"It gives us the appearance of being barbaric," Texas state Sen. Rodney Ellis proclaimed after Texas Gov. Rick Perry vetoed his bill to ban the execution of mentally retarded killers. Anti-death penalty Californians shouldn't feel too superior: A day after the Perry veto in Texas, the Democratic Assembly in Sacramento buried a similar bill by Assemblywoman Dion Aroner, D-Berkeley.
Liberal commentators are aghast. Say "mentally retarded death-row inmate," and they refer to the retarded inmate executed when Bill Clinton was governor of Arkansas -- the inmate who asked to save the desert from his last meal for a snack after his execution. Or the inmate who says he believes in Santa Claus. Get it? Retarded killer equals innocent puppy, which makes the issue a contest between enlightened good people and barbarians.
It isn't that simple. Ask Ken Anderson, district attorney for Texas' Williamson County. "There's not enough money in the state of Texas to pay me to seek the death penalty against a mentally retarded person," he explained. "I would find such an event to be abhorrent." (I, too, would find it abhorrent to sentence to death a man who doesn't understand what an execution is.)
Still, Anderson opposed the Ellis bill. The public thinks that mentally retarded means someone "carrying the torch for the Special Olympics" who may not be competent to stand trial, he said.
People don't think of Terry Washington who, Perry wrote of his veto, "waited until he and his restaurant manager were alone. He cut the telephone lines, tied her up, and stabbed her 87 times. These calculated actions contradict claims of mental retardation."
Psychologist Tim Derning, who advised Aroner on the California bill, argues that you can't fake mental retardation. While the Aroner bill does not specify what mental retardation is, psychologists use a working diagnostic definition that entails an IQ generally less than 70, the demonstrated inability for a person to cope with two of 10 aspects of everyday life (say communication or community) and evidence of retardation before age 21.
Sounds good. But the New York-based Human Rights Watch reports that Oliver Cruz, a retarded inmate executed in Texas, was tested with an IQ of 64. But as Perry noted, Cruz, who kidnapped, raped and killed a woman, scored in the mid 80s on an IQ test after his sentencing.
"If that bill had passed, there would have been a cottage industry of people giving IQ tests which you, too, could fail," Anderson noted. Imagine the judge-shopping and the shrink-shopping.
Imagine the flood of appeals by death-row inmates who have exhausted other appeals.
Then, there's the likely follow-up legislation. "I don't believe that people with mental retardation as defined in the bill can participate in their own defense," Aroner told me. If they can't participate in their defense, the law says they can't be tried. And if they can't be tried for murder, they can't be tried for other crimes, either.
Aroner's adviser Derning believes that some retarded defendants are competent for trial, others are not. The stereotype about retarded people is that they can't really do anything, he said. What you find in capital cases is that their IQ's fall between 60 and 75," he said. "They're not severely retarded."
Derning cautioned that many "people with mental retardation spend a lifetime trying to hide it." Some are so anxious to please that they say things that aren't true.
New York Times columnist Bob Herbert writes about a retarded man who was sentenced to death after he admitted to raping and killing a young woman in 1983. His sentence was commuted to life and later DNA evidence cleared him of the crime. It seems Earl Washington Jr. confessed because he was eager to please the police when they interrogated him. The story shows the need to handle cases with mentally retarded defendants with extra care.
But how many Earl Washingtons are there? Aroner could not name one mentally retarded inmate on California's Death Row. Department of Corrections spokesman Russ Heimerich said there are no recognized mentally retarded inmates on Death Row, although one inmate is seeking such recognition. Derning, however, argues that statistically there must be retarded inmates among a Death-Row population just shy of 600. (He refused to say whether he represents any inmates making the claim.)
Any bill banning executions for mentally retarded inmates sounds noble and clean. Who could oppose it? But if voters believe that the Ellis bill in Texas or the Aroner bill in California would be used judiciously and sparingly, if they believe these bills wouldn't turn into a "why-not" appeal for ruthless killers, well, they probably also believe in Santa Claus.