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-Human Rights Watch- BEYOND REASON: The Death Penalty and Offenders with Mental Retardation.


SEVERAL STATEMENTS ABOUT MENTAL RETARDATION

1) AAMR: American Association for Mentally Retarded

The AAMR's Fact Sheet on The Death Penalty and People with Mental retardation states:

The AAMR also states that:

People with mental retardation should not be eligible for the death penalty. This is not to suggest that people with mental retardation should not be punished when they break the law, nor does it suggest that people with mental retardation are not responsible for their actions.

It suggests that people with mental retardation cannot be held culpable for crimes to the extent that the death penalty would be considered an appropriate punishment.

2) ARC: Association for Retarded Citizens

There are several possibilities for miscommunication when a person with mental retardation comes in contact with a person in authority. The Arc has put together a list of some common responses that may affect a person with mental retardation's ability to protect their rights during police contact.

3) ISSUES OF MENTAL RETARDATION


One of George W. Bush's 1st acts as governor, in January 1995, was to reject a request for clemency for Mario Marquez, who suffered from severe brain damage, and who had an IQ of 60 and the skills of a 7-year- old. Marquez was executed on the evening of Bush's inauguration. "I want to be God's gardener and take care of the animals," Marquez told
his lawyer, Robert McGlasson, a few hours before being strapped onto the gurney.

McGlasson recalled in an interview last week, "It was like talking to a 5-year-old." Larry Fitzgerald, a spokesman for the Texas Department of Corrections, said the department does not know how many of the 459 death-row inmates are mentally retarded. The prison has IQ test scores only for inmates who might have been tested during an earlier incarceration.

1 death-row inmate is Doil Lane, whose IQ has been tested at between 62 and 70, and who has the emotional and intellectual development of an 8-year-old child, said his lawyer, William Allison. Lane was convicted of the rape and murder of an 8-year-old girl, with the
case against him consisting largely of his own confession, Allison said.

Experts on mental retardation say that the mentally retarded often confess to things they have not done, in part because they want to please. Allison said Lane's confession was false. "Given time, you could get him to confess to anything," he added.

Allison noted that his client was so childlike that after he confessed, he climbed into the lap of a Texas Ranger to whom he had confessed. At his trial, Allison requested a crayon so he could color pictures. The judge would not let him have one.

Lane, now 39, still longs for crayons. "I like to clore (color) in my clorel (coloring) book but you all tuck (took) away my clores when you can not hurt no one with a box 24 clores, just in my book," he wrote recently.

It took no prodding from the police for Cruz to confess to his crime, and Cruz's lawyer does not dispute his guilt. But an older man, Jerry Kemplin, was with Cruz for the rape and murder. Kemplin, like Cruz, was initially indicted for capital murder, but he did not confess to anything, instead accepting a plea bargain in exchange for testimony against Cruz.
Kemplin was sentenced to 65 years, with the possibility of parole after serving a quarter of his term.

"The smart guy who doesn't confess, who knows better than to give evidence against himself, gets the deal," said Pokorak, Cruz's lawyer. "But the guy who is retarded, who doesn't understand all the words of his Miranda warning, he gets death."

Experts say that a person is mentally retarded who has a significantly subaverage intelligence, which is generally defined as an IQ below 70, and who consequently
has serious difficulties coping with routine aspects of daily life, in school and at work.
The condition must have existed since childhood.

Mental retardation is distinct from mental illness, although the 2 may exist in the same individual.

In the highly publicized case of Ricky Ray Rector, the Arkansas inmate executed while Bill Clinton was governor but was running for president, Rector's lawyers argued that he was so mentally impaired that he did not even know he was about to be executed. But Rector's condition was not considered mental retardation, because it did not reach back to his childhood. It was caused when he shot away part of his brain at the time of his arrest.

The test for whether a defendant is mentally retarded is not the same test used to determine whether a defendant is insane and therefore not guilty by reason of insanity. That requires a defendant to show that he did not know right from wrong. A person who is able to make this ethical judgment may still be classified as mentally retarded, depending on IQ.

Pokorak is not arguing that Cruz should not have been convicted by reason of insanity,
but that he should not be executed, because he is mentally retarded.

One reason for the lack of precise data about the number of mentally retarded death-row inmates is that the mentally retarded themselves struggle to hide their disability, even though in many cases it is the one thing that might save them from execution.

"They would rather pass as normal than stand up and say `I have a disability,'"said Timothy Derning, a psychologist in Lafayette, Calif., who has testified as an expert
witness for defendants in many capital murder trials. "They have been called `stupid' and `retards' their whole life, so who wants to say they are mentally retarded?"

Interviewed in a holding cell on death row last week, Cruz had a pained expression as he answered questions about his lawyer's emphasis on his mental retardation in the effort to spare him from execution. "It hurts to be in that category, that I'm retarded or stupid," Cruz said. But he also recalled his frustration with school, which he said had led to his
dropping out at age 16. "I was slow in reading, slow in learning," he said. "Maybe I was a loser. The teacher would say, `Read this chapter.' I couldn't read." He added proudly, "Now I can write a letter, a half a page." Cruz did not appear to know what it meant to be mentally retarded. "I'm not retarded," he said. "I'm not the kind of person who is going to go out and hurt people for the fun of it." He attributed his crime to his being drunk and on LSD. But he also said, "I'm not going to use this as an excuse for what happened." "I know I was wrong," he said. "I feel real bad about it. There's nothing I can do to change it, bring that person back. I want to make things right." His eyes filling with tears, he said that half of him had died that night along with the woman he killed. "Keep me locked up," he added. "But don't kill me. I know I could help people."Toward the end of the interview, Cruz put his head in his hands and wept.

Talking in her office in San Antonio, Reed, the district attorney, raised doubts about Cruz's mental retardation. Noting the 2 different IQ scores, of 64 and 76, she said, "I'm not going to say that he is or he is not." She said the jury had heard the evidence about his mental retardation and had reached its verdict, and that she supported the jury's judgment.

Pokorak said that the jury had not been properly instructed to consider evidence of mental retardation, as required by Supreme Court rulings. The 5th U.S. Circuit Court of Appeals ruled recently that while the instruction had not been given, it was not a fatal constitutional error. Cruz filed an appeal on Friday with the Supreme Court.

On the general issue of whether the mentally retarded should be executed, Reed said, "I'm not willing to make a broad statement for or against it."

Most people charged with capital murder are poor, and so are represented by appointed lawyers. Many of these lawyers are inexperienced, and even incompetent, and they often fail during the mitigation phase of the trial to present the evidence of mental retardation that could persuade the jury to spare their client's life.

In Arizona, Ramon Martinez-Villareal is on death row after being convicted of murdering two people. He has an IQ of 50 and also suffers from brain damage, schizophrenia and dementia, according to evidence presented by his lawyers in various appeals.

During the trial, Martinez-Villareal's lawyer did not mention his client's mental retardation. Martinez-Villareal, meanwhile, was not able to tell the difference between the spectators and the jury, his trial lawyer testified at a later hearing. Since the evidence of Martinez-Villareal's mental retardation, brought out by Martinez-Villareal's postconviction attorneys, has emerged, the trial judge and the prosecutor have said that Villareal should not be executed. Nevertheless, Martinez-Villareal remains on death row.

In a landmark case involving a Texas death-row inmate,
Johnny Paul Penry, the Supreme Court ruled in 1998 that executing someone who was mentally retarded was not "cruel and unusual punishment" in violation of the Eighth Amendment.The court, however, reversed the conviction of Penry for rape and murder because the jury had not been instructed during the mitigation phase of the trial that it could take into account his mental condition in
deciding whether to give him the death penalty.

Penry, who suffered brain damage at birth, and has an IQ of about 60 and the mental ability of a 7-year-old, is still on death row. His lawyers are preparing to return to Supreme Court. Now they may win the argument that executing the mentally retarded is unconstitutional, death penalty lawyers and constitutional scholars say.

Writing for the majority in Penry in 1989, Justice Sandra Day O'Connor said that a "national consensus" had not developed against executing the mentally retarded. At the time, only Georgia and Maryland prohibited doing so.

Since then 13 states have enacted laws that prohibit these executions --
Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, Nebraska, New Mexico, New York
*, South Dakota, Tennessee, and Washington and the Federal government. 5 other states came close to passing laws during their most recent legislative sessions -- Illinois, Missouri, Arizona, Florida and Texas.

The Supreme Court has not said how many states would constitute a "national consensus."

From the perspective of the rights of the mentally retarded, one of the strongest laws is Nebraska's, said Jerry Soucie, a lawyer with the Nebraska Commission on Public Advocacy, a state agency that represents indigents in capital cases.

The law, which was pushed by advocates for the mentally retarded and the Roman Catholic Church, says that a person with an IQ below 70 is presumed to be mentally retarded, and requires a judge to vacate a death sentence imposed before the law was passed, if he finds by a "preponderance of the evidence" that the person was mentally retarded.

After the law was passed, 2 of the 10 men then on death row had their sentences commuted to life in prison. One had an IQ of 68, the other 65.

Illinois does not have a law prohibiting execution of the mentally retarded, but Anthony Porter's mental deficiencies saved his life. Porter, who was sentenced to die for the murder of 2 people, and who has an IQ of 51, was 48 hours away from execution when the state Supreme Court granted him a reprieve so that his mental retardation could be investigated.
The reprieve gave investigators time to uncover evidence of Porter's innocence, and last year he was exonerated and released from prison.

*: In New York, under George Pataki's tenure, it has become a law.

Copyright: Associated Press -August 2000-




4) Differences in Judgment and Reasoning of Persons with Mental Retardation