These words by David Bruck, a lawyer who has represented numerous capital defendants, appeared in the International Herald Tribune on June 23, 1987. Most people not only agree with the sentiment expressed but believe that only the most cunning and culpable of criminals are executed in this country--that the mentally ill and mentally retarded are explicitly excluded. Far too often, however, they are wrong.

As things now stand, mentally disadvantaged defendants often have to rely on a defense referred to as "diminished capacity." This simply means that such defendants may have known right from wrong but did not have full control over their actions, resulting in an inability to refrain from acts that people of average abilities could resist or simply would not commit.

Two basic problems face capital defendants trying to prove diminished capacity in court. The first is the skepticism with which most people view such a defense. All people are assumed to be normal and fully responsible for their actions, so it is the defendants' burden to prove otherwise.

Many people mistakenly believe that they can just look at a defendant and tell if he or she has a significant mental disorder. Even when a competent psychiatrist has diagnosed a mental illness or mental retardation, juries tend to dismiss the diagnosis if the defendant "looks normal."

There are several reasons for this. First, there is a general lack of confidence in psychiatric testimony. Second, there is a pervasive feeling that psychiatrists testifying for the defense will give whatever diagnosis is desired--and that psychiatrists testifying for the state are somehow more credible and less likely to be "bought." Third, it is generally assumed that a person whose life is on the line will feign a mental disorder and be able to fool even the best-trained psychiatrist. And finally, even if the defendant is proven to be mentally disturbed, it is often felt that she or he is somehow "getting away" with the crime. These feelings present formidable obstacles for any mentally disadvantaged defendant to overcome.

The second basic difficulty with proving diminished capacity has to do with the nature of capital crimes themselves. Often these are terrible crimes of a disturbing and heinous nature, and the trials can become extremely emotionally charged, leading many jurists to ignore even clear cases of a mental disorder.

The U.S. Supreme Court has mandated that mental disorders are mitigating factors, but this has not prevented mentally disadvantaged people from ending up on death row. It is estimated that 10 percent of all current death-row inmates are mentally ill and another 10 percent are mentally retarded. That translates to more than 600 mentally disadvantaged defendants currently under sentence of death in this country today. Some have already been executed.

Varnell Weeks was executed in Alabama for murder. Weeks had been diagnosed as being severely mentally ill and suffering from a "longstanding paranoid schizophrenia." Psychiatrists testifying for both the defense and prosecution agreed that he suffered from pervasive and bizarre religious delusions.

Weeks believed that he was God, that his execution was part of a millennial religious scheme to destroy humankind, and that he would not die but, rather, would be transformed into a giant tortoise and reign over the universe.

An Alabama judge acknowledged that Weeks believed he was God in various manifestations and that he was a paranoid schizophrenic who suffered delusions. The judge's ruling went on to say that Weeks was "insane" according to "the dictionary generic definition of insanity" and what "the average person on the street would regard to be insane." However, the judge ruled that the electrocution could proceed because Weeks' ability to answer a few limited questions about his execution proved that he was legally "competent."

Varnell Weeks - Alabama.

Psychiatrists for both the state and the defence diagnosed Varnell Weeks as suffering from paranoid schizophrenia, with symptoms including hallucinations and delusions. No evidence of his mental condition was introduced at the trial.

Once he had been convicted, he waived the jury sentencing, and asked the (elected) judge to sentence him to death. Prison records revealed that he would on occasion stand in his cell naked and smeared with feces, making incomprehensible sounds.

At a hearing to determine his competency for execution, Varnell Weeks appeared with a domino tied to a string on his shaved head. In response to the judge's questions, he responded with a rambling discourse on serpents, "cybernetics", albinos, Egyptians, the Bible and reproduction.

He believed he was God in various forms, that his execution was part of a millennial religious scheme to destroy mankind, and that he would not die but that he would be transformed into a tortoise and reign over the universe.

The judge acknowledged Weeks' mental illness and delusions, and stated that he was "insane" according to "the dictionary generic definition of insanity" and what "the average person on the street would regard as insane". However, the judge ruled that the electrocution could proceed.