States Debate Protections For Mentally Retarded Death Row Inmates


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 safeguards 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. Bell 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 for 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 sentences 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 disability before the case 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 inmate 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 mentally 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 for 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 alots 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.


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