December 1, 2000
What
Do We Gain by Taking These Childlike Lives?
By
DINA R. HELLERSTEIN
LOS
ANGELES -- Just hours before the time when he was to be executed
last month, Johnny Paul Penry, a mentally retarded and brain-
damaged man, was granted a stay of execution by the United States
Supreme Court. When guards told him about the stay, Mr. Penry's
immediate concern was whether he could still have his last meal of
a cheeseburger and French fries.
Reading
this news, I thought of a conversation I had had with a mentally
retarded and brain-damaged Texas man in May 1997, moments before
his execution. I had heard the same childlike focus on the last
meal. Because I had represented that man, Terry Washington, in his
final appeals, it fell on me to report to him, when he had already
been moved to the execution chamber, that neither the United
States Supreme Court nor Gov. George W. Bush would stop his
execution. I was concerned with how Mr. Washington would take the
news. He told me the new guards were real nice and they gave him
real good food. Within a half-hour he was dead.
Texas
prosecutors and judges had all agreed that my client had the
mental functioning of a 7-year old child. The jurors who sentenced
him to death, however, never knew about his condition because his
appointed trial attorney, who specialized in divorce law, never
thought to tell them. But none of this was considered an obstacle
to his execution.
The
life of Terry Washington was doomed even before he was born. It
was fetal alcohol syndrome that probably caused his brain damage,
the experts said. He grew up in extreme poverty, one of 11
children living in a two-room shack with no running water or
electricity. The children were beaten often, their mother was
hospitalized in a mental institution and their father abandoned
them for the bars. Mr. Washington's mental retardation was
recognized when he entered school, and tests throughout his short
life (he died at 33, after 10 years in prison) showed an I.Q.
ranging from 58 to 69. His reading never advanced beyond the
second-grade level. His communication skills were at the level of
a 7- year-old and his social skills at that of a 5-year-old.
The
brain damage was separate from the mental retardation and affected
Mr. Washington's speech and his ability to understand and order
concepts. His ability to put events in sequence was impaired, so
that he was unable to recall the happenings in a given day in the
order in which they took place. Imagine such a person sitting in a
courtroom attempting to follow his own trial.
Speaking
to Mr. Washington, the lawyer who represented him in his trial for
the 1987 murder of Beatrice Huling may have at first concluded
that his client was a shy, quiet man. A common trait of the
mentally retarded is the effort to hide their disability. Any real
conversation would have made Mr. Washington's problems apparent.
The lawyer also had school records showing the special education
courses and I.Q. results. Still, at no point during the short
trial did the lawyer bring the subject of Mr. Washington's mental
retardation or brain damage to the attention of the judge or jury.
At the sentencing phase, the sole witness presented by the defense
was Mr. Washington's mother, who told the jurors that her son was
a nice boy.
During
the years in which we pursued his appeals, I spent time with Terry
Washington at the Huntsville prison and received many letters
written in his childlike scrawl. I learned later that he dictated
these letters to a fellow prisoner, then copied them into his own
handwriting. He dotted his i's with little hearts. During my last
visit, he proudly announced that he could spell my whole name. He
made me boxes with Popsicle sticks. He told me that when they let
him go he wanted to come to visit in New York City so he could see
the tall buildings.
It
seems obvious that if the jurors who decided his fate had known
the Terry Washington that I knew, they would have understood that
killing this man served no valid purpose. The theory of
retribution demands that punishment relate to personal
blameworthiness; adults who function at age 7 are no more
blameworthy than actual 7-year-olds. Nor is deterrence served by
this sort of execution, since a mentally retarded man would hardly
pause before a murder to contemplate legal consequences.
Currently,
half the states allow execution of the mentally retarded. But, as
polls have confirmed, even to many people who support capital
punishment this kind of execution feels wrong. That visceral
aversion should tell us something about justice.
Dina R. Hellerstein
represented Terry Washington from 1993 to 1997 in his
post-conviction appeals.
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