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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
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.
The person may:
not want disability to be recognized (and try to cover it up)
not understand rights (but pretend to understand)
not understand commands
be overwhelmed by police presence
act upset at being detained and/or run away
say what he or she thinks others want to hear
have difficulty describing facts or details of offense
be the first to leave the scene of the crime, and the first to get caught
be
confused about who is responsible for the crime and
"confess" even though innocent
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
A young man in his thirties still remembers his grandfather's birthday, even though his grandfather has been dead for several years. The young man wanted to send his grandfather a birthday card. When his mother told him, "Don't you remember? Grandpa is dead and has gone to heaven", the young man replied, "Well, let's send it to heaven".
When a student with mental retardation learns that 2+3=5, they do not generalize the concept to 3+2=5 or 3+__=5. When testing a person with mental retardation, they will get a puzzled look on their face when they are working on a task they are solving incorrectly- but it is very rare that they self-correct, even though their facial expression indicates that they know that something is wrong.
Teachers work with students with mental retardation, teaching them that they don't get into cars with strangers. This concept is role-played in class and students are able to learn that they are not to get into the car with a stranger. However, when the young adult is walking down the street and someone comes along and introduces himself and offers a ride to the individual, he gets into the car readily. After all, he is "Bob"- not a stranger.
Teachers work with students with mental retardation, teaching them what to do when they are lost. The individual can respond correctly in role plays and can tell the steps he should take. Find an adult or police officer, tell them you are lost, and tell your address and phone number. However, when the individual is lost, he rarely asks for help- because he does not recognize when he is lost. He just wanders around disoriented until someone else recognizes that he needs help.
It is very difficult to teach a person with mental retardation that a dime is preferable to a nickel since the nickel is bigger. Even though the adolescent with mental retardation can be taught to count and use money, they must be specifically taught the price of items. They can be taught to read the price and count the bills and coins in the classroom. However, unless specifically taught, they would pay $100 for a t-shirt if you tell them the price and they have the money. When teaching a person with mental retardation, you can teach the person to read survival signs such as "DO NOT ENTER" or "CAUTION", but you also must teach the individual what to do if the sign says, "DO NOT ENTER" or "CAUTION".
People with mental
retardation are people pleasers and have an external
locus of control (Beirne-Smith, Patton, & Ittenbach,
1997). They are easily led and answer "yes" if
you ask a question in a " You ___ , didn't
you?" or "You are ___, aren't you?" If
asked if they want "cake or peas" they often
reply with whatever choice you place at the end of the
question. When you have difficulty understanding the idea
that the person with mental retardation is trying to
convey, he will give up easily and rarely persist. The
individual will agree with you even if you are wrong.
They will follow the conversation in the direction that
you lead them. 5)Debate over medication : To Medicate or Not to Medicate - Legal Ethics vs. Medical Ethics COMMENT: JUSTICE AND AID FOR THE MENTALLY ILL -
Who's crazy - the people on the inside or the outside?
Russell Weston, the paranoid schizophrenic who killed two U.S. Capitol
Police officers in 1998, is not getting treatment for his mental illness
because if he were treated and recovered enough to stand trial, he might
get the death penalty.
In other words, to stave off the threat of execution, he has to stay
sick. To cure him could kill him.
His lawyers, on the outside, apparently think this is rational. Even
humane. By not treating a treatable disease and relieving pain, they are
conceivably saving a life.
Who's crazy now?
The death penalty has introduced this medical paradox. The law is clear
that states are not allowed to execute the insane. In 1992, the Louisiana
Supreme Court decided that the state could not mandate treatment in order
to make a convict well enough to be executed. The "medicate-to-execute"
scheme would violate the prisoner's constitutional rights to privacy and
protection from cruel and unusual punishment.
So Michael Owen Perry, a paranoid schizophrenic who blasted his relatives
away with a shotgun nearly 20 years ago, remains on death row, chattering
loudly to himself about God, the Mafia and Olivia Newton-John, according
to news reports.
How do we feel about letting people slowly succumb to a disease when
there is treatment available to help them?
This is what happened in the terrible Tuskegee experiment half a century
ago when black Americans were left without effective treatment for
syphilis so researchers could study the natural course of the disease.
The Clinton administration officially apologized for that outrage.
Withholding treatment when effective therapy is available and a patient
could benefit from it is, on the face of it, immoral.
But the death penalty has turned medical ethics upside down.
To be sure, the purpose of medicine is to relieve suffering and help
patients overcome illness and injury. Advances in psychiatric medicine -
better drugs, better therapeutic services - have brought new hope into
the mental health field.
At the same time, physicians are also supposed to follow the dictum: Do
no harm.
Medicating patients so that they can be executed would certainly
constitute "doing harm." In this way, physicians can justify to
themselves not treating a treatable problem. It is a choice between the
lesser of 2 harms.
"The eventual suffering of death is worse than suffering without
treatment," says Michael Perlin, professor of law at New York Law School.
"What is the most suffering? What is less suffering?"
As Perlin points out, physicians inflict suffering on their patients all
the time in order to prevent death. Look at invasive surgeries and
powerful drug treatments: open heart surgery that cracks open ribs and
reroutes blood vessels and toxic chemotherapy that wipes out the immune
system. These "harmful" treatments are prescribed in the pursuit of a
cure - to prevent the greater harm of dying from the disease.
So, how harmful can it be to go without medication for schizophrenia if
non-treatment can prevent the greater harm of dying by execution?
Today about 3,700 people are on death row. Many have some form of mental
illness. But very few are too insane to be executed. "The standard for
being found mentally incompetent is hard to reach," says Richard Dieter,
executive director of the Death Penalty Information Center. "It's rare
that anybody gets spared for this reason."
There's not a lot of sympathy for people who have been convicted of
horrendous crimes, no matter what their state of mind.
But the paradox, where to cure 'em is to kill 'em, does grievous harm to
the medical profession. Physicians and mental health workers who take
care of prisoners can't be "good" doctors - neither good-competent nor
good-moral. "It puts conscientious mental health professionals in a very
difficult position," says Michael Radelet, chairman of the sociology
department at the University of Florida and author of "Executing the
Mentally Ill."
That violation of medical ethics has broader implications. Whatever
people think of the death penalty, the medical paradox on death row
defies common sense - and common decency.
(source: Washington Post)
Russell Weston, shown in a August 1991 photo, could face the death penalty for the murder of 2 Capitol Hill police officers. (Montana Standard/AP Photo) Insanity in the Courtroom
When Getting Well May Be a Death Sentence.
Russell Weston, a paranoid schizophrenic, could take medication to help control his disease. But then the 45-year-old would have a trial and could face execution.
Weston is accused of shooting and killing two police officers in an attack at the U.S. Capitol on July 24, 1998. Federal prosecutors have tried to force him to take anti-psychosis medication so he can be tried. For nearly two years, he has lived in solitary confinement in a North Carolina prison, slipping deeper and deeper into madness.
He has refused to sign a consent to administer the drugs, and his lawyers have been able to stay an order that would forcibly medicate Weston, which could improve his mental condition and thus make him eligible for trial in the Capitol murders.
Without the drugs, he is classified as unfit for trial. It's easy to see why.
In an interview following his arrest, Weston told a court-appointed psychiatrist of a secret time machine locked away in a safe at the Capitol. This "ruby satellite system" was capable of reversing time, even preventing his own death.
"I have been murdered and cannibalized a few times," said Weston. "I only die for maybe three or four seconds, maybe not even that long."
The Weston case raises many questions about defendents' and victims' rights. Does a defendant have the right to choose whether they will go on trial? Should lawyers protect a client's legal options at the expense of his health? And what about the state's interest if the right medication can make a criminal competent to stand trial?
In Weston's case, there are the concerns of the families and colleagues of the slain officers to consider. Aren't they entitled to some sort of closure?
If Weston is indeed brought to trial, he will have an opportunity to put on a defense. A defendant is accountable for their mental state at the time of the criminal action, not who they are when they're sitting in a courtroom. If his lawyers prove that he was not legally responsible for the crime because of his insanity at the time of crime, he could avoid the death penalty or prison altogether.
To Medicate or Not to Medicate
But Weston's case is hardly unique: Mentally ill men and women frequently are caught in the criminal justice system's "Catch 22," facing a choice between mental health and punishment.
In one such case, Dr. Jerry Dennis, a state-appointed psychologist in Arizona, has refused to provide comprehensive treatment to death row inmate, Claude Maturana, in order to save him from execution.
"The code of ethics of the American Medical Association is very clear," said Dennis, "that this would be an unethical practice to restore somebody to competency for the purpose of execution."
Dennis treats Maturana with just enough medication to keep him calm, but not enough to make him well. And other doctors at the state's mental hospital side with him. Hospital administrators had to place an ad in local newspapers in hopes of finding a psychiatrist who would treat Maturana in accordance with a state court order.
The hospital found an outside doctor who said Maturana is, without medication, competent enough to face death, but the debate continues to rage.
Legal Ethics vs. Medical Ethics
Some argue that simply keeping Weston — and those like him — off their medication is a form of cruelty.
"The cost of suffering imposed on Russell Weston is so enormous that there is no way you can justify, even to say we are going to save his life by doing it," said medical ethicist Arthur Caplan. "If... somehow we could burn a portion of Russell Weston every day and cause him to scream, yell and suffer, but we said if we do this we won't take him to trial, we wouldn't put up with it."
But in the end, it will likely be lawyers and judges — not doctors and ethicists — who determine the fate of people like Weston.
"A lawyer in this situation has to keep his attention focused on why he is there," said defense attorney J.W. Carney. "He's not there to improve the physical health of his client, he's not there to improve the mental health of his client. He's just there to defend the client to the best of his ability on that criminal charge."
Carney represented John Salvi, who was convicted of killing two and wounding five others at a Boston-area abortion clinic in 1994. Carney argued unsuccessfully that Salvi was insane. Salvi later killed himself in prison.
"Similarly, the prosecutors in this case really have no interest in the physical health of Russell Weston nor the mental health of Russell Weston," he said. "They just want an opportunity to put him to death."
New York defense attorney Ron Kuby says the best insanity defense a lawyer can provide to a client such as Weston is to let a jury see just how insane a client is — something medication would prevent.
Instead, a doped-up client may appear to the jury as sane, perhaps even remorseless. The government, said Kuby, really just wants Weston sane enough to "tell the difference between a judge and a cabbage" and sit quietly enough to be prosecuted.
"The government doesn't want Russell Weston sane, they want Russell Weston dead," he said. "The issue becomes, is it better to be crazy, or is it better to be dead?"
As a defense lawyer, Kuby said he is under no obligation help the government kill his client.
Soon, a federal judge is expected to rule on whether Weston should be forcibly medicated. But the case still raises questions about whether the justice system addresses the welfare of seriously ill defendants, along with their rights.
"I don't really think the law, the great big edifice — not just the courtroom, not just the criminal process but we as a society — I don't really think we know how to deal with the mentally ill and that's why a case like this disturbs us so much," said retired circuit court judge Vincent Femia.