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Execution of the Mentally Retarded

In Resolution 1989/64, 24 May 1989, The United Nations Economic and Social Council Recommends that Member States take steps to implement the safeguards and strengthen further the protection of the rights of those facing the death penalty, where applicable, by:
Eliminating the death penalty for persons suffering from
mental retardation or extremely limited mental competence,
whether at the stage of sentence or execution

Executing mentally impaired prisoners is unjust and cruel

Americans seem willing to execute almost anybody

Editorial in Sunday Dallas Morning News, November 22, 1998

In 1985, Virginia executed Morris Mason, a mentally retarded, mentally ill 32-year-old man. Shortly before he was taken to the execution chamber, he asked 2 visitors to tell another death row inmate that "when I get back, I'm gonna show him I can play basketball as good as he can."

President Clinton took time off from his 1992 campaign to be in Arkansas for the execution of killer Rickey Ray Rector. He was so brain damaged from a suicide attempt that he asked guards to set aside his piece of pecan pie so he could eat it after his execution, according to the New York Times.

And Texas appears willing to kill Johnny Paul Penry, a rapist-murderer with moderate retardation and a childhood filled with severe physical abuse and neglect.
Johnny Penry's life started with a difficult birth during which his mother nearly died from her blood loss. She brutalized the boy for the next decade, beating him and burning him with cigarettes. He was locked in a room and left in his own waste. He never finished 1st grade. He bounced in and out of state hospitals with consistent diagnoses of mental retardation and behavioral problems.
Like most people with retardation, Mr. Penry is not profoundly retarded. Throughout his lifetime, his "full scale" IQ has been assessed between 43 and 63. The cutoff for low-normal intelligence is usually set at 70. His adaptive skills--how well he could handle social interactions and daily life--were poor. But, like many people with mild retardation, he works hard to conceal his deficiency. He can fool most laypeople for short periods.

At 21, he pleaded guilty to rape. 2 years later, in August 1979, he was released despoite a parole report full of warnings.
In October 1979, he went to the Livingston home of Pamela Moseley Carpenter. He forced his way in and raped her. Ms Carpenter, a well-liked member of a prominent local family, apparently tried to defend herself with a pair of scissors she had been using to make Halloween costumes. He grabbed the scissors and stabbed her. She identified him before dying at the hospital.
Mr. Penry voluntarily went with police, confessed and signed the police-typed statements, even though he could not read or write.
A jury sentenced him to death.

His attorney appealed. His case went all the way to the US Supreme Court, which returned a split tuling in 1989.
The high court stated that jurors should have been able to consider Mr. Penry's mental abilities as a mitigating factor when assessing punishment. That part of his trial needed to be reheard.
But the court also decided, infamously, that executing mentally retarded prisoners was not unconstitutionally cruel.
Mr. Penry was retried in Texas and again sentenced to death. He was scheduled for execution in May but received a stay.
True, Johnny Paul Penry's 2nd trial was more fair that his 1st. He still lost. Now, what do the people of Texas gain by executing him?
The state will prevent him from hurting anyone else - but it could do that by keeping him in prison for the rest of his life.

Will his execution teach similar people a lesson? Probably not. He has diifficulty understanding his own situation; other people with mental retardation and poor impulse control probably won't understand and learn from it, either.

Meanwhile, there are many reasons not to execute Johnny Paul Penry.
There is the capriciousness of capital punishment. Other defendants, with full mental capacities and fewer childhood traumas, have committed similar violence or crimes with greater premeditation - yet have not received a death sentence. There is no good explanation why his crime was so much worse that he deserves execution.

There is the issue of justice. For the family of Johnny Penry's victim, justice will come when he is brought into the execution chamber. For Johnny Paul Penry, justice has no meaning. He cannot understand it. He has not experienced it. His family and law enforcement authorities failed to protect him from his mother; she was not punished for the abuse she inflicted on her son. He is paying for his crimes, but the people who hurt him will not pay for theirs.

There is the issue of morality. Should a civilized society levy its most extreme punishment against someone who cannot fully understand it? Against someone who could not help his own lawyers defend him? Against someone who may have confessed to "help out" the police, not realizing he's just helped himself to the death chamber?

Other states, including Nebraska and Georgia, bar the execution of prisoners with mental retardation. Texas should not allow it.

It is pointless.

It is immoral.

Why Is Doil Lane Still on Death Row?

Despite a Supreme Court ban, mentally retarded Texas inmates await execution

Austin Chronicle, October 16, 2003

Doil Edward Lane shuffles into the small cage that is the visiting room for death row inmates at the Polunsky Unit in Livingston. His head hangs down as he turns to let the guards remove his handcuffs. When he looks up, his eyes are red, his cheeks splotchy and wet. He crinkles up his face, picks up the telephone that allows him to talk with the visitors on the other side of the window, and says, "It's hard to talk about." So hard, in fact, that Lane sets down the phone, puts his face in his hands, and cries.

Lane is weeping not because he is facing execution, nor even because of his incarceration on death row. He's broken-hearted because prison officials have moved him to another cellblock -- away from his best friend, Marion. Now he has no one to talk to, no one to read and write letters for him. "I really miss him," Lane says more than once, whining like a 7-year-old whose best friend just moved out of town. He cries intermittently, and then asks, "Do you want to see a picture I drew?" When he's sure no guard is watching, he pulls from the waistband of his pants a pencil drawing of his two best friends, Marion Dudley and Leo Little. Lane says Dudley is the only other inmate who will take the time to read and explain things to him. Little helped Lane get books from the prison library -- not books to read (Lane is essentially illiterate), but books with good pictures so that Lane could look at them, trace the images, and color them in with his pencils. His favorite book is The Apple Tree. "It has really good pictures," he says.

Lane has been on death row for more than 9 years. He was found guilty and sentenced to death by a jury in San Marcos in 1994 for the kidnapping and murder of 8-year-old Bertha Martinez. The crime was a parent's worst nightmare -- Bertha was in her neighborhood playing with some friends when she went off with a couple who said they needed help looking for their lost dog. Her battered and bruised body was found many days later in a small shack not far from her home.

Almost 12 years later, Lane confessed to the crime, saying that his stepfather and mother forced him to participate (neither was ever prosecuted). His confession came while he was being questioned in Kansas about the disappearance of 9-year-old Nancy Shoemaker, who had also been kidnapped and killed. Lane also confessed to having participated in that crime, this time saying that his friend Donnie Wacker made him do it.

Lane's confessions were unusual in a number of ways. His statements about what happened changed frequently during questioning; details he recounted were inconsistent with facts already known to the police; and there was neither physical evidence nor eyewitness testimony linking Lane to either crime. But the most unusual thing about Lane's confession was his situation when he gave it: Lane, then 30 years old and rather burly, was sitting in the lap of the police officer taking his statement, with his arm around the officer's neck and his face buried in the officer's chest, weeping.

Doil Lane is mentally retarded; doctors believe his brain may have been deprived of oxygen during his birth. His biological father was 74 years old and died shortly after Lane was born. His mother and her new husband neglected him, and later abused him both psychologically and sexually. Lane was placed in special-education classes at school, and consistently did poorly there. Eventually the state of Kansas stepped in, removed him from his home and sent him to the Brown School in San Marcos, a residential treatment center for children with developmental disabilities.
Testing from his time at the Brown School, and later for his appeals, shows that his intellectual functioning is significantly impaired, that his full scale IQ is 65-67 -- among the lowest 1% of the population -- and that his mental and emotional development is that of an 8- to 10-year-old child.

Slow Wheels Turning
In 2001, the Texas Legislature passed a bill that would have banned the execution of the mentally retarded. Gov. Rick Perry called it unnecessary and vetoed it, saying, "We do not execute mentally retarded murderers today." The governor's statement was inaccurate on its face -- nobody involved in the capital cases of Mario Marquez and Terry Washington disputes that both were mentally retarded at the time of their Huntsville executions in the late 1990s -- but at the time, Perry could at least have argued that no national standard required Texas to refrain from such executions. Then last year, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the "evolving standards of decency" in this country would no longer tolerate the execution of people with mental retardation, noting that no other Western democracy allows their execution. The court thereby officially abolished capital punishment for the mentally retarded.

Since the national reinstatement of the death penalty in 1976, prosecutors had been acting under the assumption that seeking a death sentence for a person with mental retardation was permissible as long as the jury was able to consider the issue in deciding whether to impose a sentence of death. The Atkins decision changed that -- but the Supreme Court left it to the individual states to adopt procedures for ensuring that no person with mental retardation would be executed. The court gave scant guidance as to what those procedures should be, but did suggest that a finding of mental retardation require that the defendant have subaverage intellectual functioning, significant limitations in adaptive skills, and that the deficiencies manifest before the age of 18 -- requirements consistent with both medical and governmental definitions of mental retardation.

Whatever their opinions of the death penalty, Texans should wonder why, more than a year after the Atkins decision, Doil Lane remains on death row.

The prosecution in Lane's case has never disputed that he is mentally retarded. In fact, at trial, Hays Co. District Attorney Michael Wenk presented the fact of Lane's mental retardation as part of the expert opinion regarding whether Lane would be a danger to the community if he were not sentenced to death. In his questioning of the state's expert witness on the issue of future dangerousness, Wenk asked the expert to assume "that [Lane] has been diagnosed as borderline or mildly retarded, with an IQ in the range of 70." Wenk told the jury: "There is no question that there is something wrong with [Lane]. ... He's mildly retarded; he comes from a dysfunctional family. We're not disputing that."

Last August, Lane's attorney, Austin lawyer and UT law professor Bill Allison, filed a motion asking the trial court to remove Lane from death row because of his mental retardation. According to Rick Wetzel, former chief counsel for the Court of Criminal Appeals, the statutory process requires that the trial court forward such motions to the CCA within a short period of time. However, for reasons that the Hays Co. clerk's office can't explain, that has not been done in Lane's case. The prosecutor's office has never responded to Lane's motion, and District Attorney Wenk declined comment, replying instead that "pursuant to the Code of Professional Responsibility ... all prosecutors are ethically mandated not to discuss the facts or other substantive matters relevant to 'ongoing' criminal prosecutions [emphasis in original]." Wenk did not respond to a question regarding what obligations the Code of Professional Responsibility might place on a prosecutor when the Supreme Court declares that a person he has prosecuted is no longer eligible for the punishment imposed. So, 16 months after the Supreme Court ruled that a person with mental retardation cannot be executed, Doil Lane remains on death row, and the prosecutor has yet to move to comply with the court's ruling.

Whatever Wenk's inaction means to Doil Lane, it is costing Texas taxpayers at least an extra $6,500 a year. The Texas Department of Criminal Justice estimates that the cost of housing an inmate on death row is about $22,500 per year, while the yearly cost of housing somebody in the general prison population is around $16,000.

According to Bryce Benjet of Texas Defender Service, a private nonprofit capital defense firm in Austin, nobody knows exactly how many people with mental retardation remain on death row in Texas. No state agency is required to track whether an inmate on death row is mentally retarded, and prosecutors have taken the position that it is up to the defense to raise the issue. Unfortunately, most defense counsels do not have sufficient resources to do the required testing, nor to hire an investigator to search for the required records. According to the statute governing appointment of counsel in post-conviction proceedings, if an inmate wants to rely on a new ruling of the Supreme Court issued after he filed his first round of appeals, the inmate must first make a showing that he may be entitled to relief before he is entitled to appointment of counsel. As Benjet says, "The inmate has to prove that he is mentally retarded in order to be appointed an attorney who will be paid to develop the evidence of mental retardation."

In part because Texas Defender Service attorneys have helped a number of inmates gather the materials to make the initial showing of mental retardation, the Court of Criminal Appeals has ruled since last June in 38 cases raising the issue, and found in 28 cases that the inmate is entitled to a hearing to see whether he meets the standard set in the Atkins case. However, not a single inmate has been removed from death row based on an Atkins claim.

The Motton Exception
The person most likely to be the 1st removed from death row based on Atkins is Willie Mack Motton. Motton was convicted and sentenced to death for the 1984 robbery and murder of Deborah Davenport in Lufkin. Davenport was working at a gas station when Motton and 2 friends robbed her, and according to prosecutors, Motton stabbed and killed her in order to eliminate witnesses. (For unknown reasons, all the pleadings in Motton's case misspell his name, as either "Moddon" or "Modden.")

Motton's initial 1984 conviction was reversed on appeal because evidence regarding his mental retardation had not been properly admitted at his first trial. In 1993, he was again convicted and sentenced to death during a trial in which the fact that he is mentally retarded was not contested by the state. Last June, Motton's attorney, Greg Wiercioch of Texas Defender Service, filed a motion for a stay of his execution and relief based upon the Atkins decision. The stay was granted, and at a March hearing Wiercioch and the prosecutors began discussing a settlement. Wiercioch suggested that in return for dropping the death penalty, Motton would plead guilty to other as yet uncharged offenses and waive any right he has to parole.

Angelina Co. District Attorney Clyde Herrington had been involved in Motton's first trial and was lead prosecutor in the second. He had a great deal of time and energy invested in securing the conviction and the death sentence. He also had a personal reason to be interested in the outcome of the case -- he had gone to high school with Deborah Davenport, and was in the same graduating class as her sister Pam.

Perhaps because of Herrington's potential conflicts, Assistant District Attorney Janet Cassels was assigned to research the options in the Motton case. Cassels says she "couldn't find anybody who could tell me what the procedure should be." She was troubled by the Atkins decision, not only because it dramatically changed the law in capital cases, but because she believes the Supreme Court was somewhat disingenuous in declaring a categorical exemption prohibiting the execution of people with mental retardation because it "doesn't lend itself to a bright-line [precise] rule." Cassels believes that the Supreme Court's reasoning for adopting a prohibition against the execution of the mentally retarded -- that their abilities to reason and control their impulses are diminished and therefore their moral culpability is also diminished -- does not take into account that there is a great disparity in abilities even among those officially diagnosed as mentally retarded.

But despite her misgivings about Atkins, Cassels -- and later Herrington as well -- came to believe that it was likely that the courts would grant relief to Motton, and their biggest concern became that he would then be eligible for release on parole as early as 2005. Herrington met with the victim's family members and explained the situation. The family eventually agreed that they would feel more secure with a deal which would, with certainty, keep Motton in prison for the rest of his life, rather than take the risk that they would not prevail on the mental retardation issue and Motton could be out of prison in just a few years.

In April, Motton pled guilty to a number of previously uncharged crimes, including arson, aggravated assault with a deadly weapon (in prison), and possession of a deadly weapon in a penal institution. He also agreed to consecutive life sentences, meaning that he will spend the rest of his life in prison. In exchange, prosecutors agreed to recommend that Motton's death sentence be overturned on the grounds of mental retardation. The case has been pending in the Court of Criminal Appeals for six months. Assuming that the CCA affirms the trial court decision, Motton should soon be moved from death row into the general TDCJ population.

According to Rick Wetzel of the CCA, Motton's case is thus far unique -- the only Texas instance in which prosecutors have agreed that Motton meets the standard for mental retardation and, based on Atkins, a trial court has recommended that the death sentence be overturned. In future cases raising an Atkins claim, the court will have to determine exactly what relief should be granted should an inmate be able to show that he is mentally retarded. The question then will be whether the sentence should be automatically changed to a life sentence, or whether the case should be sent back for a retrial. The law seems to allow either result. But, adds Wetzel, it would be "kind of ridiculous. Why would they want to retry the case when the best they could get would be a life sentence?"

The confusion over these cases -- and any future cases affected by a question of mental retardation -- could have been resolved by the Legislature. In the 2003 regular session, Sen. Rodney Ellis, D-Houston, offered a bill virtually identical to the 2001 bill vetoed by the governor that would have created a procedure allowing a jury to make a pretrial determination whether a defendant claiming mental retardation met the definition set forth in Atkins. The mental health and mental retardation communities, as well as the criminal defense bar, supported the bill; however, the state district attorneys largely supported a bill drafted by former prosecutor and Austin Rep. Terry Keel. Under Keel's bill, the issue of mental retardation would be decided by the jury after a capital trial's penalty phase -- after the same jury had already convicted the defendant of capital murder, determined that he or she was a future danger, and agreed on a sentence of execution. Only then, if the same jury agreed on a finding of mental retardation, would the defendant be ruled ineligible for execution.

Ultimately, the House and Senate could not agree on a compromise, and no bill made it to the floor. Andrea Keilen, who was on the team which tried to reach a compromise piece of legislation, described the Keel bill this way: "That legislation was not about complying with Atkins, but about not letting Atkins affect the way we handle death penalty cases in Texas." By failing to act, the Legislature undermined at least part of the intent of the Atkins decision -- removing people with mental retardation from death row.

How Many Wait?
Both Lane and Motton express frustration with life in the Polunsky Unit -- they say the staff is disrespectful, and they are isolated 24 hours a day, even during recreation time. Lane complains that his crayons were taken from him when death row was moved from the Ellis Unit in Huntsville. In a questionnaire he completed last year, in his barely legible handwriting he wrote: "You tuck away my clores when you can not hurt no one with a box [of] 24 cloros." Asked what he might look forward to should he be removed from death row, Lane is uncomprehending. "But where would they take me?" he asks.

Willie Motton says he doesn't really care where TDCJ puts him when he is removed from death row -- "Anywhere is better than here." He is looking forward to having a little more room to move around, and a chance to play checkers or dominos. He is mostly looking forward to being able to attend church, which has not been allowed since death row moved to Livingston.
Motton says that his strong faith has helped him survive on death row, but he wants to be able to worship with other inmates.

Doil Lane -- and perhaps dozens like him among the 449 inmates in the Polunsky Unit -- will remain on death row, essentially ignorant of the political and legislative turmoil that surrounds him. For now, Lane spends his days coloring his drawings, looking at his picture books, and waiting, until some court finally gets around to deciding whether -- and when -- he will be released from death row.

(Rita Radostitz formerly represented capital defendants in Texas. She now lives in Oregon)

E.J. Montini, The Arizona Republic, February 2001

Just about 5 years ago, a slow-witted murderer named Luis Mata invited me to watch him die.
Mata and his brother, Alonzo, had been at the state prison in Florence for nearly 20 years by then. They'd been convicted of brutally killing a woman named Debra Lopez in 1977. After a trial and appeals, Alonzo received life in prison, and Luis was sentenced to death.
By the time Mata invited me to his execution, the original prosecutor on the case had changed his mind about Mata's sentence.
Attorneys representing Mata produced mental health evaluations and evidence of childhood brain injuries that suggested Mata had the IQ of a paperweight.
"None of this critical information was presented at Luis Mata's sentencing hearing," said the prosecutor, Michael Donovan. "Quite frankly, after reviewing these materials, I am shocked and upset that this information had not been presented. . . . Had I known this information, I would not have requested or pursued a death sentence."
Mata was killed anyway.
Back then, the state of Arizona had no problem executing mentally retarded murderers. We still don't.
The subject came up recently at the Capital Case Commission, a 30-member panel meeting to examine how Arizona defines and administers the death penalty.
The bottom line is: Arizona really likes it.
One member of the commission, attorney James Bush, suggested that the commission urge legislators to pass a law banning the execution of retarded killers. 13 states with death penalties already prohibit such executions.
Bush's reasoning is simple.
"If a state won't execute a juvenile who commits murder because he's too young, it doesn't make much sense to execute a man who's 30 but with the mind of a 6-year-old," he said.
Unfortunately, logic has nothing to do with the death penalty.
Neither does fairness. Or common sense.
The national Death Penalty Information Center claims 35 mentally retarded prisoners have been executed in the United States in recent years.
"The problem most people have with changing the (Arizona) law concerns the guidelines," Bush said. "People are concerned about establishing fair standards. They don't want to create a situation like the one we have with people deemed 'mentally incompetent.' People might fake it."
While mentally retarded murderers can be put to death in Arizona, state law doesn't permit the execution of the insane, at least in theory. The truth is, the statute is crazier than that. It says we must give a lunatic enough treatment to make him competent, then kill him. Some members of the Legislature are trying to sort out the mental competency mess, making it more rational. It won't work. It can't.
A system that sanctions the execution of the mentally retarded - even if they're murderers - is itself deranged.
That's one of the reasons I declined Luis Mata's invitation back in 1996. Not because he deserved pity or mercy. He didn't.
But killing is a messy business, even in these days of tidy lethal injection. You can't rationalize it or sanitize it. You can only abolish it. And that's not likely as long the lunatics are running the asylum we call state government.

St. Petersburg Timers
Dec 7, 1999

Freddie Lee Hall has brain damage.
Freddie Lee Hall has an IQ of 60.
Freddie Lee Hall was tortured by his mother.
Freddie Lee Hall thinks he is cursed by the "Root Man".

Freddie Lee Hall is also a convicted killer, and the same judge who acknowledged Hall's "serious mental difficulties" chose not to put him in prison for life but to sentence him to death.
* * *

Freddie Lee Hall has an IQ of 60. He has brain damage, learning disabilities, and the intellect of a small child. The 16th of 17 children, young Freddie was tortured by his mother, sometimes stuffed in a sack and swung over a fire or tied to the rafters and beaten. Now a tall, hulking adult whose whispered speech is almost incomprehensible, Hall is delusional and blames his troubles on the curse of a wizard-like character he calls the "Root Man."
According to the state of Florida, he is also something else: a cold, devious, calculating killer who deserves nothing less than the ultimate punishment of death.
Hall's case is extraordinary in many respects. 21 years ago, he and a partner, Mack Ruffin Jr., murdered a young pregnant woman. As they fled authorities, the 2 shot and killed a popular and personable Hernando County sheriff's deputy, enshrining themselves as 2 of the county's most notorious criminals. But Ruffin is serving a life sentence while Hall was condemned to die for the woman's death -- even though a judge admitted that Hall was retarded and that Ruffin could very well have been the triggerman.
Prosecutors argued that Hall, physically bigger and older than Ruffin, used considerable powers of persuasion to make Ruffin kill. 2 judges, juries and the Florida Supreme Court so far have bought the argument. Curiously, they believe a man with the mind of a child to be amastermind.
The prosecutorial argument is perplexing enough, but the death sentence in itself raises a question that is percolating across America: If capital punishment is intended to punish the most culpable criminals for the most horrible crimes, is it right to execute someone so retarded or so deranged that he cannot fully comprehend his crime or his punishment?
The U.S. Supreme Court has already declared that states cannot execute people who are insane, though it has not resolved whether they can execute people who are retarded. As a matter of law, most states prohibit the execution of insane criminals, and 12 states and Congress also have outlawed putting retarded killers to death. Sadly, Florida continues to do both.
But this is one death penalty debate on which both sides ought to find common ground. If the courts say the state can't execute anyone younger than 17, should the state execute a man who is, mentally speaking, a boy? Given the available alternative of life in prison, the answer is clear.
"To execute (a retarded person) is like executing someone who understands things as a child does," says Denis Keyes, a professor of special education at the College of Charleston, who has testified as an expert witness in several capital cases in Florida and around the country.
"But that does seem to be the way we're going."
The same system that has put Hall, now 54, on death row has already sent at least 34 arguably retarded men to their deaths in this nation since 1976, according to the Washington, D.C.-based Death Penalty Information Center. In Florida, at least 3 cases have been identified,and an untold number of other mentally incompetent men are awaiting their death dates.
Nollie Lee Martin was executed May 12, 1992, after the courts refused to be swayed by top researchers from Harvard, Yale and New York Universities who concluded that Martin suffered psychosis and severe organic brain damage that could have led him to commit murder and almost certainly prevented him from understanding his fate.
Arthur Frederick Goode III failed to convince the Florida Supreme Court that he was incompetent to be executed, despite being diagnosed with mental retardation as a young boy and, with an IQ of about 60, being compared by one noted psychiatrist to a "small child" who could never appreciate the meaning of the death penalty.
James Dupree Henry was convicted of 1st-degree murder in 1974 and condemned to death. 10 years later new evidence and testimony from an NYU doctor revealed that he was an "intellectually limited brain-damaged individual," but the Supreme Court said it was too late. Henry was executed Sept. 20, 1984.
It is difficult to know how many of Florida's about 370 condemned inmates are retarded. Some experts estimate as many as 10 % to 15 % of the nation's death row inmates are retarded. Many more are mentally ill with conditions from psychosis to paranoid schizophrenia. What is clear is that the issue of mental competence to be executed is raised in dozens of cases and, as long as Florida fails to deal with the issue, it will continue to bog down a judiciary that already spends too much time on the death penalty.
Often, there is a pattern to these cases. If a defendant's state of mental health is raised at all during the original guilt phase of a trial, the jury often is swayed more by state experts than those hired by the defense.
Occasionally, inexperienced or ignorant defense lawyers miss or do not even raise the issue, and if they do, they frequently do not explore all the available tests. When the defense does present medical evidence, the state always finds an expert to disagree. A retarded defendant, meanwhile, often is advised not to take the stand to explain himself.
"They don't make good witnesses. They cannot assist in their own defense," argues Frank Mann of Alva, a former legislator who has lobbied on behalf of the Florida Association for Retarded Citizens. "That's what separates them from everyone else in society."
The question of an inmate's competency for execution is different from his competency to stand trial. Indeed, the threshold for a death sentence should be much higher. The Florida case of Alvin Ford helps set some of the legal framework for this debate.
Raising questions about Ford's mental competence since he had been sentenced to death row, the U.S. Supreme Court ruled 13 years ago that executing an insane inmate would violate the Eighth Amendment prohibition on cruel and unusual punishment. The majority ruled that Ford, who suffered from well-documented mental illness, had been deemed competent for execution by a flawed system. Florida's law requires that, to be considered sane for execution, an inmate must understand "the nature and effect of the death penalty and why it is to be imposed upon him or her." If a defendant argues incompetence, the governor appoints a panel of 3 experts to examine him. Before the Ford case, the final decision was left to the governor and the defense had no chance to challenge it.
The Ford ruling set an important precedent: The final say over a convict's competence to be executed should lie with the courts. Still, though, the law is vague and open to interpretation. The Ford decision left huge questions lingering, most notably how the courts should interpret disagreements among mental health professionals. What's more, no law in Florida directly addresses the issue of retardation.
In Florida, where potential jurors who oppose the death penalty are often automatically tossed out of the pool and where it takes merely a majority of the jury to recommend death, there is rarely enough of an open-minded evaluation of a killer's past troubles or mental condition to block a death sentence. As a result, retarded and mentally ill men such as Freddie Lee Hall routinely wind up on death row.
"The bottom line is that as long as we continue to make these life and death decisions, we will do it with imperfections, with flaws," says Michael Radelet, a University of Florida sociology professor and death penalty expert who wrote a book on the Ford case. "It leaves it open to great arbitrariness."
Hall's case, which has been tossed back and forth between courts as jurors and judges struggle to grapple with his mental condition, cuts to the heart of the system's many problems.
His original 1978 death sentence was overturned when a divided Florida Supreme Court concluded that his jury did not have ample opportunity to consider his brutal childhood or limited intellect. But, even when jurors and a judge reconsidered his sentence in 1990, taking into account Hall's abuse, impoverished childhood, brain damage and longstanding retardation, he once again received a death sentence. A series of experts testified that Hall was retarded, with an IQ that one doctor measured at 60. One expert said he had the intellect of a 13-year-old.
The new jury voted 8-4 to recommend death. Circuit Judge Richard Tombrink acknowledged that Hall was retarded but sentenced him to die nevertheless.
"The Court finds that the greater weight of the evidence would support a finding that the defendant may have lacked some ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law," Tombrink wrote in his sentencing order. "However, the Court is not able to determine to what extent the defendant's abilities to appreciate or to conform were impaired."
The judge went even further in denying a later appeal, saying there is "no doubt" that Hall suffers from "serious mental difficulties, is probably somewhat retarded, and certainly has learning difficulties and a speech impairment."
In other words, Tombrink admitted Hall was mentally deficient but still chose to condemn him.
Most recently, in July, the Florida Supreme Court denied an appeal by Hall's lawyers, who claimed he was not competent to be resentenced in 1990. The ruling was unanimous, but Justice Harry Lee Anstead wrote a special opinion lamenting Hall's fate, saying that "although it appears the majority opinion is technically correct," he believes that executing a mentally retarded inmate violates the state Constitution's ban on cruel and unusual punishment. Justice Barbara Pariente joined Anstead, who quoted at length a 1993 dissenting opinion by then-Justice Rosemary Barkett objecting to the denial of another Hall appeal.
Barkett, who went on to become a federal judge, wrote that the sentencing judge clearly did not understand the nature of mental retardation. To execute a retarded person, she wrote, is cruel and unusual.
"This case is illustrative of far too many cases we see in this Court; horrible crimes are repeatedly committed by those who endure sickening abuse and deprivation as children," Barkett wrote. "Many, like Freddie Lee Hall, are also mentally retarded, and suffer particularly severe abuse because their parents do not understand the nature of retardation.
"The connection between an individual's childhood and his or her later ability to function as a productive member of society is obvious to those of us who routinely review criminal cases, and while a tragic childhood and mental retardation do not "excuse' later criminal behavior, they do reflect on an individual's culpability."
But not everyone sees an injustice in Hall's case.
Gov. Jeb Bush cited Hall in a recent e-mail as an example of what's right with the state's justice system. Bush's note, indicative of the response of many Florida lawmakers over the years, reveals that, like Tombrink, he does not appreciate the effects of mental health.
Further, he endorses the death penalty as a form of retribution for the loved ones of murder victims.
"I agree with the court that juries should be allowed to consider the heinous nature of the crime, the impact on the victim's friends, loved ones, and community as a whole when considering the appropriate sentence," Bush wrote. "In short, I feel that the law in Florida properly allows juries and sentencing judges to consider diminished capacity as a mitigating factor and to give it the weight they deem appropriate in light of all the circumstances surrounding the murder."
Unfortunately, mental health questions have proved too complicated for juries and judges to handle appropriately. The mound of often conflicting medical evidence puts fairness out of reach.
"This is making God-like decisions without God-like skills," says Radelet, the UF sociologist. "Our record is such that the question is not so much who deserves to die but who deserves to kill."
In determining who should live and who should die, no players are more central than the medical experts who educate jurors and judges about an inmate's mental health. Far too often the state hires psychologists and psychiatrists who simply rubber-stamp death.
Thomas Provenzano, convicted 15 years ago of killing an Orange County court bailiff during a bizarre courtroom shootout, has been diagnosed as a paranoid schizophrenic who believes that he must die because he is Jesus Christ. Patricia Fleming, a Wyoming psychologist hired by the defense who has known him for a decade, examined Provenzano for 15 hours and found him unfit. She noted his description of a "legion of bad spirits that possess you or me." When his lawyers invoked the state's competency law, arguing that Provenzano's problems have been exacerbated on death row, the governor appointed 3 experts who interviewed him for 80 minutes. Their conclusion: Provenzano is faking his illness. They based their findings largely on prison guards, who told them that Provenzano seemed normal.
In the case of Alvin Ford, who Radelet said "couldn't utter a complete sentence," a panel of state-appointed experts met with him for less than 30 minutes and concluded he was competent for execution.
In 1984, a panel of state-paid doctors examined inmate Arthur Frederick Goode in private and then concluded, in secret letters to the governor, that he was competent to be executed. Such a cloaked process -- with the governor having the final say -- was allowed under the law at that time. Defense lawyers argued that the exam took less than 30 minutes and that the doctors ignored Goode's well-documented history of retardation.Goode, after all, committed murder in Florida after escaping from a mental hospital in Maryland.
Hoping to convince the Florida Supreme Court that Goode should be spared, the defense hired Dr. George W. Barnard, a veteran University of Florida psychiatrist and founder of his department's forensics division. Barnard examined Goode, noting that the inmate had a difficult time focusing on the questions at hand. Barnard reported that Goode had "no show of feeling" when asked about execution, suggesting that Goode did not have an emotional understanding of his fate. The doctor concluded that Goode had a "mental disorder of longstanding" and that in many ways he "is as a small child who can say words which seem to make some sense, but in reality he lacks appreciation of their meaning."
The Florida Supreme Court denied the appeal, and Goode was electrocuted.
Dr. Barnard was so troubled by the process to determine inmates' competency for execution -- including Goode's case -- that he eventually refused to serve on panels appointed by the governor to examine inmates.
"I've seen (state-appointed psychiatrists) come into the prison, take 15 minutes and issue an opinion on that little bit of examination," Barnard said recently. "That was not fair."
What the state tried to do to Danny Doyle is even more reprehensible.
Experts believe that Doyle, convicted of raping and murdering Pamela Kipp in 1981, has a mental age of about 6 or 7 and an IQ of less than 65. A Broward County school psychologist who worked during Doyle's years in school there testified that Doyle was a "mentally retarded child who was unable to make any headway" in his classes.
Prosecutors cited their own mental health experts to prove that Doyle was not retarded. As it turns out, Doyle's lawyers would later point out, one of the doctors hired by the state had previously served 6 years in federal prison for manslaughter, assault with a dangerous weapon and escape. Doyle's lawyers also produced proof that the same doctor was a prominent neo-Nazi and white supremacist who wrote an article for the NAAWP News, a publication of the National Association for the Advancement of White People.
In court pleadings, Doyle's attorneys quoted a Soldier Without Fortune article in which Dr. John C. McClure describes why he enjoys being an expert witness: "Sure, I love showing inkblots to dirtbags and trying to figure out why they like to rape and kill. ... Granted, I do love matching wits with the lawyers -- especially when they're paying for it.
But I don't make a net contribution to justice. All I'm doing is selling jargon on the witness stand for a hundred and twenty-five dollars an hour."
In 1992, when Doyle's plea for mercy reached Gov. Chiles and the Cabinet, sitting as the state's clemency board, then-Insurance Commissioner Tom Gallagher worked quietly behind the scenes to craft a creative solution that would get the state out of its bind. They agreed to formally delay any action on Doyle until 2020, all but guaranteeing he would not be executed.
In sweeping Doyle's case under the rug, the governor and Cabinet all but acknowledged Florida's failure to handle the issue. Former American Bar Association President Talbot "Sandy" D'Alemberte, now the president of Florida State University, saw that failure up close. As the lawyer who represented Doyle before the governor and Cabinet, D'Alemberte researched the inmate's medical condition and documented the checkered histories of the state-appointed experts.
Says D'Alemberte: "It was all quite preposterous."
Given the political realities in Tallahassee, thereis little hope of the law changing any time soon.
The Florida legislature is likely to schedule a special session on the death penalty next year. Lawmakers want to adopt lethal injection as the method of execution, in case the U.S. Supreme Court declares the electric chair unconstitutional. And Gov. Bush says he wants to streamline the appeals of death row inmates. Nobody has suggested taking up the issue of the insane or retarded.
When the death penalty is on the agenda in the Florida legislature, civility is checked at Tallahassee city limits. The rabid views of lawmakers such as state Rep. Howard Futch, R-Indialantic, tend to carry the day. Responding to the notion that Thomas Provenzano's mental illness leads him to believe that he is Jesus Christ, Futch quipped in a committee meeting that the state should crucify him. "I'd make him a cross, and we could take it out there to Starke and nail him up," Futch said.
Politicians nationally have treated the issue with equal grace. Many Americans remember then-Arkansas Gov. Bill Clinton's decision in 1992 to return home from the New Hampshire campaign trail to preside over the execution of Ricky Ray Rector. Rector was so retarded, and so misunderstood the nature of his punishment, that he told his lawyers as he left his cell for the death chamber that he was saving the dessert -- a slice of pecan pie -- from his final meal to eat before bed that night. In Texas, the case of a paranoid schizophrenic inmate whose illness led him to commit murder, and now faces death, could put Gov. George W. Bush in a similarly uncomfortable position.
Although other states have passed laws against executing the mentally retarded -- generally drawing the line at an IQ of 70 and requiring that a person have been diagnosed before the age of 18 -- Florida lawmakers have repeatedly stymied such efforts here. The Florida Association for Retarded Citizens gave up the cause after failing for 3 straight sessions in the early 1990s.
"The line that's always given back to us, and it's always in a patronizing, condescending manner from proponents of the death penalty, is that we poor people are being used by the folks who want to do away with the death penalty," said Frank Mann, the ARC lobbyist. "That's absurd. Many of us support the death penalty."
As a legislator in the 1970s, Mann voted to reinstate the death penalty in Florida.
The expert who helped write the laws in the states that have adopted bans on the execution of retarded inmates, University of New Mexico law professor Jim Ellis, says Florida lawmakers have a special attachment to the death penalty that blocks a thoughtful debate. Ellis, a former president of the American Association on Mental Retardation, argues that capital punishment is generally reserved for the 1 % or 2 % of murderers who deserve the most blame. Meanwhile, he says, people with mental retardation are in the bottom 2.5 % of the human population in terms of intelligence.
"While that's our national consensus, the system doesn't work that way," Ellis said.
Advocates are hopeful that the release in a few weeks of the Hollywood film The Green Mile, based on a 6-part serial by Stephen King about the relationship between a prison guard and an inmate with the mental capacity of a child, will raise public awareness and trigger some political support.
But if there is any hope for justice, it may have to come in the courts. The best hope may come in the Texas case of Johnny Paul Penry.
It was Penry's case that first brought the issue to the attention of the U.S. Supreme Court 10 years ago. Penry, who has the mental capacity of a 7-year-old, was convicted in 1980 of murder. His death sentence was eventually overturned by a sharply divided Supreme Court. Writing for the 5-4 majority, Justice Sandra Day O'Connor wrote that Texas law did not allow the jury to fully consider Penry's mental state and abuse history as it weighed his case. But the court stopped short of finding that executing the mentally retarded would violate the Constitution's Eighth Amendment prohibition on cruel and unusual punishment.
"There is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment," O'Connor wrote.
At the time, just 2 states -- Georgia and Maryland -- expressly prohibited the execution of the mentally retarded. But now some advocates think our society has evolved enough to convince the court that there is a new national standard of decency. Penry, who was resentenced to death, is preparing another appeal in federal courts that could wind up in the Supreme Court once again. Lawyers from California to Florida to Great Britain are filing "friend of the court" briefs on behalf of Penry, hoping he will once again set precedent.
"We've argued that there are international standards, that other countries have standards different than ours," said Billy Edwards, a young lawyer recently hired by the Florida Capital Collateral Representative's office in Tallahassee to focus on mental health issues.
He is helping to prepare a brief in the Penry case. "Now, there's definitely a national consensus."
It all seems rather obvious. For years, the same public opinion polls that show a wide majority of voters supporting capital punishment also reveal a strong opposition to executing those with mental impairments -- a distaste for killing adults who are the functional equivalent of children.
This is not a plea to set Freddie Lee Hall free. It is merely a call for decency.

Dallas Morning News - August 10, 1998

Johnny Paul Penry has spent nearly 20 years on death row.

During that time, he's learned to read a few words but can't write a letter on his own. Mr. Penry has been found to be mentally retarded, and that alone should spare him from execution for raping and fatally stabbing a 22-year-old woman, supporters say.

The U.S. Supreme Court heard his case 9 years ago and ruled that capital punishment for the retarded was not cruel and unusual.

However, a dozen states - including Nebraska this spring - have banned the practice. Legislators in Texas and several other states say they are considering joining the trend and introducing bills to stop executing the retarded.

The American Association on Mental Retardation strongly opposes capital punishment for the retarded, saying they lack the mental capacity to warrant society's harshest penalty. The United Nations has also condemned the practice.

"I would say that a person with my condition don't deserve to be executed," Mr. Penry, 42, said in a prison interview. "I'm much slower than other people in a lot of ways."

But family members of his victim, Pamela Moseley Carpenter of Livingston in East Texas, say he should have been executed long ago for the 1979 murder. Mr. Penry, who never finished 1st grade and spent years in state mental facilities because of learning difficulties, confessed to the killing.

"He knew exactly what he was doing," said Danny Moseley, one of Ms. Carpenter's brothers. "I think he's worked the system about as far as he can. He'll get it (the death penalty) sooner or later."

Some psychologists and mental health advocates agree that the retarded shouldn't be exempt from the death penalty.

"I do not see how we can legitimately demand equal rights for citizens with mental retardation without acknowledging...their responsibilities for their conduct," wrote Dr. Robert Edgerton of the University of California at Los Angeles in the American Journal on Mental Retardation.

Nebraska legislators recently disagreed. They voted overwhelmingly in April to forbid executing the retarded - defined through testing as those with an IQ of 70 or less.

"I got involved in this because I felt it was wrong to apply the death penalty to people who were not mentally capable of understanding their actions," said Nebraska state Sen. Don Wesely, who introduced the bill.

An IQ of 70 or less has long been considered the standard for retardation, but some people say IQ testing is too unreliable to use in deciding whether a person should be executed.

Mental health advocates say the retarded often don't understand the difference between right and wrong and may confess to a crime they didn't commit.

But some legislators who don't want to exempt retarded people from the death penalty worry that many defendants would claim retardation to extend their appeals.

"As anyone else, I would like to put our tax dollars to good use and not on frivolous appeals," said state Sen. Kate Witek of Nebraska, 1 of only 2 legislators there to oppose the recent bill.

Anytime you change a statute, it can be taken advantage of."

Besides Nebraska, other states that have banned executing the retarded include Arkansas, New Mexico and Colorado.

In Texas, a bill to ban capital punishment for the retarded was defeated in 1989. But its co-author said he plans to reintroduce it when the legislature reconvenes in January.

"I think we have to be a much more humane society than to execute the mentally retarded," said state Rep. Juan Hinojosa, D-McAllen, who added that he supports the death penalty in general.

The 1st state to end the execution of the retarded was Georgia in 1988. The ban followed the electrocution of Jerome Bowden, 33, for the fatal beating of a 55-year-old woman a decade earlier. He had scored as low as 59 on IQ tests.

The president of the Association of Retarded Citizens in Georgia, who interviewed Mr. Bowden, wrote that he had "no real concept of death."

After he was strapped into the electric chair, he was given a chance to speak and said, "I would like to thank the people of this institution."

Opponents of executing the retarded often cite the case of 32-year-old Morris Mason, who was put to death in Virginia in 1985 for killing a 72-year-old woman. Before he was led to the electric chair, he reportedly asked someone to tell another inmate that he would be right back and "show him I can play basketball as good as he can."

Texas has executed more mentally retarded people - 5 - than any other state since the death penalty was reinstated in 1976, according to the Washington-based Death Penalty Information Center. Of the 472 people executed in the country since then, 33 have been mentally retarded, it says.

Last year, Terry Washington was put to death in Texas for fatally stabbing a College Station woman in 1987 at a diner where they worked.

Besides mental retardation, he was found to have fetal alcohol syndrome as a result of his mother's heavy drinking. He had been described as having the mental capacity of a 7-year-old.

A psychologist who evaluated Mr. Washington denounced his execution. Mr. Washington was unable to "rationally or factually understand the nature of his trial proceedings or effectively consult with his counsel in preparing his defense," wrote Dr. Allen Childs of the Vernon State Hospital.

Mr. Washington's IQ was tested in the mid-50s to mid-60s, about the same as Mr. Penry.

Mr. Penry can sustain a conversation and initially conceal his retardation, said Dr. Randall Price of the University of Texas Southwestern Medical Center at Dallas. Dr. Price evaluated Mr. Penry in 1990, shortly before he was convicted a 2nd time and again given the death penalty.

"He looks and acts pretty normal," Dr. Price said. "He tries to compensate for his lack of intelligence, and he can kind of fool you."

But he said his retardation becomes evident if he's challenged.

"I could ask him to repeat 3 numbers after me, and he could do that," Dr. Price said. "But he couldn't repeat 4. He tried very hard on the test I gave him. I saw no evidence he was trying to do poorly, even though in that situation sometimes a defendant will actually try to do poorly because it might help their case."

A psychologist who testified for the state reached a different conclusion about Mr. Penry's mental state. Dr. Walter Quijano of Conroe said that Mr. Penry is not retarded but has "borderline intelligence." He also said Mr. Penry's "adaptive, day-to-day skills" are in the normal range.

"He could plan a crime, execute a crime, even have a cover-up technique," said Dr. Quijano, who was chief psychologist for the Texas prison system from 1983 to 1989. "You don't call a person retarded unless their adaptive skills are also very poor. He's not as retarded as the defense wanted to portray him."

Jack Moseley, the father of Mr. Penry's victim, agrees. The slaying attracted additional publicity because one of Ms. Carpenter's brothers is former National Football League star Mark Moseley, who played for the Washington Redskins.

"He don't deserve to live, that boy," Jack Moseley said of Mr. Penry.
"He might be a slow thinker, but he ain't mentally retarded. He's got smart lawyers and people against the death penalty who are going to try everything and work it to the hilt."

Mr. Penry met Ms. Carpenter when he helped deliver some appliances to her house, police said. He returned there several days later and forced his way in.

Besides his confession, police said, Ms. Carpenter gave a description of Mr. Penry shortly before she died in the emergency room. Authorities also found a bloody shirt at his house. He killed Ms. Carpenter by stabbing her in the chest with scissors that she was using to make Halloween costumesfor her niece, police said.

3 months before her death Oct. 25, 1979, Mr. Penry was paroled from prison on a rape conviction.

"That woman deserves to live," Mr. Penry said. "I wish I could bring her back. I am very sad" for her family.

He said he hopes his appeal is successful and he avoids the death penalty. He was scheduled to die May 13 but received a stay.

Mr. Penry has lawyers working on his case in Huntsville and New York. Because of the Supreme Court's ruling, his case is frequently cited in literature.

"Executing me ain't going to solve nothing," Mr. Penry said. "It ain't going to bring her back. I feel it's wrong to execute anybody that don't know what's going on. I surely don't know what's going on."

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