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 argue 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).