South Dakota Executes an Intellectually Disabled Man

Growing up, Rodney Berget had some trouble fitting in. His home life was troubled; he was surrounded by alcoholism and endured physical abuse. A psychologist who examined him at the age of nine determined that he had an IQ of about 70, a score that would classify him as intellectually disabled. As a 10-year-old, he got the chance to compete in the South Dakota Special Olympics. Yesterday, that same state executed him via lethal injection.

Executing people who have intellectual disabilities has been unconstitutional since 2002, when the Supreme Court ruled in Atkins v. Virginia that the execution of a mentally retarded (or ‘intellectually disabled’) person is cruel and unusual punishment, prohibited by the Eighth Amendment to the US Constitution. A few years after Atkins, the American Bar Association developed, for the first time, guidelines which laid out the critical role of mitigation specialists in death penalty defense. Mitigation specialists are trained to leave no stone unturned as they investigate a defendant, delving deeply into every facet of the defendant’s life, including investigating inter-generational, environmental, health, social and other influences on the defendant’s life, and also assisting in screening for intellectual disabilities and mental illnesses. Mr. Berget was sentenced to death for the murder of a prison guard, Ron ‘RJ’ Johnson, in a foiled escape attempt from a South Dakota prison. Despite his case going to trial in 2012 — a decade after Atkins and at a time when mitigation specialists were not uncommon — Mr. Berget was still sentenced to die, and there is no indication that his lawyer had investigated his background to develop a mitigation presentation that might have saved Mr. Berget’s life.

The deleterious effects of a childhood filled with violence and traumas is demonstrated by its impact on Mr. Berget’s immediate family. Mr. Berget’s brother, Roger, also turned to violence as an adult, spending 13 years on death row in Oklahoma before his eventual execution. Mr. Berget looked up to his brother, shadowing him constantly as an adolescent.

Last month, in Alabama, the state Supreme Court voted to overturn the death sentence of Anthony Lane, a Birmingham man with an IQ of 70. The ruling came down after the United States Supreme Court had ordered the state of Alabama to reconsider sentencing Mr. Lane to death in 2015, citing Atkins. Mr. Berget had the same IQ as Anthony Lane.

In Georgia, SCHR has advocated for bills which would work to ensure that people with intellectual disability are not put to death, by improving the process by which someone is determined to be intellectually disabled. Georgia remains an outlier in how they determine intellectual disability. Of the thirty-one states which still use the death penalty, twenty-two have used the standard of “preponderance of the evidence,” five use “clear and convincing,” three don’t specify a standard, and just one — Georgia — has the standard of “beyond a reasonable doubt” for proving an intellectual disability to the courts. This standard is an extraordinarily difficult legal obstacle, and it is responsible for Georgia having executed intellectually disabled people in the past.

The death penalty will never achieve justice. It is empty vengeance, most often leveled against people who have been the victim of abject poverty, violent childhoods, and pervasive race discrimination themselves. But history will judge especially harshly the executions of intellectually disabled people; vulnerable people whom the constitution is meant to protect, not harm.

Our thoughts are with the family of the victim, Ron Johnson, and the Berget family.

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