New Rulings Don't Fling Open Death Row Doors

Current Inmates Trying to Use Decisions on Retardation, Jury Sentencing Face Uphill Legal Battles

By Paul Duggan

June 27, 2002;

Two major rulings on capital punishment by the U.S. Supreme Court in recent days -- one barring execution of the mentally retarded, the other invalidating the death-sentencing procedures in at least five states -- have given sudden hope to scores of condemned prisoners around the nation. But appellate lawyers and state attorneys general say it likely will take months, even years, of litigation before the full effects of the decisions become clear for inmates already on death row.

 This much is certain: The rulings, while significant, have not thrown open death row doors.

 On Monday, the court ruled that a jury, not a judge, should determine whether the facts in a murder case warrant a death sentence.

 In Arizona, Idaho, Montana, Colorado and Nebraska, where about 168 inmates are awaiting execution, state laws allow judges acting alone to weigh the "aggravating factors" in murder cases and decide if capital punishment should be imposed.

 The Supreme Court decision almost certainly will lead to changes in those laws for future cases, state officials and defense attorneys said. But they said prisoners already on death row who argue that the ruling also should apply to them will face protracted legal battles in most instances.

 Similarly, the court's decision last Thursday regarding mental retardation did not automatically spare the lives of all condemned inmates who are mentally retarded, appellate lawyers said. While the ruling will protect such defendants from being sentenced to death in the future, lawyers said, many of those already on death row could face tough procedural hurdles in trying to avoid execution.

 "The truth is, when all the questions raised by these [Supreme Court] decisions finally get settled, they may not affect as many people as the headlines suggest," said Stephen Bright, director of the Southern Center for Human Rights, which aids death row inmates in their appeals. "To what extent are these rulings going to be applied retroactively? To what extent will [prisoners] be barred from presenting claims because of all the procedural rules that the courts are so strict about applying?

 "No one knows how it's going to play out," Bright said.

 Besides invalidating the capital sentencing procedures in five states, Monday's Supreme Court ruling cast legal doubt on the procedures in Florida, Alabama, Indiana and Delaware, where 629 prisoners, including 383 in Florida, were on death row as of April 1. Judges in those states also make the life-or-death decisions in capital cases, but only after recommendations from juries. In the 29 other states with death penalty laws, juries decide whether capital punishment should be imposed.

 The Supreme Court's 7 to 2 decision overturned only the death sentence of Timothy Ring, the inmate who brought the case now referred back to Arizona, who was convicted of fatally shooting an armored-car driver.

 But many, if not all, of the remaining 120-plus prisoners on Arizona's death row, as well as those in the other judge-sentencing states, likely will cite the issue in their appeals "and argue to the [lower] courts that the ruling ought to be applied retroactively to them," said Andrew Hurwitz, one of Ring's attorneys.

 Whether the lower courts will agree is impossible to accurately predict, Hurwitz and others said.

 In the states directly affected by the ruling -- Arizona, Idaho, Montana, Colorado and Nebraska -- officials said or suggested that they would contest the wholesale application of the ruling to death row inmates.

 "The court's opinion doesn't say it's retroactive, so in our view it isn't," said Arizona Attorney General Janet Napolitano (D). "Unless the court specifically says in a decision that it's retroactive, then normally it isn't. But I'm sure we're going to be litigating this for quite a while."

 She said she believes the ruling applies only to Ring and 29 recently sentenced death row inmates in Arizona whose initial appeals have not been ruled on. Montana Attorney General Mike McGrath (D) agreed, saying, "For the people on death row in our state, the case has no impact. Of course it'll be litigated and litigated. But there's nothing at all in the ruling that says it's retroactive."

 In Idaho, Michael Henderson, a deputy attorney general, said, "It's going to be our position that the decision is not applicable to everyone on death row, and we believe the courts ultimately will agree with us." Officials in Colorado and Nebraska echoed that view. But appellate attorneys disagreed.

 "It's much too early to make blanket pronouncements about retroactivity," said lawyer William Hooks, who is handling the appeals of three of Montana's six death row inmates. "This will certainly be an issue in everyone's case. Otherwise, it's really beyond my ability to say how it will turn out."

 In banning executions of the mentally retarded, the court ruled, 6 to 3, that such defendants do not bear the same "moral culpability" as other convicted murderers.

 Eighteen of the 38 states with death penalty laws already prohibit capital punishment for those who meet the legal definition of mentally retarded, which is generally the same in those states. But 20 states -- including Virginia, where the Supreme Court case originated -- do not protect the mentally retarded from execution.

 Capital punishment opponents estimate that 5 percent to 10 percent of death row inmates are retarded, meaning their IQs are significantly below average. But, because of poor legal representation during their appeals, many of those inmates have never cited their low intellectual capabilities in arguing that they should be spared execution, according to death penalty opponents. Because they failed to raise the issue in their initial appeals, they may be barred from raising it now, lawyers say.

 "There are a whole array of [legal] barriers that could prevent some people from legitimately presenting these claims," said Bright, of the Southern Center for Human Rights. Referring to laws enacted in recent years to speed the death penalty appeals process -- barring inmates from raising late in the process issues that they could have raised earlier -- Bright and others said it is possible that some mentally retarded prisoners will never get a chance to take advantage of the Supreme Court ruling.

 The ruling "doesn't end the fight against executing the mentally retarded," said Greg Wiercioch, a death penalty appellate lawyer in Texas. "The battle is just beginning."

NEWSWEEK

Mental Powers: The Latest Death-Penalty War  Can criminals exploit the new Supreme court ruling?  

  July 1 issue � When the Supreme Court ruled last week that states can no longer execute the mentally retarded, opponents predicted a rash of appeals. Would death-row inmates try to game the system by flunking IQ tests? �They�re one of the easiest things to fake,� says Kurt Scheidegger, legal director of the Criminal Justice Legal Foundation, which filed a friend of the court brief arguing against the ban. But defense attorneys say IQ isn�t the only measure of retardation�though states will set the rules, inmates generally must prove that they had trouble functioning in daily life before the age of 18. �To feign being mentally retarded, you�d have to start in third grade,� says Stephen Bright of the Southern Center for Human Rights. 

  DEATH-PENALTY ADVOCATES hope the ruling will shore up support for capital punishment�by eliminating some of the cases that made the public most squeamish. But opponents are already aiming at their next target: banning the execution of juvenile offenders.

 And Congress is weighing a bill that would offer death-row inmates postconviction DNA testing and ensure that they have competent lawyers�an overhaul designed to prevent mistakes but preserve the ultimate punishment.2002 Newsweek, Inc. 

GRAND RAPID PRESS 

27.06.02

A stay of execution:Death penalty wrong for convicts with significant mental problems

June 27, 2002

Governments shouldn't be conducting executions, but it's especially troubling that 20 states in this civilized country have been able to legally execute mentally retarded inmates. The U.S. Supreme Court rightly suspended those death sentences last week. The court ruled the practice is cruel and unusual punishment.

Using the same logic, the execution of mentally ill inmates on Death Row also should be prohibited. Whether due to mental retardation or mental illness, convicts who cannot comprehend the nature or seriousness of their crime should not face the possibility of execution.

 The court acknowledged that 18 of the 38 states that allow capital punishment -- Michigan does not -- have specifically excluded mentally retarded convicts. Sixteen of the states did so after a 1989 Supreme Court ruling that mentally retarded inmates could be put to death. Legislators in at least two other states approved the restriction only to have it vetoed by governors -- James Thompson in Illinois in 1989 and Rick Perry in Texas last summer.

 "It is fair to say that a national consensus has developed against it," Justice John Paul Stevens wrote for the majority of six. He also rightly noted "the consistency of the direction of the change." Even Congress has put a stop to the execution of federal inmates who are mentally retarded.

 Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented, citing concerns that inmates would feign mental retardation as a way to escape death. The concern is valid, but shouldn't outweigh the fact that many inmates aren't faking their mental deficiencies. Eleven of the 159 Death Row inmates in Illinois scored 75 or less on at least one IQ test. The standard benchmark for mental retardation is 70.

 Many states have found a simple way around those concerns by requiring evidence of mental retardation in childhood. An IQ test alone shouldn't be considered sufficient evidence, nor should a solitary psychological exam be enough to confirm mental illness. Proving a defendant was mentally ill during commission of a crime likely will be difficult -- more difficult than proving mental retardation. The standard of proof should be high to curtail false claims. But when either mental impairment exists, life in a mental institution is a more humane and justifiable sentence than the gas chamber or a lethal injection.

 The court's decision was based on the case of a Virginia man, Daryl Renard Atkins, who was convicted of killing a man for beer money in 1996. Atkins has an IQ of 59 and the mental capacity of a 9- to 12-year-old child, according to court records. He has never held a job or lived on his own. How can a man with such limitations be expected to assist his attorney, take the stand in his own defense, hold up under cross-examination or understand the complex legal system that led him to Death Row? Also, one of the principal arguments used to justify capital punishment, that it deters criminal acts, simply doesn't apply when individuals are too deficient to look beyond their actions to the possible legal consequences.

 The court left it to states to define mental retardation. In doing so, legislators shouldn't rely solely on an IQ test. Past and present behavior, school records and self-sufficiency also should be considered. States should apply similar standards to mentally ill inmates. That wasn't the case in Texas where Andrea Yates, who killed her five children a year ago, faced the death penalty. An unreasonable prosecution team admitted she was mentally ill, but insisted on holding her fully accountable for her crimes. Greater wisdom from the jury kept her off Death Row.

 Public sentiment reflects strong opposition to executing mentally retarded inmates. The level of opposition rose from 61 percent in 1989 to 82 percent last month, according to a Gallup poll. Attitudes have changed. Public floggings or no longer acceptable. Killing people who don't have the mental capacity to understand their crimes shouldn't be either.