Executing the Mentally Retarded Even as Laws Begin to Shift

Executing the Mentally Retarded Even as Laws Begin to Shift NEW YORK TIMES

August 7, 2000

Executing the Mentally Retarded Even as Laws Begin to Shift

By RAYMOND BONNER and SARA RIMER

LIVINGSTON, Tex., Aug. 2 -- Oliver Cruz can barely read and write. He has an I.Q. of either 64 or 76, depending on the test. He flunked the seventh grade three times. He was rejected by the Army after failing the entry exam three times, and unable to decipher a job application, he did the menial work that came his way, cutting grass, cleaning houses and taking tickets for a traveling carnival.

Now, at 33, he has spent 12 years on death row in Livingston for the rape and murder of a 24-year-old woman, Kelly Donovan, who was stationed at the Air Force base in Mr. Cruz's hometown, San Antonio. Mr. Cruz, who in an interview this week took full responsibility for his crime and expressed anguished remorse, is scheduled to die by lethal injection on Wednesday at 6 p.m.

A defense psychologist testified at trial that tests, as well as a review of school records, showed Mr. Cruz to be mentally retarded. The state did not dispute this. Indeed, the prosecutor argued that the fact that Mr. Cruz "may not be very smart" made him "more dangerous," and so was a reason to sentence him to death.

Mr. Cruz awaits execution at a time when there is growing opposition across the country to the execution of the mentally retarded. Federal law, approved by President Ronald Reagan, bars the execution of the mentally retarded convicted in federal courts. Of the 38 states that permit capital punishment, 13 have laws that prohibit the execution of someone who is mentally retarded; in New York that legislation was signed into law by Gov. George E. Pataki.

In Florida, Gov. Jeb Bush, who like his brother George is a strong supporter of the death penalty, told reporters in April that "people with clear mental retardation should not be executed," and a spokesman said last week that Jeb Bush still held that position. The chairman of the state's Republican Party has recently pledged to support legislation that would ban the execution of the mentally retarded in Florida.

Here in Texas, Gov. George W. Bush has opposed laws that would prohibit the execution of the mentally retarded. [It is a position he still holds, a spokeswoman, Linda Edwards, said on Friday. "Governor Bush believes that the jury should consider all the evidence regarding mental impairment and decide whether a death sentence is appropriate," Ms. Edwards said.] Legislation barring the execution of a defendant whose I.Q. is below 65 passed the Republican-dominated Texas Senate last year but failed in the House. The bill's sponsor, Senator Rodney Ellis, Democrat of Houston, said he was optimistic that the bill would pass next year. He said he would try to raise the I.Q. limit to 70, which is what it is in several other states.

"The national and international attention to the death penalty in Texas has created some momentum," Mr. Ellis said.

Mr. Cruz's lawyer, Jeffrey Pokorak, has asked Governor Bush and the Texas State Board of Pardons and Paroles for a stay of execution, and he says he hopes he can postpone a lethal injection at least until next spring, when the legislation that might save his life will be voted on. He wants a full evidentiary hearing on Mr. Cruz's mental condition. Mr. Pokorak said the defense psychologist's review of Mr. Cruz's school records showed that they had classified him as "educable mentally retarded."

The Bexar County district attorney, Susan D. Reed, whose office prosecuted Mr. Cruz, said in an interview this week that she opposed Mr. Cruz's request for clemency, primarily because of what she called the heinous nature of his crime.

"Here's a woman abducted off the street, kidnapped, raped, stabbed 20 times," Ms. Reed said. She added that Mr. Cruz had a history of violence and had once fired a shotgun at a man. The man, Arthur Jones, who never spoke to the police about the incident, characterized it in testimony at Mr. Cruz's murder trial as a minor matter. "It was done and gone with, you know," he said.

Ms. Reed also said that the evidence about Mr. Cruz's mental retardation was "conflicting," referring to the two I.Q. scores.

Experts say that a person is mentally retarded who has a significantly subaverage intelligence, which is generally defined as an I.Q. 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 two may exist in the same person.

While a majority of Americans support the death penalty, state polls show that a majority of those supporters make an exception for the mentally retarded, even in the fiercely pro-death penalty state of Texas.

The American Bar Association does not have a position on the death penalty in general but is opposed to executing the mentally retarded, said Elisabeth Semel, director of the organization Death Penalty Representation Project.

Those who oppose the execution of the mentally retarded do not argue that they should not be held accountable for their crimes, or severely punished. What they contend is that the mentally retarded should not be considered so morally culpable that they deserve the ultimate punishment, which is supposed to be reserved for the most culpable criminals who commit the most heinous crimes.

It is not known how many of the 3,600 death row inmates in the United States are mentally retarded, but experts say it is about 10 percent, said James Ellis, a leading expert on mental retardation and the death penalty, and a professor at the University of New Mexico law school.

In the United States, 34 people who were known to be mentally retarded have been executed since the Supreme Court reinstated the death penalty in 1976, according to the Death Penalty Information Center, an organization that is opposed to the death penalty.

One of George W. Bush's first acts as governor of Texas, in January 1995, was to reject a request for clemency for Mario Marquez, who suffered from severe brain damage and had an I.Q. of 60 and the skills of a 7-year-old. Mr. Marquez was executed on the evening of Mr. Bush's inauguration for the murder of his niece.

"I want to be God's gardener and take care of the animals," Mr. Marquez told his lawyer, Robert McGlasson, a few hours before being strapped on to the gurney.

Mr. McGlasson recalled in an interview this week, "It was like talking to a 5-year-old."

Texas does not know how many of the 459 inmates on death row are mentally retarded, said Larry Fitzgerald, a spokesman for the Texas Department of Corrections. The prison has I.Q. test scores only for those inmates who might have been tested during an earlier incarceration, Mr. Fitzgerald said.

One death row inmate is Doil Lane, whose I.Q. has been tested between 62 and 70 and whose emotional and intellectual development is that of an 8-year-old, his lawyer, William Allison, said.

Mr. 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, Mr. 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. Mr. Allison said Mr. Lane's confession was false. "Given time," he added, "you could get him to confess to anything." Mr. 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, Mr. Lane requested a crayon so he could color pictures. The judge would not let him have one.

Mr. 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 Mr. Cruz to confess to his crime, and Mr. Cruz's lawyer does not dispute his guilt. But an older man, Jerry Kemplin, was with Mr. Cruz during the rape and murder. Mr. Kemplin, like Mr. Cruz, was initially indicted on a charge of capital murder, but he did not confess to anything, instead accepting a plea bargain in exchange for testimony against Mr. Cruz. Mr. 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 Mr. Pokorak, Mr. Cruz's lawyer. "But the guy who is retarded, who doesn't understand all the words of his Miranda warning, he gets death."

In the highly publicized case of Ricky Ray Rector, the Arkansas inmate executed while Bill Clinton was governor but running for president, Mr. Rector's lawyers argued that he was so mentally impaired that he did not even know he was about to be executed. But Mr. 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 deemed mentally retarded, depending on I.Q.

Mr. Pokorak is not arguing that Mr. 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 inmates on death row 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 this week, Mr. Cruz's expression was pained as he answered questions about his lawyer's efforts to emphasize his mental retardation to spare him from execution.

"It hurts to be in that category, that I'm retarded or stupid," Mr. 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 volunteered that he had made progress on death row. "Now, I can write a letter," he said, "a half a page."

Mr. 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, Mr. Cruz put his head in his hands and wept.

Talking in her office in San Antonio, Ms. Reed, the district attorney, raised doubts about Mr. Cruz's mental retardation but 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. Mr. Pokorak said that the jury had not been properly instructed to consider evidence of mental retardation, as required by Supreme Court rulings. The United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled recently that while the instruction had not been given, it was not a fatal constitutional error. [Mr. Cruz filed an appeal on Friday with the Supreme Court.]

On the general issue of whether the mentally retarded should be executed, Ms. 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, even incompetent, and 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 I.Q. of 50 and also suffers from brain damage, schizophrenia and dementia, according to evidence presented by his lawyers in various appeals. During the trial, Mr. Martinez-Villareal's lawyer did not mention his client's mental retardation. Mr. 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 Mr. Martinez-Villareal's mental retardation has emerged, brought out by his post-conviction lawyers, the trial judge and the prosecutor have said that Mr. Martinez-Villareal should not be executed. Nevertheless, he 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 Mr. 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.

Mr. Penry, who suffered brain damage at birth, has an I.Q. of about 60 and the mental ability of a 7-year-old. He is still on death row. His lawyers are preparing to return to the 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 the Penry case 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, 11 states -- Arkansas, Colorado, Indiana, Kansas, Kentucky, Nebraska, New Mexico, New York, South Dakota, Tennessee and Washington -- have enacted laws that prohibit these executions. Five other states -- Illinois, Missouri, Arizona, Florida and Texas -- came close to passing laws during their most recent legislative sessions.

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, an agency that represents poor defendants in capital cases.

The law, which was urged by advocates for the mentally retarded and the Roman Catholic Church, says that a person with an I.Q. below 70 is presumed to be mentally retarded, and requires a judge to vacate a death sentence imposed before the law was passed if the judge 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 I.Q. of 68, the other 65.

Illinois does not have a law prohibiting the execution of the mentally retarded, but it was his mental deficiencies that saved the life of Anthony Porter. Mr. Porter, who was sentenced to die for the murder of two people, has an I.Q. of 51. He 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 Mr. Porter's innocence, and after spending 16 years on death row, he was exonerated and released from prison last year.

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