New York Times


LOS ANGELES — Just hours before the time when he was to be executed last month, Johnny Paul Penry, a mentally retarded and brain- damaged man, was granted a stay of execution by the United States Supreme Court. When guards told him about the stay, Mr. Penry’s immediate concern was whether he could still have his last meal of a cheeseburger and French fries.

Reading this news, I thought of a conversation I had had with a mentally retarded and brain-damaged Texas man in May 1997, moments before his execution. I had heard the same childlike focus on the last meal. Because I had represented that man, Terry Washington, in his final appeals, it fell on me to report to him, when he had already been moved to the execution chamber, that neither the United States Supreme Court nor Gov. George W. Bush would stop his execution. I was concerned with how Mr. Washington would take the news. He told me the new guards were real nice and they gave him real good food. Within a half-hour he was dead.

Texas prosecutors and judges had all agreed that my client had the mental functioning of a 7-year old child. The jurors who sentenced him to death, however, never knew about his condition because his appointed trial attorney, who specialized in divorce law, never thought to tell them. But none of this was considered an obstacle to his execution.

The life of Terry Washington was doomed even before he was born. It was fetal alcohol syndrome that probably caused his brain damage, the experts said. He grew up in extreme poverty, one of 11 children living in a two-room shack with no running water or electricity. The children were beaten often, their mother was hospitalized in a mental institution and their father abandoned them for the bars. Mr. Washington’s mental retardation was recognized when he entered school, and tests throughout his short life (he died at 33, after 10 years in prison) showed an I.Q. ranging from 58 to 69. His reading never advanced beyond the second-grade level. His communication skills were at the level of a 7- year-old and his social skills at that of a 5-year-old.

The brain damage was separate from the mental retardation and affected Mr. Washington’s speech and his ability to understand and order concepts. His ability to put events in sequence was impaired, so that he was unable to recall the happenings in a given day in the order in which they took place. Imagine such a person sitting in a courtroom attempting to follow his own trial.

Speaking to Mr. Washington, the lawyer who represented him in his trial for the 1987 murder of Beatrice Huling may have at first concluded that his client was a shy, quiet man. A common trait of the mentally retarded is the effort to hide their disability. Any real conversation would have made Mr. Washington’s problems apparent. The lawyer also had school records showing the special education courses and I.Q. results. Still, at no point during the short trial did the lawyer bring the subject of Mr. Washington’s mental retardation or brain damage to the attention of the judge or jury. At the sentencing phase, the sole witness presented by the defense was Mr. Washington’s mother, who told the jurors that her son was a nice boy.

During the years in which we pursued his appeals, I spent time with Terry Washington at the Huntsville prison and received many letters written in his childlike scrawl. I learned later that he dictated these letters to a fellow prisoner, then copied them into his own handwriting. He dotted his i’s with little hearts. During my last visit, he proudly announced that he could spell my whole name. He made me boxes with Popsicle sticks. He told me that when they let him go he wanted to come to visit in New York City so he could see the tall buildings.

It seems obvious that if the jurors who decided his fate had known the Terry Washington that I knew, they would have understood that killing this man served no valid purpose. The theory of retribution demands that punishment relate to personal blameworthiness; adults who function at age 7 are no more blameworthy than actual 7-year-olds. Nor is deterrence served by this sort of execution, since a mentally retarded man would hardly pause before a murder to contemplate legal consequences.

Currently, half the states allow execution of the mentally retarded. But, as polls have confirmed, even to many people who support capital punishment this kind of execution feels wrong. That visceral aversion should tell us something about justice.

Dina R. Hellerstein represented Terry Washington from 1993 to 1997 in his post-conviction appeals.