Mental Retardation News and Developments: 2002 - 1999

Tennessee Supreme Court Finds Execution of Mentally Retarded Unconstitutional

The Tennessee Supreme Court ruled that executing individuals with mental retardation is cruel and unusual punishment prohibited by both the Tennessee and U.S. Constitutions. ''We conclude that there is compelling evidence that the execution of mentally retarded individuals violates the evolving standards of decency that mark the progress of a maturing society both nationally and in the state,'' wrote Justice Riley Anderson in the majority opinion. In addition, the court held, ''We also have determined that the execution of any mentally retarded individuals, who by definition have significantly sub-average intelligence functioning and deficits in adaptive behavior, is grossly disproportionate and serves no valid penological purpose.''
Although the state passed a law to prohibit such executions in 1990, the statute did not apply retroactively. (Associated Press, 12/4/01) The U.S. Supreme Court will address the constitutionality of executing those with mental retardation this term.

North Carolina Governor Signs Mental Retardation Bill

Gov. Michael Easley signed into law a bill that forbids the execution of defendants with mental retardation in North Carolina.Capital defendants may seek to have themselves declared mentally retarded in a pre-trial hearing if the prosecutor consents, or after their trial. The post-trial determination requires a unanimous jury verdict. To be ruled mentally retarded, defendants must score 70 or below on an IQ test and must prove they had intellectual and adaptive disabilities before age 18. North Carolina becomes the 18th state to ban the execution of the mentally retarded, in addition to the 12 states that ban the death penalty completely.
The law also applies to those currently on death row. According to the NY Times, "North Carolina officials plan to advise the [U.S. Supreme] court on Monday of the new legislation and arguge that the McCarver case is therefore moot." The Court decided to hear the case of Ernest McCarver, a North Carolina death row inmate with mental retardation, to determine the constitutionality of executing those with mental retardation. (N.Y. Times 8/4/01, Wash. Post 8/5/01).

Briefs Filed in McCarver Case Urge Supreme Court to End Executions of the Mentally Retarded

Several briefs by prominent national and international groups have been filed in the pending U.S. Supreme Court case of McCarver v. North Carolina (see below), involving a death row inmate in North Carolina with mental retardation. In its next term, the Court will consider whether executing those with mental retardation offends society's "evolving standards of decency" and thus violates the Eighth Amendment's ban on cruel and unusual punishment. Among those filing briefs in support of McCarver are: nine veterans of the American Foreign Service, (see below) the European Union, the American Bar Association, the U.S. Catholic Conference, the American Association on Mental Retardation, the American Psychological Association, and the American Civil Liberties Union. (Supreme Court Docket, 7/10/01)
Read the European Union's amicus brief (located under "Action on U.S. Death Cases"), and the former American Foreign Servicemen's brief. See also, Supreme Court.

Missouri Bans Execution of Mentally Retarded

Missouri became the 16th state to ban the execution of inmates with mental retardation. The Missouri bill, signed by Gov. Bob Holden on July 2, but not effective until August 28, is not retroactive to those currently on death row. However, the governor indicated he would consider commuting the death sentences of those who meet the law's definition for retardation. (St. Louis Post-Dispatch, AP, 7/2/01).

Connecticut Governor Signs Bill to Ban Execution of the Mentally Retarded

In Connecticut, Governor John Rowland signed a bill to prohibit the execution of those with mental retardation. The bill, signed on July 6th, also provides for a study of the state's death penalty system. The study will examine whether there are disparities in prosecutors' decisions to seek the death penalty based on a defendant's or victim's race or economic status. The bill is effective as of July 1, 2001. (CT Public Act No, 01-151)

Texas Governor Vetoes Legislation to Ban Execution of those with Mental Retardation

A bill to prohibit the execution of the mentally retarded in Texas was vetoed by Governor Rick Perry on June 17. The bill would have prohibited the death penalty if jurors determine that the defendant is mentally retarded. In vetoing the legislation, Perry stated that although there is no statutory prohibition, "we do not execute mentally retarded murderers [in Texas] today." Without a legislative ban, those with mental retardation can be sentenced to death because jurors are only required to consider a defendant's mental capacity as a mitigating factor during sentencing.
Legislation similar to that rejected by Perry was signed last week by Florida Governor Jeb Bush, and is still under consideration by the governors in Connecticut and Missouri. (Washington Post, 6/18/01)

Florida Governor Signs Bill to Ban Execution of Mentally Retarded

Governor Jeb Bush signed a bill to prohibit the imposition of the death penalty on a defendant who suffers from mental retardation. The bill - which unanimously passed the Florida Senate in March and was only one vote short of passing the House unanimously in May - does not contain a set IQ level, but uses a definition that considers intellectual functioning and behavior. Under the legislation, a defendant, who has already been convicted and sentenced to death, can petition the trial judge to appoint mental health experts to determine whether he or she is mentally retarded. Florida is the second state this year to ban the execution of defendants with mental retardation, bringing the total number of states prohibiting such executions to 15, plus the federal government. (New York Times, 6/13/01)

Former U.S. Diplomats Say Executing Mentally Retarded Hurts Foreign Relations

Nine veterans of the American Foreign Service filed a brief with the U.S. Supreme Court on behalf of Ernest McCarver, the North Carolina death row inmate whose case will be heard later this year to determine the constitutionality of executing those with mental retardation. The former diplomats, whose combined service in 8 countries totals nearly 200 years, wrote that executing those with mental retardation "will strain diplomatic relations with close American allies, provide diplomatic ammunition to countries with demonstrably worse human rights records, increase U.S. diplomatic isolation, and impair other United States foreign policy interests." The brief notes that in meetings with U.S. allies, American officials often find themselves having to answer for the United States' use of capital punishment before being able to discuss agenda items. (New York Times, 6/10/01) Read the former American Foreign Servicemen's brief

Supreme Court Overturns Penry Sentence

The U.S. Supreme Court today handed down a decision in Penry v. Johnson (00-6677), holding that a sentencing jury considering the death penalty must be given proper instructions about how to weigh mental retardation as a mitigating factor. The decision overturned the death sentence of John Paul Penry, a Texas death row inmate suffering from mental retardation, and sent the case back to the trial court for re-sentencing. The Supreme Court first heard Penry's case in 1989 and held that, although executing those with mental retardation was not a violation of the Eighth Amendment, Penry's rights were nevertheless violated because the sentencing jury was not properly allowed to take his mental capacity into account. At retrial, Penry was again sentenced to death. (CNN.com, 6/4/01) Penry was sentenced to death a third time in 2002. For more information about Penry's case and about executing those with mental retardation, read Amnesty International's report, "Beyond Reason - The imminent execution of John Paul Penry" or visit Human Rights Watch's Web site. See also, Supreme Court
Drawing by John Paul Penry

Arizona Governor Signs Law Prohibiting the Execution of the Mentally Retarded

On April 26, 2001, Arizona Governor Jane Hull signed legislation to ban the state from seeking the death penalty for persons with mental retardation. The legislation also prohibits the execution of defendants with mental retardation who are already on death row. Arizona is now the 14th state to forbid such executions.

U.S. Supreme Court to Decide Whether Executing Inmates with Mental Retardation is "Cruel and Unusual"

The U.S. Supreme Court agreed to hear the case of Ernest McCarver, a death row inmate in North Carolina with mental retardation. The Court will consider whether executing those with mental retardation offends society's "evolving standards of decency" and thus violates the Eighth Amendment's ban on cruel and unusual punishment. McCarver's appeal cites "society's newly evolved consensus against executing the mentally retarded" as the basis for prohibiting such executions. (Associated Press, 3/26/01) Read McCarver's brief.
In 1989, the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment because a "national consensus" had not developed against executing those with mental retardation. At the time, only two states prohibited such executions. Since then, 16 more states and the federal government have enacted laws prohibiting the execution of the mentally retarded, and legislation regarding the mentally retarded is pending in at least 8 other states. On March 27, the U.S. Supreme Court heard Penry v. Johnson, a case involving jury instructions and the execution of a Texas death row inmate with mental retardation.

 The U.S. Supreme Court halted the execution of Antonio Richardson, a mentally retarded juvenile offender scheduled to be executed in Missouri on March 7, 2001. The Court granted the reprieve to give the Justices more time to consider whether to hear his case. The Supreme Court heard Penry v. Johnson, a case related to mental retardation and the death penalty on March 27. (St. Louis Post-Dispatch 3/7/01 )

Mentally Retarded Inmate Facing Execution

Thomas Nevius, who suffers from mental retardation and brain damage, and who functions intellectually, and in other ways, as a child, ranks in the bottom 1 to 2% of the population in terms of mental capacity. Yet Nevius is facing execution in Nevada and his attorneys have now applied for executive clemency.
Nevius was convicted and sentenced to death for a 1980 burglary and murder committed with three other defendants. He was the only one of the four to receive the death penalty. Two co-perpetrators received life sentences and the third, his half-brother David Nevius, received probation for testifying against Thomas. Nevius' lead defense attorney had never tried a capital case before and failed to investigate or discover evidence of Nevius' mental retardation. At trial, prosecutors portrayed Nevius as the ringleader and the defense failed to present to the jury Nevius' mental retardation, passivity, and character as a follower rather than a leader, due to his mental limitations. Six jurors have since come forward and stated that, had they known of Nevius' mental retardation and brain damage, they would not have sentenced him to death. (See Application for Executive Clemency on Behalf of Thomas Nevius, 1/17/01) In an unusual move, the governor of Nevada has granted a formal clemency hearing on April 11.
For more information, read Amnesty International's report on Thomas Nevius.

A Story of Mental Retardation and the Death Penalty; Accomplice Served Less than 6 Years

Lorenza Norwood, whose IQ measures in the 60s, was sentenced to death for the murder of a convenience store clerk in 1993 in North Carolina. Norwood's accomplice, Herbert Joyner, refused to talk to the police, hired his own lawyer, accepted a plea, and was sentenced to 15 years imprisonment, of which he served less than six. Norwood, on the other hand, was defended by court-appointed attorneys after having already talked to the police.
Norwood was born two months pre-mature. He failed the first grade. When he was 30, he was out of work. When he came up 20 cents short in buying a bottle of wine, he got into an argument with a store clerk. The clerk hit him with a baseball bat and chased him from the store. Later, Norwood returned to the store with Joyner, a man with a long criminal record who urged Norwood to take revenge. The clerk died from a fire started by Norwood and Joyner.
The U.S. Supreme Court has ruled that the death penalty should be reserved for the most heinous crimes and the most culpable criminals. "To permit the execution of a person with mental retardation," says Jim Ellis, a national expert on mental retardation and a professor at the University of New Mexico, "requires concluding that such an individual is both in the bottom 2 percent of the population in intelligence and also in the top 1 or 2 percent of the population in his appreciation and understanding of the wrongfulness of his actions." (Charlotte Observer, 9/14/00)

Clarence Victor, 66, was taken off Nebraska's death row, saved by a 1998 law that bans executions of the mentally retarded. Victor, who has an IQ of 65, had his death sentence reduced to life in prison because the Nebraska law states that anyone with an IQ below 70 cannot be executed. The state defines those with mental retardation as having "significantly subaverage intellectual functioning as well as deficits in adaptive behavior." State Senator Ernie Chambers, who sponsored the bill said, "This law should not have been necessary because no civilized, mature society would ever entertain the possibility of executing anybody who was mentally retarded." (Associated Press 7/1/99).