Dallas Morning News

TEXAS: Pending executions renew debate on retarded -- Advocates urging state to re-evaluate policy on killing inmates

Petitions to the U.S. Supreme Court arguing that mentally retarded offenders should not be put to death have delayed the executions of 2 Texas inmates recently, and the issue is likely to resurface soon. Legal experts say that other inmates with approaching executions may seek a reprieve on the grounds that they are mentally retarded. Greg Wiercioch, an attorney with the Texas Defender Service, a nonprofit group that handles capital murder appeals, estimated that there may be 20 or 25 mentally retarded Texas inmates on death row.

 Among those is Willie Mack Moddon, convicted of capital murder for the 1984 fatal stabbing of a service station clerk in Lufkin and scheduled to die by injection on June 11. His attorneys are preparing to raise the issue of mental retardation.

 "His IQ is 64," Mr. Wiercioch said. "All areas of intellectual functioning were significantly below normal. ... This all came out at trial during his punishment phase." One benchmark for mental retardation is an IQ of 70 or lower.

 Angelina County District Attorney Clyde Herrington acknowledges that Mr. Moddon's intellect is limited, but asserted that some tests placed his IQ in the 80s. Mr. Moddon, he said, should face execution.

 "He has the capability to plan ahead, make decisions, change his plans based on events that occurred," Mr. Herrington said. "He carried out a very deliberate, brutal crime."

 Mr. Moddon, who's been tried and sentenced to death twice for the stabbing death of 27-year-old Deborah Davenport, is among 13 Texas inmates with scheduled execution dates through August. A stay of execution was issued May 1 for Tarrant County inmate Curtis Moore after his attorneys raised the mental retardation issue in a petition to the nation's highest court. And Harris County death row inmate Brian Edward Davis, who was to be executed Tuesday, got a reprieve the day he was set to die.

 Richard Dieter, director of the nonprofit Death Penalty Information Center that monitors capital punishment, said there are indications that at least seven Texas inmates executed since 1982 may have been mentally retarded, a number some Texas officials dispute.

 Defining retardation

 The definition of mental retardation may include an IQ of 70 or below, serious impairments in the individual's ability to cope with daily activities and the manifestation of symptoms before the age of 18. Texas Department of Criminal Justice spokesman Larry Fitzgerald said that inmates entering Texas prisons with the exception of those headed for death row receive IQ tests.

 The results, he said, help determine where inmates should be housed and to assess their educational needs and abilities.

 "Obviously, that's out the window with a death row offender," whose housing arrangements are predetermined and who is not eligible for educational programs, Mr. Fitzgerald said.

 Some prosecutors see the mental retardation issue as a delay tactic of dubious merit.

 Diane Beckham, staff counsel for the Texas District and County Attorneys Association, said assertions that Mr. Davis is mentally retarded were made only when his execution appeared imminent. In Mr. Moore's case, prosecutors noted, the issue was not raised at trial.

 "If the Supreme Court is adopting a policy that they want to hold off on anyone who even breathes the two words together 'mental retardation' that's certainly their prerogative," Ms. Beckham said. "But it will be interesting to see how many other defendants are going to raise this issue, whether or not there's any evidence at any point during the trial that supports the claim."

 Supreme Court case

 In February, the Supreme Court heard arguments in a case involving a Virginia death row inmate purported to be mentally retarded. In Atkins vs. Virginia, the justices will examine whether executing mentally retarded offenders is cruel and unusual punishment, something prohibited by the Eighth Amendment of the Constitution. The court is expected to rule on the case this summer.

 "Right now, all that's happening is that cases are being held up," said David Dow, University of Houston law professor. "If the court decides that the Constitution forbids the execution of the mentally retarded, and it also establishes some framework for deciding whether somebody is mentally retarded for the purpose of that ruling, then states are going to become bogged down."

 Mr. Dieter said it's not clear who would be able to prove mental retardation or even what the criteria would be. But until the Supreme Court makes its decision, he said, it would seem prudent to stay cases involving inmates who may be mentally retarded.

 Inmates released early

 Mr. Herrington is worried that inmates such as Mr. Moddon could be released if the Supreme Court chooses to stop the execution of offenders deemed mentally retarded. Mr. Herrington noted that Mr. Moddon had prior convictions, including aggravated robbery. He also alleged that prior to Ms. Davenport's death, the inmate made statements that the next time he committed a robbery he would not leave a witness.

 "Under the current law, after September 1, 1994, if a person receives a life sentence [in a capital case], they have to be held for at least 40 years before they can be considered for parole," Mr. Herrington said. On earlier cases, parole eligibility may be as low as 15 years, "so there's a real public safety concern in some of these old cases."

 Mr. Moddon, he said, "would probably be parole-eligible now."

 The death sentence for Johnny Paul Penry was overturned last year after the Supreme Court concluded that instructions to his jury had not permitted proper consideration of mitigating evidence, such as his mental retardation and evidence that he was abused as a child. However, the justices did not overturn his conviction, and a new punishment hearing for Mr. Penry is under way.

 Mr. Penry's 1st conviction, for the 1979 rape and murder of Pamela Moseley Carpenter in Livingston, was overturned in 1989 because of similar issues with jury instructions. In the majority opinion, Justice Sandra Day O'Connor wrote that there was "insufficient evidence of a national consensus against executing the retarded."

 Mr. Wiercioch said that the Atkins case could lead to a blanket prohibition of executing the mentally retarded, "just like you can't execute people who are severely mentally ill and don't comprehend why they are being executed."

 He suggests that the national consensus referred to by Justice O'Connor has arrived.

 Bans across nation

 According to the Death Penalty Information Center, 18 states and the federal government prohibit the execution of mentally retarded offenders. Last year, Gov. Rick Perry vetoed a bill banning such executions and many prosecutors are vocal in their opposition to a ban.

"I don't think a blanket ban on the death penalty for folks who have some indication of mental retardation is appropriate," Mr. Herrington said. "People who are mentally retarded, most of the time, don't commit serious offenses. ... You have to kind of look at things on a case-by-case basis."