Don’t Kill Rodney Berget
South Dakota is days away from executing a man whose death would be a grim failure of justice and — quite literally — a violation of the Constitution.
The man’s name is Rodney Berget. He is 56 years old and has an intellectual disability. Years ago this was called mental retardation, a condition that has shrunk Berget’s horizons his entire life. It is a life that has been marked by violent crime and years in prison, but also by childhood abuse, neglect, family trauma and — when his fate was being decided at trial — unconscionable abandonment by his defense team.
Berget is also a former Special Olympics athlete. He competed in South Dakota’s state games as a boy from Aberdeen in the early 1970’s. In the view of experts who have closely examined his record and testified in his defense, Berget easily meets the criteria set by the Supreme Court when it outlawed the execution of people with “mental retardation.” The court, in Atkins v. Virginia in 2002, ruled that such killings violate the Eighth Amendment’s prohibition against cruel and unusual punishment.
But the system that could have invoked Berget’s constitutional right has failed him at every turn. His 2011 trial, on charges of killing of a guard in a failed prison escape, was like a march to the gallows. His public-defender lawyer never brought up his intellectual disability during the trial’s argument or penalty phase. Only after the guilty verdict did an independent review discover, in the trial lawyer’s file, evidence of Berget’s low IQ scores, years in special education, earlier state determination of intellectual disability and participation in Special Olympics.
A late-in-the-game hearing after Berget’s sentencing featured incomplete evidence and testimony for the state from a psychiatrist who had no qualifications to make an intellectual-disability diagnosis. The judge, unsurprisingly — and unconstitutionally, in the view of advocates trying to save Berget’s life — reached the wrong conclusion. Berget himself, under dubious circumstances, has abandoned his appeals and is waiting to die.
Now only Gov. Dennis Daugaard can save Rodney Berget — and honor a bedrock constitutional principle. Clemency from the governor would be an act of justice tempered with mercy for a man who has received little of either since he was a boy.
I have never met Berget. But as chairman of Special Olympics, I recognize the pattern of his life. It’s one that anyone familiar with intellectual disability would recognize. Berget’s earliest report card, from kindergarten, is a litany of D’s. “Rodney appears to be shy and quite self-conscious and immature for his age,” a caseworker said in 1971, when Rodney was 9. “According to his mother, Rodney rocks himself to sleep at night.”
He repeated first grade and spent his school years in special education. He was beaten by his father, who struggled with alcoholism. His parents divorced when he was 8. His strongest influence appears to have been his older brother, Roger, who roped him in to various illegal schemes. Rodney was first picked up by police for trying to cash a bad check with his brother, age 9. “You could dare him to do anything,” one childhood friend remembered.
People with intellectual disabilities are often more likely to be coerced into doing things they do not understand, and are less likely to understand the consequences of their actions.
As a teenager, Berget began to self-harm, swallowing glass and cutting deep gashes in his arm. At 17, already a prison inmate, he tried to hang himself with a towel tied to the bars of his cell window. In 2011, while serving time at South Dakota State Penitentiary, Berget was persuaded by a fellow inmate, Eric Robert, to try to escape. They ambushed and then beat to death a prison guard.
There is no disputing the severity of Berget’s actions. The government believes, with powerful justification, that Berget is a dangerous man. But for the government to execute him, ignoring compelling evidence of the disability that left Berget unable to steer his turbulent life, or to understand the punishment that awaits him?
The Constitution, with powerful justification, forbids it.
Any competent defense would have fought mightily to prevent the killing now scheduled for Monday. But Berget’s defense seems to have been inexcusably negligent and incompetent. The deck was stacked against him from the beginning.
I cannot think of a more extreme disconnect than the one between the joyful world of Special Olympics and the tragic life of Rodney Berget. As chairman of an organization dedicated to improving the lives and prospects of people with intellectual disabilities, I can think of nothing more disturbing than the execution of a former Special Olympics athlete.
Why would I stake the reputation of Special Olympics on pressing for leniency for a man serving life in prison after a career of violent crime, including the bludgeoning death of an innocent man, the guard Ronald Johnson?
Because justice and decency demand it. Fifty years ago, people with intellectual disabilities were hidden in institutions and systematically denied a place in society. Their opportunities were denied, their humanity disavowed. Myths and cruel stereotypes prevailed about their danger to society, their uselessness, even though they were far more likely to be the victims of crime and neglect. Countless human lives were wasted, abandoned, lost.
The nurturing childhood Berget never had, the opportunities he never knew, the competent legal defense he never got — all of these have conspired to push him to where he stands today. Now he awaits death by lethal injection on Monday. Advocates tell me that the lawyers who failed to save his life plan to be there, to watch him die.
Governor Daugaard can right this wrong. He can grant clemency. He can make sure there is a proper hearing to make a credible determination of Berget’s intelligence. He can seek justice, by refusing to allow the apparatus he controls to kill Rodney Berget.
