was insufficient evidence of a "national consensus" against such executions. At the time, Georgia and Maryland were the only states that barred the execution of the mentally retarded.

Mr. Battisti, Antonio Richardson's lawyer, has asked the Supreme Court to consider his argument that such a consensus has since developed. Tuesday night's stay of execution will give the court time to decide whether to hear his argument. If it decides not to consider it, the stay will automatically expire.

Since 1989, 11 additional states have enacted laws prohibiting the execution of the retarded, and a number of others, including Missouri, are considering such laws.

Capital punishment is always problematic. But additional serious difficulties arise when those subject to the death penalty are mentally retarded. It is extremely difficult to determine the level of culpability of offenders with mental handicaps, and the death penalty is supposed to be reserved for the most blameworthy perpetrators of the most heinous acts.

In addition, mentally retarded defendants most often find it difficult, and sometimes impossible, to participate effectively in their own defense. And there are documented cases of mentally retarded individuals confessing to murders that they hadn't committed.

Gino Battisti told me yesterday that, given the opportunity, he will ask the Supreme Court to hold as a matter of law "that there now exists a national consensus against executing retarded people" in the United States, and therefore such executions violate the Eighth Amendment.

"That's the single issue I have in my petition," he said. "That's my only issue."

His client's life was at stake and he'd been up all night. And over the phone you could hear the exhaustion in his voice.