News

Unanimous California Ruling Allows Broad Interpretation of Mental Retardation

The California Supreme Court has unanimously ruled that a defendant may be spared the death penalty because he is mentally deficient in one area, even if his IQ score falls in the normal range. The decision gives judges broader discretion to spare defendants from execution for reasons of mental impairment and clarifies a 2005 ruling that allowed those on death row to challenge their sentences on the grounds of mental retardation. The court ruled that trial courts may give greater weight to certain kinds of evidence than others because the legal definition of mental retardation does not rely on a fixed IQ score.

The California Supreme Court issued the ruling as it rejected a lower court decision that "full scale" IQ scores - composites of tests of various mental faculties - are the best way to measure intellectual functioning. The Justices ruled that courts may give greater weight to one measurement of IQ over another and that the best way to measure intellectual functioning may vary from case to case. It stated that the law should not dictate how to measure intellectual functioning.


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Virginia Man Pleads Guilty to Crime that Sent an Innocent Man to Death Row

Kenneth Tinsley pleaded guilty on April 11 to the 1982 rape and capital murder of a Culpeper woman - a crime for which another man, Earl Washington Jr., spent nearly a decade on death row and was nearly executed.  Tinsley admitted to the rape of Rebecca Lynn Williams, a 19-year-old mother of 3, and conceded that DNA and other evidence could have proved his guilt of her murder.

He was sentenced to 2 consecutive life terms. Earl Washington, who is mentally retarded, had originally been convicted of the same crime and was sentenced to death before DNA evidence convinced Virginia's governor that he was innocent.  Recently, Virginia tentatively agreed to pay $1.9 million to Washington in compensation.

Tinsley, who is already serving 2 life terms for another rape in Virginia, sat in a wheelchair as he told the judge, "I'm sorry for everything I did.  The prosecutor said that he hoped the plea agreement would bring closure to the victim's family and to the community.


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Possibly Mentally Retarded Man to be Executed in Texas, Where Almost All 2007 Executions Have Occurred

If James Lee Clark is executed in Texas on April 11, he will be the 12th Texas inmate executed out of 13 executions nationwide in 2007.  According to some psychological tests, Clark has an IQ of 68 or lower, which is one of the common criteria for mental retardation.  Clark's defense team has asked the Texas Board of Pardons and Paroles and Texas Governor Rick Perry to halt the execution because of the likelihood that Clark suffers from mental retardation.


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Articles - Mental Illness and Retardation
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Editorials - Mental Illness and Retardation

Editorials Praise Virginia Governor's Decision to Delay Walton Execution

Recent editorials in The Washington Post and Roanoke Times praised Virginia Governor Tim Kaine's decision to delay the execution of Percy Walton in order to ensure that he is sane enough to execute. The papers noted that Kaine's decision, which drew criticism from some death penalty advocates, demonstrated "competence in lawfully applying the death penalty" and was "courageous."

The Washington Post noted:

Virginia Gov. Timothy M. Kaine (D), a devout Catholic and principled opponent of the death penalty, threaded the needle on that issue in his race for office last year. In a broadly pro-capital-punishment state, he said forthrightly that he had long-standing moral and religious objections to state executions. Yet he also pledged to carry out the death sentence as a function of his office and in pursuance of state law. To do otherwise, he said, would be to disregard his official oath -- except in instances when a convict's guilt was in question.

Now, with a condemned man's life on the line, Mr. Kaine has stepped in; with scarcely an hour to spare last week, he postponed for six months an execution pending an inquiry into the inmate's mental state. Predictably, Mr. Kaine's pro-death-penalty opponents howled that he had broken a campaign promise. It's a good bet they haven't read the case record in question; Mr. Kaine clearly has.

The record on convicted killer Percy Levar Walton leaves no doubt about his guilt; in 1996, a month past his 18th birthday, he murdered three people, including an elderly couple, in the Southside city of Danville. The record of his competency to face the death sentence is another matter.

Mr. Walton's case is complex. An array of psychiatrists have reached differing conclusions about his mental capacity and ability to grasp that he may be put to death. That's important, as the U.S. Supreme Court has determined that a condemned man is fit for execution only if he understands that he's been sentenced to death and the reason.

There is evidence that Mr. Walton's mental ability and health are declining. A decade ago he scored 90 on an IQ test -- below average but not severely so. But in recent years he has twice scored under 70, the level below which people are considered mentally retarded. More to the point, he has sometimes seemed cloudy on what the death penalty means, telling one psychiatrist that after his execution he expected to have access to a telephone, a motorcycle and a job at Burger King. Ruling on Mr. Walton's case in March, the U.S. Court of Appeals for the 4th Circuit, perhaps the nation's most conservative federal court, split 7 to 6 in deciding that he is mentally fit to be executed.

Mr. Kaine has already shown that he takes his campaign promises seriously; in April he denied clemency and allowed a condemned man to be executed. But he is empowered by Virginia's constitution to review scheduled executions one by one, and he is duty-bound to take that responsibility seriously. Virginia governors have granted clemency in seven cases since the Supreme Court reinstituted the death penalty in 1976. Mr. Kaine is right, and courageous, to order a full review before passing a final judgment on Mr. Walton.

(Washington Post, June 11, 2006)

The Roanoke Times stated:

Whether Walton is smart enough or sane enough to understand that Virginia last week was hours away from killing him for those crimes is very much in doubt. Gov. Tim Kaine made the right call when he stayed Walton's execution for six months, time enough to determine the degree of his mental retardation and mental illness.

Before Virginia pumps lethal chemicals into this killer's veins, the state should be sure Walton understands exactly what will happen to him and why the commonwealth exacts the ultimate retribution. The U.S. Supreme Court requires -- and a just society demands -- this level of mental competency. . .

Reasonable doubt prompted Kaine to order the gathering of "current and independent information about Walton's mental condition." Without that assessment, Kaine said it would be "imprudent to either proceed with the execution or grant clemency."

Had a governor other than Kaine arrived at that conclusion, few would comment. But as a practicing Roman Catholic, he came under attack during last year's campaign. He assured voters his personal opposition to the death penalty would not prevent him from carrying out the duties of the office. He has allowed one execution to proceed on schedule.

Walton's stay leaves Kaine vulnerable to "we told you so" rants. Those should be ignored by reasonable people who expect Virginia to exhibit competence in lawfully applying the death penalty.

(Roanoke Times, June 12, 2006)

Editorial Praises Clemency for Mentally Ill Indiana Man Facing Execution

A recent editorial in The Washington Post praised Indiana Governor Mitchell Daniels for commuting the death sentence of Arthur Baird, who suffers from severe mental illness. The editorial noted:

Indiana Gov. Mitchell E. Daniels Jr. (R) acted wisely and humanely this week in commuting the death sentence of one Arthur Paul Baird II. There is no question that Mr. Baird killed his parents and his pregnant wife back in 1985. There is also little question that he is seriously mentally ill and was so then. His mental illness was clearly a significant factor in the killings and just as clearly led directly to his death sentence. Because of his delusional state, Mr. Baird inexplicably rejected a plea deal the state had offered him that would have spared his life. Jurors in his case have indicated that had life in prison without parole -- not an option in Indiana at the time -- been available, they would have chosen that rather than death. Family members were similarly inclined. Yet the state parole board recommended against clemency on a 3 to 1 vote, and the Indiana Supreme Court, also divided, likewise declined to step in. Mr. Daniels deserves credit for taking responsibility for preventing Mr. Baird's execution. . .

Still, other governors in recent years, faced with severely mentally ill inmates on death row, have averted their gaze and let them die. The Supreme Court has held that it is unconstitutional to execute the mentally retarded or those who were not of age at the time of their crimes. That it is still somehow okay to put to death a florid psychotic is a strange and amoral anomaly of contemporary American law, one that cries out for reform. Until that happens, however, executive clemency is the only viable protection. It is refreshing to see a governor willing to step up to the plate.

(Washington Post, September 1, 2005)

Austin American-Statesman: Texas Must Fix Uneven Application of the Death Penalty

In a November 25, 2003 editorial, the Austin American-Statesman argues that the state's implementation of the death penalty is unfair, citing the recent case of Walter Bell, who was declared mentally retarded by state experts. The editorial states that despite this,

"Rodney Connerly, the Jefferson County assistant district attorney who is now handling the case, dismisses the retardation findings as just "based on numbers," and said the fact that Bell could commit the killings shows he is not mentally retarded."

(Austin American-Statesman, November 25, 2003)

From the Washington Post: Mentally Ill Juvenile Offender Receives Stay of Execution in Georgia

(Note: Williams's sentence was commuted to life)

The Georgia Board of Pardons and Paroles has granted a temporary stay of execution until Feb. 25 to consider the case of Alexander Williams, a mentally ill inmate who was sentenced to death for a crime he committed when he was 17 years old. Williams's attorneys assert that he should not be executed because he is a juvenile offender who suffers from chronic paranoid schizophrenia. Williams has a standing "involuntary medication order" that permits guards to forcibly inject his medication if he does not take it voluntarily. At Williams's trial, neither his age nor his mental health issues were presented to the jury. (Atlanta Journal Constitution, 2/20/02) In an editorial urging a court to consider the Williams case, The Washington Post stated:

 [T]he Williams case raises the question of whether Georgia may treat an inmate to restore competency, in order then to kill him.

    . . .

 The state does not concede the extent of Mr. Williams's impairment, contending instead that the matter has never been raised in the appropriate forum. But it apparently does take his delusions seriously enough to forcibly inject him with drugs if he does not take them willingly.

At the very least, a court should consider the evidence of Mr. Williams's current mental state and determine whether his execution would offend the Constitution. No court has yet done so. Ultimately, the Supreme Court should make clear that states may not treat mental illness in order to pave the road to the death chamber. The court faced this question once before, and it punted. It should not do so again. . . . Here's hoping someone has the decency to stop it altogether.

(The Washington Post, editorial, 02/20/02)

From the Dallas Morning News:

Gov. George W. Bush has a responsibility to step away from the campaign trail today and urge the Texas Board of Pardons and Paroles to reconsider its decision to allow the execution of convicted killer Larry Robison Friday...

[E]xecuting a criminal who suffered from mental illness before he murdered and who lacked the resources for psychiatric care serves no public purpose....

[T]he nation's 2nd largest state ranks 48th for mental health investments overall.

(Dallas Morning News, 11/20/00)

From The Dallas Morning News

The state shouldn't kill people who cannot comprehend the fact that they are going to be executed or why they are going to die.....Ongoing, severe mental illness and lifelong mental retardation should exempt prisoners from the death penalty.

(Dallas Morning News, 2/2/99)


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Books: Mental Illness and Retardation

 

  • Christopher Slobogin of the University of Florida's Law School has written a new book about the state's legal authority to deprive people with mental disabilities of life or liberty. The book discusses a number of well known cases such as that of John Hinckley and Andrea Yates. It also includes discussion of laws dealing with the insanity defense, the death penalty, commitment of sexual predators, and hospitalization of people considered unable to make rational decisions. The book advances new ways of thinking and calls for a complete revamping of the insanity defense, the abolition of the guilty but mentally ill verdict, and a prohibition on execution of people with mental disability. ("Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty," Harvard Univ. Press 2006). See Mental Illness and Books.

 

    • Katherine Norgard's recent book, "Hard to Place: A Crime of Alcohol," is a personal account of the trauma experienced by her family when her adopted son is charged with a capital crime. The book is the author's story of fighting to save her son after he was sentenced to death for the 1989 murder of an elderly couple in Tuscon, Arizona. At the time of his trial, she still did not know that her son, John Eastlack, had been born with fetal alcohol syndrome, despite his signs of mental illness. The disorder occurs when mothers drink during pregnancy, and it often leaves children with seriously impaired judgment. Eastlack's brain damage was discovered after he was on death row. Eight years after he was sentenced to die, his sentence was reversed. He will likely spend the rest of his life in prison. CUNY Law Professor Jeffrey L. Kirchmeier notes, "Kathy Norgard's book gives a unique personal and professional insight into the difficulties a family faces when a loved one is charged with a capital crime. As a mental health professional, she uses her personal experiences to illustrate how mental disabilities, and fetal alcohol syndrome in particular, relate to our nation's capital punishment system. As a mother, she reveals a love for her family and illustrates a side of the death penalty that is rarely considered." Norgard, a Tuscon psychologist, now works to prevent other children from being born with fetal alcohol syndrome, the leading cause of mental retardation in the United States. Her book contains a forward by Sister Helen Prejean, who writes: "You, the reader of this book, are privileged to enter into her soul. Her words are transparent, unsparing of herself. She takes you to the deep places. She's brave to write such a book and to share it with the world." (Recover Resources Press, 2006). See Books.

     


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    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).


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    Mental Retardation News and Developments: 2003

    North Carolina Man Is Sixth in State to be Spared Under New Law on Mental Retardation


    Anthony Maurice Bone will become the sixth North Carolina death row inmate to have his sentence commuted to life in prison due to a 2001 state law banning the execution of individuals with mental retardation. The state defines as mentally retarded anyone with an IQ of 70 or below who also has significant impairment in at least two of ten life activities, such as communicating and taking care of themselves. The law requires that defendants show signs of retardation before they turn 18. The U.S. Supreme Court banned the execution of those with mental retardation in its 2002 Atkins v. Virginia ruling. (News & Record, December 10, 2003).

    Editorial Challenges Texas Death Penalty


    In a November 25, 2003 editorial, the Austin American-Statesman argues that the state's implementation of the death penalty is unfair, citing the recent case of Walter Bell, who was declared mentally retarded by state experts. The editorial states that despite this,

    "Rodney Connerly, the Jefferson County assistant district attorney who is now handling the case, dismisses the retardation findings as just "based on numbers," and said the fact that Bell could commit the killings shows he is not mentally retarded."

    Read the entire editorial by clicking here.

    Virginia Schedules Execution of Mentally Ill Man


    On May 28th, Virginia is scheduled to electrocute Percy Levar Walton, a Virginia death row inmate who does not know what year it is or that he cannot eat at Burger King once he has been executed. In a pending clemency petition to Virginia Governor Mark Warner and in an appeal to the U.S. Supreme Court, Walton's attorneys presented expert medical evidence, including tests by prison doctors, showing that their client suffers from schizophrenia and psychosis. They note that prison guards call Walton "Horse," short for "Crazy Horse," and that the guards stay at arms lengths to avoid his stench (a classic symptom of schizophrenia). In addition to Walton's mental illness, he scored a 66 on a recent IQ test and may be mentally retarded. A person with an IQ of 70 or lower is generally considered mentally retarded. (Associated Press, May 22, 2003) See Clemency.

    Texas Lags on Supreme Court's Mental Retardation Ruling


    Texas legislators have failed to pass laws that could bring the state into compliance with the U.S. Supreme Court's ruling in Atkins v. Virginia that bans the execution of those with mental retardation. Nearly a year after the Court's ruling in Atkins, Texas officials have no idea how many of the 449 death row inmates have the disability, and no safeguards to ensure that those affected by the ruling are not put to death. Most of the legislative efforts have focused on identifying defendants with mental retardation before their trials, not finding those who are already on death row. Houston defense attorney Dick Burr stated, "People facing the death penalty here are dependent on the good will of their lawyers. It means that some people are lucky and others are not." The state's testing has revealed that 7% of Texas convicts have IQs below 70, the commonly accepted benchmark for mental retardation. Thus, there could be as many as 31 condemned inmates who qualify to have their death sentences lifted. Texas Governor Rick Perry has stated that he believes that no one on death row has mental retardation, and his belief is echoed by Houston assistant district attorney Roe Wilson, who handles most of Harris County's capital appeals. "I don't know of any who are mentally retarded," Wilson said. (Houston Chronicle, May 11, 2003)

    Louisiana Governor Commutes Death Sentence to Life In Prison


    Louisiana Governor Mike Foster has removed Herbert Welcome, a 51-year-old man with mental retardation, from the state's death row and commuted his sentence to life in prison. The decision came after members of the state's Pardon Board recommended clemency in keeping with the U.S. Supreme Court's ruling in Atkins v. Virginia, which bans the execution of those who have mental retardation. Experts estimate that Welcome, who has spent 19 years on death row and who has faced execution at least three times, has the mental maturity of an 8-year-old child. (Associated Press, May 10, 2003) See Clemency.

    Circuit Court Halts Texas Execution to Allow Consideration of Mental Retardation Claim


    Nine hours before the scheduled execution of Texas death row inmate Robert Charles Ladd, the U.S. Court of Appeals for the Fifth Circuit stayed the execution to allow Ladd's attorneys time to file an appeal in a lower court raising questions about their client's IQ. Ladd's attorneys claim that a childhood test put Ladd's IQ at 67. A person with an IQ of 70 or lower is generally considered to have mental retardation and would be ineligible for execution under the U.S. Supreme Court's ruling in Atkins v. Virginia. (Associated Press, April 23, 2003)

    Nevada House Votes to Spare Juveniles


    Members of Nevada's Assembly overwhelmingly passed three legislative measures to reform the state's death penalty. The bills include a ban on the execution of juvenile offenders and those with mental retardation. The third piece of legislation adds the mitigating factor of mental illness to those factors considered by the sentencing jury and gives defense counsel the last argument during the sentencing phase of a capital trial. Assemblywoman Sheila Leslie, chair of the interim committee that studied Nevada's death penalty and introduced the three measures, said, "I think it reflects the evolving opinion of Nevadans and the nation about how the death penalty can be applied fairly and appropriately." The bills now move to the Senate for consideration. (Las Vegas Sun, April 1, 2003)


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    Mental Retardation News and Developments: 2004


    Juveniles and the Mentally Disabled More Likely to Give False Confessions


    Studies and surveys have found that both minors and the mentally impaired are more likely to make false confessions, in part because they are more vulnerable to suggestion. A recent study conducted by Northwestern University law professor Steve Drizin and UC Irvine criminologist Richard Leo examined 125 cases in which individuals were exonerated after giving false confessions. The researchers found that 32% of the cases involved minors and 22% of the cases involved individuals with mental retardation. "They are more likely to go along, agree and comply with authority figures - to say what the police want them to say - than the general population," notes Emory University professor Morgan Cloud, who co-wrote another study that found that the mentally impaired - even those who with mild forms of mental retardation - are largely incapable of understanding police admonitions of their right to remain silent and to have an attorney.
    A study published in the University of Chicago Law Review examining comprehension of Miranda rights found that only 27% of disabled persons understood that confessions can be used against a suspect, while 91% of nondisabled persons understood this concept. Disabled subjects were also found to be far less likely to understand that police cannot threaten suspects, that police and judges cannot force suspects to talk, and that there is no penalty for remaining silent. While juveniles and those with mental impairments are most likely to succumb to psychological pressure and make erroneous admissions during intense police interrogations, experts note that even the able-minded are at risk. Social scientists and legal experts say the best way to ensure that confessions or admissions are truthful is to require detectives to tape them from the Miranda warning in the first interview until the end of all subsequent interviews. Some states, including Alaska and Minnesota, already require this type of videotaping. UC Berkeley sociologist Richard Ofshe notes that video or voice recordings of confessions would reduce false confessions by as much as 90% because it would stop coercive tactics that are sometimes used by police. (Los Angeles Times, October 30, 2004). See Innocence and Juveniles.


    Arkansas Execution Stayed, Raising New Legal Questions


    The execution of Rickey Dale Newman in Arkansas, scheduled for the night of September 28, was stayed by the state Supreme Court. Newman had waived his appeals. Nevertheless, there is evidence that he may be mentally retarded. The U.S. Supreme Court ruled in Atkins v. Virginia (2002) that people with mental retardation cannot be executed. Newman's case raises the question of whether a third party can intervene to request a stay of execution, even though the defendant does not want to appeal but is mentally retarded. (DPIC; also Arkansas Democrat Gazette, Sept. 29, 2004).


    The Angolite Highlights Long Road to Clemency for Man with Mental Retardation


    The Angolite, a news magazine produced by inmates at Louisiana's Angola State Penitentiary, highlights the commutation of Herbert Welcome, a man with mental retardation whose death sentence was lifted by Governor Mike Foster in 2003. The article follows Welcome's decades-long struggle to have his sentence commuted, including a 1988 recommendation for clemency that was never signed. Years later, Welcome's clemency effort was reignited by his attorneys from the Center for Equal Justice in New Orleans and his spiritual advisor, legendary rock guitarist Larry Howard. It gained ground after the Supreme Court's 2002 ruling in Atkins v. Virginia making it unconstitutional to execute those with mental retardation. In all, Welcome spent 21 years on death row before the Louisiana Pardons Board unanimously voted to recommend clemency during a hearing ordered by Governor Foster. The Angolite article includes an overview of the clemency hearing statements delivered by experts such as Robert Perske, as well as a case overview by WelomeÕs attorney, Nick Trenticosta. (The Angolite, May/June 2003) See Resources.

    Alabama's Death Penalty Problems Continue


    Questions about the accuracy and fairness of Alabama's death penalty continue to surface as illustrated by a series of recent federal court rulings granting two new trials and one new sentencing hearing. All of the rulings were based on inadequate representation provided to the defendants. "Counsel simply provided no defense to the death penalty," Chief U.S. District Judge U.W. Clemon of Birmingham wrote March 31 in giving one of the inmates a new trial. The man has been on death row 22 years. Most of Alabama's death row inmates were convicted when the state had extremely low caps on indigent defense fees at trial. In addition, the state has not modified its law to comply with the U.S. Supreme Court decision in Atkins v. Virginia (regarding the mentally retarded), and maintains that no changes are needed to comply with Ring v. Arizona (regarding the jury's role in determining death eligibility). Bryan Stevenson, an Alabama defense attorney and director of the Equal Justice Initiative, noted: "What that means is that every month, every season, more people are being tried and sentenced to death in what are probably unconstitutional procedures. Rather than deal with it now and save family members of victims, and taxpayers, prosecutors and defense lawyers all the agony of years of appeals, we're acting as if it's not a problem." Moreover, he said, "We're the only state that does nothing to make sure Death Row prisoners get legal representation to pursue their post-conviction appeals. And the reason why that's a huge deal is that many innocent Death Row prisoners, those prisoners whose convictions have been illegally obtained, have proved their innocence or the illegality of those convictions in these post-conviction appeals." (Associated Press, May 2, 2004) See Supreme Court, Representation, and Innocence.


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    Mental Retardation News and Developments: 2006

    Virginia Supreme Court Unanimously Orders New Mental Retardation Hearing for Daryl Atkins

    The Virginia Supreme Court unanimously overturned a trial court's determination that Daryl Atkins was not mentally retarded and that he was eligible for the death penalty. Atkins' 2002 appeal to the U.S. Supreme Court resulted in the Court ruling that the execution of the mentally retarded is unconstitutional, but the ruling left it up to states to define retardation and determine the procedures for establishing this disability. Atkins' case was then sent back to the York County Circuit Court, where, in 2005, a jury determined that he was not retarded, a decision that allowed his death sentence to stand. In their most recent appeal to the Virginia Supreme Court, Atkins' attorneys argued that the jury should not have been told that Akins had been convicted of capital murder and sentenced to death. The lawyers stated that this information distracted the jury from fairly carrying out its duty to decide whether Atkins was mentally retarded. The Virginia Supreme Court agreed, stating in its opinion, "The fact that the jury knew a prior jury had sentenced Atkins to death prejudiced his right to a fair trial on the issue of his mental retardation."

    (Associated Press, June 8, 2006). See Mental Retardation and U.S. Supreme Court.


    BOOKS: A Mother's Experience with Fetal Alcohol Syndrome and the Death Penalty

    Katherine Norgard's recent book, "Hard to Place: A Crime of Alcohol," is a personal account of the trauma experienced by her family when her adopted son is charged with a capital crime. The book is the author's story of fighting to save her son after he was sentenced to death for the 1989 murder of an elderly couple in Tuscon, Arizona. At the time of his trial, she still did not know that her son, John Eastlack, had been born with fetal alcohol syndrome, despite his signs of mental illness. The disorder occurs when mothers drink during pregnancy, and it often leaves children with seriously impaired judgment. Eastlack's brain damage was discovered after he was on death row. Eight years after he was sentenced to die, his sentence was reversed. He will likely spend the rest of his life in prison.

    CUNY Law Professor Jeffrey L. Kirchmeier notes, "Kathy Norgard's book gives a unique personal and professional insight into the difficulties a family faces when a loved one is charged with a capital crime. As a mental health professional, she uses her personal experiences to illustrate how mental disabilities, and fetal alcohol syndrome in particular, relate to our nation's capital punishment system. As a mother, she reveals a love for her family and illustrates a side of the death penalty that is rarely considered."

    Norgard, a Tuscon psychologist, now works to prevent other children from being born with fetal alcohol syndrome, the leading cause of mental retardation in the United States. Her book contains a forward by Sister Helen Prejean, who writes: "You, the reader of this book, are privileged to enter into her soul. Her words are transparent, unsparing of herself. She takes you to the deep places. She's brave to write such a book and to share it with the world." (Recover Resources Press, 2006). See Books.


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