States Debate Protections For Mentally Retarded Death Row Inmates
By Tiffany Danitz, Staff Writer ( stateline.org)

The Federal government outlawed executing prisoners who are mentally retarded in 1988 and one-by-one states are adopting a similar policy. During this legislative season, South Dakota became the latest to ban such executions, bringing the number of states that prohibit the controversial punishment to 14.

Since 1976, when the death penalty was reinstated, 34* mentally retarded prisoners have been executed in the United States. Still the debate over whether or not to adopt a ban is difficult for lawmakers, many of whom believe the justice process already has saf eguards to protect the mentally retarded.

Such a dispute erupted in the Florida legislature during this session when Rep. Randy J. Ball, Chair of the House Crime and Punishment Committee, promised to kill a bill that would have prohibited such executions, a measure that the Senate committee had unanimously supported. Ball made headlines in the St. Petersburg Times.

Ball in a letter to the editor wrote, "The question is this; is it right to withdraw from juries the option of the death penalty for a person who, although intellectually limited, rationally understands the consequences and wrongfulness of the horrific crime he has committed?" Ball added that Florida has adequate protections for "those whose mental conditions release them from responsibility fo r their actions." They could plead insanity, he said.

In 1986, when Georgia learned that it had executed a mentally retarded prisoner, Jerome Bowden, the legislature swiftly passed a law forbidding the execution of the learning disabled -- ordering sentenc es of life in prison without parole. Bowden had an IQ of 59 and couldn't read. His conviction was based solely on a signed statement. He said he signed it because a police officer told him he would help him, according to the Death Penalty Information Center in Washington (DPIC) a clearing house and advocacy group.

Three years after Georgia prohibited such executions, the American Bar Association (ABA) threw its support behind state bans. Since then Arkansas, Colorado, Indiana, Kansas, Kentucky, Maryland, Nebraska, New Mexico, New York, South Dakota, Tennessee and Washington have also banned the practice.

DPIC's Richard Dieter said most of the new laws require that there be evidence of a sisability before the cases goes to court. "It (mental retardation) is identified early on in people's education.It's not something you can fake, so that class of offenders can be separated out."

Advocates, such as Dieter, who oppose executions of the mentally retarded, said they have felt new support for their cause since January when Illinois adopted a moratorium on all executions.

Sometimes when a state discovers that a death row in mate is mentally retarded it forces the state to reconsider its position. This happened in Illinois, according to Attorney and state-ban advocate James Ellis. Ellis was able to secure a 72-hour stay for prisoner Anthony Porter because the inmate was menta lly retarded. Porter confessed to a double murder and spent 17-years behind bars. Journalism students from Northwestern University in Chicago had investigated Porter's case for a class; during the stay they were able to prove his innocence to authorities. Ellis said the problem is, "we keep finding people on Death Row with mental retardation when it is too late and they are about to be executed."

Because of Porter and because the Illinois courts had reversed the convictions of 12 other death row inmates (not all due to mental retardation), pro-death penalty Republican Governor George Ryan called fo r a freeze on executions.

Ellis, who works on this issue with the ABA and the Association of Retarded Citizens said, "Anthony Porter was innocent. The reason he was alive to be proven innocent was because he was mentally retarded. A lot of these cases involve false confessions because mentally retarded people want to please authorities and do what is expected of them. They want to make people happy."

During the 2000 session, bills that would ban the execution of mentally retarded prisoners were considered in Arizona, Florida, Illinois, Missouri, North Carolina, and Mississippi.

Ellis said bans were passing at a rate of one state a year, but he sees the debate picking up speed. He thinks Illinois and Arizona will prohibit execution of the mentally retarded in the next session. When Ellis meets with lawmakers he explains that many people with low IQ's have no physical characteristics that indicate they are disabled. In fact, they learn early on to mask their problem. "Their understanding of lots of basic things, including society's rules, the nature of life and death, is limited. Many guys on death row are told they are about to be executed and they ask if they can still watch Hill Street Blues next Tuesday," said Ellis.

The fear among some lawmakers is that mental retardation will become a broad exception, invoked often by defense attorneys. They want to avoid adding courtroom duels between defense and prosecution expert witnesses on mental retardation to the trial process. But Ellis and Deiter argue that the exception is narrow and would affect few people.

Still, opponents say the bans are unnecessary. Sandy Howard is Chief of the Criminal Appeals Section of the Oklahoma Attorney Generals Office and she believes the system has adequate protections. The insanity defense covers mental retardation, according to Howard. She argued that the mentally retarded are protected by the need to be competent for trial and the burden is on the prosecutor to establish criminal intent.

"IQ is not the determining factor, it is what you do with the knowledge you have and if you can create the intent to kill then IQ is not a factor," Howard said. In March Oklahoma courts upheld the death penalty conviction of Richard Eugene Hammon who was characterized as "mildly retarded" when he scored 67 on a 1993 IQ test.

*= In fact Since 1976, the real number of mentally retarded who have been executed is 35 -the statistics often forget Emile-Pierre Duhamel's case.

Wednesday, June 21, 2000 copyright: Stateline.org and Tiffany Danitz

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FLORIDA


Florida Must Abolish the Death Penalty For People Who Are Mentally
Retarded

By Chris Schuh

Since 1976, when the Supreme Court permitted states to reinstate the death penalty, 34 mentally retarded inmates have been executed in the United States. The presence of retardation raises so many possibilities of miscommunication, misinformation and inadequate defense that imposition of the death penalty is unacceptable. That's why 12 states that allow capital punishment have passed laws prohibiting the death penalty for people with mental retardation. Florida should, too.

But during the legislative session that just ended, Florida failed to pass a bill that would prohibit the execution of individuals classified as mentally retarded with an IQ of less than 70, which equals the functioning equivalency of about a 9-12 year-old.

Even Florida's own Attorney General Bob Butterworth, who has been one of Gov. Jeb Bush's strongest advocates for speedier executions, supported the bill sparing persons with  mental retardation from capital punishment. "A civilized society is not going to execute a person who's retarded," he has said.

Under the current law in Florida, the determination of competence to stand trial is proved on a case-by-case basis. But this practice has proved insufficient to protect the rights of individuals with mental retardation.

An estimated 10 to 15 % of Florida's 370 death row inmates fit the description of mental retardation, meaning that Florida could be the next in line to execute our country's 35th inmate who is mentally retarded. According to the Death Penalty Information Center, Florida has already executed 3 inmates who could be classified as mentally retarded.

Individuals with mental retardation who become involved in the criminal justice system are more likely to face injustice if the system does not consider their disabilities and capabilities. Most attorneys, judges, law enforcement officers and juries lack the knowledge and skills necessary to ensure that people with mental retardation obtain equal justice. Appropriate investigations and expert testimony are costly, but most people with mental retardation have limited resources.  Other
problems encountered by persons who are mentally retarded include:

* Failing to have their disability recognized by authorities. It is notuncommon for individuals to attempt to hide their mental retardation.

* Giving incriminating but inaccurate "confessions." People who are mentally retarded tend to be deferential and anxious to please  persons in authority, and they may be confused or misled by investigative techniques. (In 1986, Jerome Bowden was executed in Georgia on the basis of a confession he could not even read; he signed the statement because a police officer
told Bowden he would help him.  2 years later, in 1988, Georgia became the 2nd capital-punishment state to ban execution of people who are retarded.)

* Waiving rights unknowingly or being unable to assist their lawyer in their own defense. People who are mentally disabled have a higher likelihood of wrongful conviction because they cannot understand the criminal justice proceedings. They may not remember or be able to relate the information their lawyers need in order to defend them.

* Having their testimony considered not credible. Fear, prejudice and lack of understanding of people who are mentally retarded are magnified when they become involved in a crime. People with mental retardation are often unable to distinguish between incidents that are their fault and situations beyond their control, and they may be incapable of testifying clearly and coherently.  Small wonder then that jurors and investigating officers often give little weight to their version of events.

Once they enter the criminal justice system, there are few organized resources for information, training, technical assistance and referral.
Once incarcerated, people with mental retardation are particularly vulnerable to abuse and exploitation.

People with mental retardation who commit crimes should not be exempt from appropriate punishment. Sentencing must be determined on a case-by-case basis. But the death penalty is not appropriate punishment for such people. Florida should be the next state to do the right thing and ban the execution of mentally retarded persons.

(source:  Chris Schuh is executive director of The Association
for Retarded Citizens of Florida; the Florida Forum -June 30, 2000) **************

SIMPLY MAD ABOUT DEATH ROW

Mentally ill prisoners condemned to die for their crimes are pricking America's conscience, Roy Eccleston writes.

Russell "Crusty Rusty" Weston lives up to his nickname. His hair is unkempt and he has a wild beard. He lies on his bed most of the day picking at the skin on his head, arms and chest, saying nothing. There is no one to talk to anyway. Weston, 44, is kept behind a door labelled "isolation'' in a secure psychiatric prison in Washington, DC.

A camera on the ceiling watches constantly. But the camera and Weston see different worlds. Weston believes he is commander of all the armies on earth and that the medical staff are murderers and rapists whom he must punish. He would be able to, he thinks, if only he could get his hands on the ruby satellite system deep inside the US Senate.
Then he could turn back time and solve all his problems.

On July 24, 1998, Weston tried to do that. At 3.40pm he strode up to the east entrance of the US Capitol,walked up to police officer Jacob Chestnut, who was working the metal detector, and shot him in the head with a .38 Smith and Wesson revolver. Weston then ran into a hallway, where he was confronted by a plain-clothes special agent of the Capitol police, John Gibson. Weston shot him in the chest but, before Gibson died, he fired back. Weston, knocked to the ground, was dived on by other police. Now Weston facestrial for the murder of the two men. Maybe.

Weston is a paranoid schizophrenic, whose illness in ordinary circumstances would have a good chance of responding to anti-psychotic medication. But Weston's lawyers won't let the drugs near him. If he becomes fit enough to face trial, they worry, he may face the full force of the law.

That could be the death penalty.

So, to protect him from that, Weston's lawyers are keeping him indefinitely, maybe permanently, mad. Hell on earth,they have decided, is better than whatever waits in the hereafter. Weston's case presents extraordinary legal and medical ethical problems. But it is more than that: it is an example of how the US system of capital punishment distorts rather than reinforces the concept of justice.

"Don't blame his lawyers," says prominent New York trial lawyer Gerald Lefcourt. "The blame should be on the Government. They're the ones trying to kill him. If they weren't trying to end a life of somebody they know is suffering from mental disease and defect, this wouldn't be going on." Says psychiatrist Eliot Sorel of Washington's Georgetown University: "It is the defence lawyers who are obstructing justice in two ways. He cannot be adjudicated for what he did, and he is severely ill and they are preventing treatment."

Weston's case comes at an important time in the development of legal and public attitudes to the death penalty.

Richard Dieter, director of the Death Penalty Information Center, says execution "is supposed to be for the worst of the worst, the most responsible". But, increasingly, Americans are hearing that the system is trying to kill those whose level of responsibility is at best uncertain: the mentally ill and the mentally retarded.

In recent months, the US media has been showcasing examples of this problem, and now the US Supreme Court has agreed to consider the constitutionality of executing those with IQs below 70: the mentally retarded.

The Weston case is an example of the problems the death penalty causes for the mentally defective. Without the prospect of execution, Weston's lawyers would have him in court immediately because the outcome whether he is found guilty or not guilty would be the same -- lifetime incarceration and treatment. Experts don't doubt that Weston was insane when he killed the police officers. So won't a jury recognise that? "How do you know what a jury is going to believe?" says Lefcourt. "Would you have your life ride in the balance of the ability of public defenders to persuade a jury? I don't think so."

Following the shooting of Ronald Reagan by John Hinckley Jr 20 years ago, insanity pleas are tougher. The defence has to prove Weston was insane. "There was such a hue and cry that the president of the United States could be shot and this guy could be found insane -- and we couldn't get to punish him. We could only put him in a mental jail," says Lefcourt.

Weston had shown symptoms of serious mental illness since his teenage years. Always slow, never socially comfortable, he learned early in life to hunt and handle guns, and after high school in Illinois moved to the sparsely populated state of Montana to be near his sister. Weston rented a cabin, court documents show, and earned the nickname Crusty Rusty for his habit of seldom changing his clothes. He rarely held a job and began forming delusions, such as having finished as dux of his school. By the mid 1980s doctors believed he was suffering from paranoia and psychosis, severe brain disorders that produce delusional thinking and beliefs. By the '90s, Weston's disease became worse. He began to think he had possession of a secret that he carried in a satchel and believed president Bill Clinton was sending troops to kill him. He believed if he rocked on his porch that would protect him by making him a moving target. By 1996 the Secret Service had taken an interest in Weston and interviewed him as a potential threat to the president. The same year, Weston bought an expensive suit and drove to CIA headquarters in Langley, Virginia, where he wanted to be interviewed for a job.

Weston didn't act particularly strange, but his conversation must have taken the CIA by surprise. "OK, it started out first off in the Eisenhower administration," he said at one point. "I am a clone. Do you understand what I mean by clone?" He also explained the concept of scalar magnetic resonance. "What I mean is, that when people are born before they're born, they are bombarded with a microwave." Weston added that he was in a movie John F. Kennedy was making. "Say, how do you get a job at the CIA anyway?" he later asked. "I've worked as an operative for the last 33 years." By 1998 he was in serious decline and refusing to take medication. At one point he returned to his parents'home because he worried that landmines had been planted around his cabin. But he couldn't leave the delusions behind and he came to worry that the neighbours were cannibals who were cooking a young girl. Weston also became obsessed with the cats around his parents' home and started shooting at them with a .22 rifle. He was given 10 days to find somewhere else to live. It was then that he took the .38 revolver and drove to Washington. Lying in hospital afterwards, his gunshot wounds treated, Weston showed no sign of regret.

When interviewed by doctors in January last year, he had not lost his fixation on cannibalism, a flesh-rotting illness he calls blackheva or the ruby satellite system. When the prospect of the death penalty came up, he was not overly bothered, since he believed in death he would win control of the satellite system and "only die for three or four seconds, and end up in the great safe of the US Senate where the ruby satellite system is controlled". As for the police he killed, maybe they were permanently dead, perhaps not.

David Daniel was charged by the court to decide whether there was any reason not to forcibly medicate Weston. He met him three times. Weston closed his eyes and refused to speak. "The impression created by the three meetings was consistent with past experience with guarded, regressed, autistic, negativistic behaviour among the more severely ill paranoid schizophrenic patients," Daniel concluded. So Weston is left to rot while his lawyers and the court argue about what's in his and society's best interests.

The latest decision by Judge Emmet Sullivan in the District Court is to disregard the defence argument and order Weston to be forcibly medicated so that he can be competent, a legal term, to brief lawyers to allow a trial to start. Drugs would also lessen the risk Weston posed to staff, the judge argues. "Seclusion is simply the warehousing of Weston in a psychotic state," says Sullivan. "It is not treatment; at best it contains dangerousness. In fact, seclusion could be the cause of further deterioration."
Weston's lawyers are appealing -- although Weston isn't talking to them either -- and a decision is months away. But if they lose and the drugs work (there is a 60 per cent chance they will) a trial will start.

Should he be convicted and sentenced by the same jury to death, will he still have to take the drugs? This is where it becomes even more interesting. Not only must the accused be competent to face trial, the condemnedprisoner must be competent to be executed.

In other words, Weston would need to know that he was being punished, for what, and that the consequence was death. In such circumstances, his lawyers would again seek to block medication so that he could not possibly understand these things. The judge has suggested that, should execution be ordered, he may be permitted to refuse medication.

Then the US Government, which is the prosecutor, could insist he be drugged to some semblance of sanity to be executed.

Far-fetched? No. That is almost exactly the scenario playing out in Arizona, where mentally ill prisoner Claude Maturana is on death row. The Arizona Attorney-General wants Maturana medicated so he is competent to be executed; no doctor is willing to do so, though, because it is against an ethics ruling of the American Medical Association.

Weston is suffering, thinks psychiatrist Sorel, who views the killer's actions in seeking the machine to turn backtime as a symbolic way of seeking treatment so his torment could be stopped. For now, though, the torment continues and may be his only way to stay alive. The US justice system may leave a man with a doubtful hold on reality the choice of whether to endure psychosis and live or be medicated and die.

The Australian Newspaper, Monday April 16, 2001,
by Roy Eccleston (Washington Correspondent)