Clarity sought from court on executing the retarded

Death penalty foes hoping for exemption

April 8, 2002

Harriet Chiang,

  Last summer, California lawmakers, fearing political fallout, balked at the prospect of banning the death penalty for mentally retarded people.

But the issue is likely to return once the U.S. Supreme Court decides whether executing a Virginia inmate who is mentally retarded would be cruel and unusual punishment. The case of Daryl R. Atkins, who was an 18-year-old high school dropout with an IQ of 59 when he abducted and shot a man to death, was argued in February. A decision is due any time.

Most Americans favor capital punishment, but support is less intense than it was a decade ago. The growing use of DNA evidence has exonerated inmates who spent years on death row, prompting rising concern about whether the death penalty is fairly carried out.

 Part of the debate is over who should be held responsible for their actions and at what age. Defense lawyers argue that mentally retarded people are especially at risk because they are more likely to confess to a crime and act inappropriately during a trial.

 Given the gradual change in climate, opponents of capital punishment hope that the nation's highest court will make a rare exception in enforcing the death penalty.

 "If you're an anti-death penalty person, you take what you can get," said Robert Dinerstein, who teaches disability law at American University's Washington College of Law and is a member of the American Association of Mental Retardation.

 The question of whether a mentally retarded person should be put to death can be separated, Dinerstein noted, from the larger question of "whether the death penalty is something we should be doing."

 Richard Dieter, executive director of the Death Penalty Information Center, a Washington, D.C., advocacy group opposed to capital punishment, said the public "doesn't have any interest" in executing the mentally retarded.

 "It's a relatively noncontroversial reform at a time when the public is interested in perhaps broader reform," he said.

 BAN NOT NEEDED

Nonetheless, opponents of an exception say a ban is unnecessary. The criminal justice system already has safeguards that prevent the severely mentally retarded from receiving the death penalty, they say -- and a ban would give defendants another line of attack in court, stretching out appeals that already go on for years.

 "If we had a profoundly mentally retarded defendant, we wouldn't even go for the death penalty," said David Whitney, death penalty coordinator for the San Bernardino County district attorney's office. Mental retardation already is among the mitigating factors a jury considers when deciding whether a defendant should be sentenced to life in prison or death.

 Dane Gillette, who supervises death penalty appeals for the state attorney general's office, says each defendant should be judged individually, not as a member of a protected group.

 Whether or not people are mentally retarded "ought not to be a deciding factor as to whether they are fully responsible for the crimes they commit," he said.

 The last time the high court addressed the issue was in 1989. By a bare 5- to-4 majority, the justices said there was no "national consensus" or "evolving standard of decency" against executing the mentally retarded.

 At the time, only Georgia, Maryland and the federal government prohibited mentally retarded people from being put to death. Since then, 16 more states with the death penalty have imposed bans.

 CALIFORNIA LAWMAKERS BACK OFF

In California, one of the remaining 20 states that enforce the death penalty, candidates for public office who have come out against capital punishment have seen their political aspirations wither away. Perhaps as a result, lawmakers have shied away from making changes that appear to weaken the death penalty law.

 Fearing that moderates would be perceived as soft in their support for the death penalty, the Democrats on a state Assembly committee let a bill imposing a ban on executing the mentally retarded die last June.

 "It's hard to believe that the death penalty for people with mental retardation is going to make or break a politician's political future," said Dion Aroner, the Democratic assemblywoman from Berkeley who sponsored the bill.

 The U.S. Supreme Court's pending decision gives state legislators the opportunity to sidestep the issue -- at least until after a ruling. But Aroner predicts the issue is likely to come up again if the court rules that executing the mentally retarded is not cruel and unusual.

 71% OPPOSE PENALTY

 Polls show that Californians favor the death penalty by a 2-to-1 ratio, but a 1997 Field Poll found that 71 percent opposed capital punishment for the mentally retarded.

 Only 2.5 percent of the general population is considered mentally retarded, and barely 0.3 percent in California are diagnosed with the mental disability.

 The percentage is slightly higher -- roughly 4 percent -- among the prison population. But no one knows for sure how many of the nation's 3,711 inmates on death row are mentally retarded, because there is no central source of information. In California, at least a third of the 625 condemned inmates have no lawyers to handle their appeals.

 SPECTRUM OF RETARDATION

Those who favor the death penalty argue that mental retardation covers a gamut of mental disorders from mild to severe. Inmates can easily fake mental retardation, they say, making it a potential source of abuse.

 "We're talking about people who are right on the ragged edge," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. "In many cases, the facts of the crime themselves display a fair amount of mental ability."

 But unlike insanity or mental illness, which can arise in adulthood or because of brain damage, mental retardation is a developmental disorder that, by definition, must show up in childhood.

 People are considered mentally retarded if they have an IQ of 70 or less and are deficient in certain basic skills such as making change or taking public transit.

 "It's not hard to diagnose," Dinerstein said, but "it's hard to convey what its meaning is in the context of a criminal trial."

MANY ABLE TO STAND TRIAL

Although it is a distinct diagnosis, many competent lawyers have trouble recognizing the condition. Mentally retarded people are usually competent enough to stand trial -- but they don't understand the nuances and subtleties to really help their attorneys.

 They also are prone to confessions, defense lawyers say, because they don't want to reveal that they don't understand what's going on and tend to go along with suggestions.

 Defense lawyers say mentally retarded people are at greater risk of being found guilty because they tend to be gullible and try to hide their mental retardation.

 "I don't think of this as a delay question as much as one of fairness," said Michael Laurence, executive director of the habeas corpus resource center in San Francisco, which represents death penalty inmates in federal appeals. "How do we treat someone who has the function of a child?"