Supreme Court repeal of execution of mentally retarded would likely spur hundreds of appeals

Saturday, March 2nd 2002, 12:00 am

By: News On 6

At least 82 death row inmates are seeking reprieves in states that recently banned executing the mentally retarded, an inkling of the hundreds that would likely challenge their sentences if the U.S. Supreme Court finds such executions are unconstitutional.

That means roughly one in 10 inmates sought to get off death row because of mental retardation in states where that option became available last year. Some who seek a national ban say the real number of retarded inmates nationally could be twice that, or 20 percent.

Prosecutors say the system already keeps the mentally retarded off death row, and argue a flat-out ban would spur a slew of groundless appeals.

At the murky intersection where the mentally retarded meet the criminal justice system, advocates and prosecutors square off with much unknown _ how many retarded people are caught in the system and whether they fare worse with police or judges than others.

What seems obvious is that if the high court's decision creates a ban, hundreds of cases will be headed back to court.

With 2,455 inmates on death row in the 20 states that allow executions of the mentally retarded, that would mean 245 potential challenges if 10 percent sought reprieves, or 490 if 20 percent did. Nationally, there were just over 3,700 condemned inmates at the beginning of 2002, according to the Death Penalty Information Center.

The states that prohibit executions of the mentally retarded have jumped from two to 18 since the court's 1989 decision permitting such executions, and at least six more are now considering bans.

In five states that banned such executions last year, at least 82 new challenges have been or will soon be filed claiming mental retardation, defense attorneys estimate conservatively. With a total of 822 death row inmates in those states, that's one in 10.

Nearly half the claims came in North Carolina, the only state that made the ban retroactive so those already condemned to death could seek a reprieve. Elsewhere, defense attorneys estimated there were, or would be, at least 28 claims in Florida, 12 in Arizona, two in Missouri and none in Connecticut.

Georgia banned executions of the mentally retarded in 1988, and a year later its Supreme Court extended the ban to those already waiting on its death row.

Of 102 inmates awaiting execution in 1989, 27 claimed mental retardation, according to Georgia officials.

Seven of those inmates got reprieves from the death penalty _ one when a jury agreed on a finding of mental retardation, two through pardons and four through plea agreements that left them with life sentences.

Three inmates' claims were rejected by juries, one withdrew his claim, one died before resolution and 15 more are still pending.

``It's a tough thing to sort out,'' said longtime Georgia death penalty lawyer Steve Bayliss. ``Our clients, virtually to a man, were raised in environments that were conducive to developing mental retardation'' _ poverty, poor nutrition, alcoholism, drug abuse.

Mental retardation is a condition defined by significantly diminished intellectual ability, usually determined by IQs of about 70 (100 is average); problems with adaptive behavior like holding a job or caring for oneself; and the appearance of symptoms or diagnosis as a child.

Prosecutors in the 20 states that allow such executions say enough safeguards already exist to protect the retarded. In less clear-cut cases, a murderer with low intelligence and poor social skills still deserves punishment, they say.

``I don't think a state is going to execute a severely retarded person, and I think they're highly unlikely to execute someone who is in this gray area,'' said Alabama Attorney General Bill Pryor.

``But if it does happen even there, it's because there have been some very powerful reasons for it'' _ like the gravity of the crime and the suspect's ability to understand right and wrong, he said.

Advocates for the mentally retarded say executions are unconstitutional because the condition leaves the retarded unable to negotiate police interrogations or court proceedings, and more likely to be wrongfully convicted. And they often don't fully understand the consequences of their actions, they say.

``There's lots of reasons we shouldn't execute a mentally retarded person,'' said Sean O'Brien, who runs a death penalty clinic at the University of Missouri at Kansas City. ``They're the same reasons we shouldn't execute a child'' _ even if they committed a horrible crime.

The tales from executions can be chilling. A Georgia man told an interviewer that after his execution he was going to live on a cloud; a Virginia man asked what he should wear to his funeral.

``They are not Ted Bundys,'' said Bob Perske, a retired pastor who has devoted much of his life to working with the mentally retarded. ``We as a society are now being repulsed by the execution of these people.'' Bundy was a bright, articulate serial killer who was executed in 1989.

The American Association of Mental Retardation estimates 2.5 percent to 3 percent of the general population has mental retardation, or up to 9.5 million people nationally.

The condition can be fairly easily diagnosed, experts say, but it refers to a range of abilities and disabilities _ often denying juries and judges the rock-solid evidence they want for verdicts.

In some cases, duelling experts leave juries at a loss, where defense witnesses see retardation while prosecution witnesses see average abilities.

``Intelligence is a complex construct,'' said Ruth Luckasson, president-elect of AAMR and a professor of special education at the University of New Mexico. ``You'll get absolute precision on height if you use a technically good instrument. But we shouldn't expect that on intelligence.''

Still, thorough tests will always reveal mental retardation, she said.

No good studies exist on how many mentally retarded may be in prison, let alone on death row, Luckasson said.

If the Supreme Court doesn't impose a national ban, advocates say they will continue to push for it state by state.

And they say they'll target other parts of the criminal justice system _ so aggressive police don't mislead a mentally retarded suspect, so lawyers understand the difficulties of representing such a client, so the prison system protects them.

``As soon as this neon light of executing the mentally retarded is turned out, I really think we'll have a whole new set of problems to address,'' said Perske. ``They're so vulnerable, so damn vulnerable.''

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