INCLUSION DAILY EXPRESS -- Death Penalty and Mental Retardation

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FATES OF INMATES LINKED
By Dave Reynolds, Inclusion Daily Express
April 3, 2001
UNITED STATES--John Paul Penry and Ernest P. McCarver.

Even though they have been physically separated by over a thousand miles for the past two decades, the paths of these two men crossed last week in the same room, within hours of each other.

Last Monday, the U.S. Supreme Court agreed to hear arguments in the case of Ernest McCarver, 40, a death row inmate in North Carolina, who came within hours of being executed last month for murdering a coworker in 1987. The high court will be deciding whether it is unconstitutional to execute people considered to have mental retardation. The case will be heard this fall and a decision is likely next year.

McCarver's most recent IQ test, arranged by his defense team, put his score at 67. But his IQ was measured at between 70 and 80 before his trial. Scores of 70 or below are considered by many experts to indicate mental retardation.

In 1989, the same court ruled in a close 5-4 vote, that the death penalty for people with mental retardation was not "cruel and unusual punishment" as defined in the U.S. Constitution. In the court's decision, Justice Sandra Day O'Connor said, "There is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment". The court did decide, however, that a jury should consider a person's "mental capacity" before deciding the appropriate sentence.

That case involved John Penry, a Texas death row inmate who had been convicted in 1980 of stabbing a woman to death with a pair of scissors. The Supreme Court decisions in 1989 said that Penry's IQ scores of between 50 and 64 could not keep him from being legally executed, but that the jury should have been told about his IQ before sentencing him to death. His death sentence was thrown out and a new trial was ordered.

Like the first jury, the jury in the second trial found Penry guilty and gave him the death penalty. He was to die last November, but was spared just three hours before his scheduled execution. The U.S. Supreme Court had ordered a halt to the execution so it could hear new arguments regarding Penry's second trial.

It is very unusual for the U.S. Supreme Court to agree to hear cases for the same person more than once. But last Tuesday -- just one day after the court agreed to use McCarver's case to re-test their 1989 Penry decision -- the court heard arguments again regarding John Penry, who is now 44. This time, however, the court is not looking at whether the death penalty for people with mental retardation is constitutional. Instead, the question has to do with whether or not the jury that convicted Penry the second time was given information about his mental retardation before sentencing him to death.

In McCarver's case, the court will be looking at whether or not attitudes have changed over the past 12 years to the point where executing people with mental retardation violates society's ideas of what is decent. When Penry's first case was presented to the court in 1989, only two states banned executions of people with mental retardation. Since then, eleven more states have passed similar laws, and several other states are considering bills during the current legislative sessions that would ban the practice.

Groups from around the world have condemned the U.S. for allowing people with mental illness or mental retardation to be executed. Some groups say that people with such disabilities are often not sophisticated in defending themselves and do not thoroughly understand their rights. Since many are taught how to please others instead of how to understand and advocate for their own rights, they are more easily manipulated by accomplices and by police who want a confession. Another factor is that most people with disabilities do not have the money to hire qualified, competent attorneys skilled in defending death penalty cases.

The Death Penalty Information Center estimates that 35 Americans considered to have mental retardation have been executed over the last 24 years and that over 300 people now on death row fall into that category. The center has updated their website at this address:
http://www.deathpenaltyinfo.org/dpicmr.html

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REPORT CALLS FOR END OF DEATH PENALTY FOR HUNDREDS OF INMATES
By Dave Reynolds, Inclusion Daily Express
April 3, 2001

NEW YORK, NEW YORK--On March 20, Human Rights Watch published a fifty-page report entitled, "Beyond Reason: The Death Penalty and Offenders with Mental Retardation".

The human rights group examined the cases of 35 people executed since a ban on the death penalty was lifted in 1977. The comprehensive report looks at the states' capital punishment laws and how mental retardation is measured. It also give detailed accounts of how the rights of those sentenced may have been compromised.

Human Rights Watch recommends that, until the death penalty is banned in the United States, executions of people with mental retardation should not be allowed under any circumstances.

[Editor's note: Unfortunately, in their efforts to advocate for convicts who have disabilities, the group reinforces the stereotypes of adults with mental retardation as being "stupid", "incompetent" and "child-like".]

The report is available on line:
http://www.hrw.org/reports/2001/ustat

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HIGH COURT HEARS PENRY CASE, AGAIN
March 28, 2001

WASHINGTON, DC--The U.S. Supreme Court on Tuesday heard arguments in the case of Texas death row inmate John Paul Penry, who, it is claimed, has scored between 51 and 63 on IQ tests. Many experts believe that an IQ of 70 or below indicates mental retardation.

At question in the Supreme Court case, however, is not whether or not executing a person with mental retardation is "cruel and unusual punishment". The court already ruled in 1989 that it is not. This time the court is asked to decide how a jury should be informed about a person's mental retardation.

More details, along with links to more coverage, are available from this CNN website:
http://www.cnn.com/2001/LAW/03/27/scotus.deathpenalty.01.ap/index.html

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EUROPEAN UNION ASKS GOVERNOR TO SPARE CONVICT'S LIFE
By Dave Reynolds, Inclusion Daily Express
March 28, 2001
CARSON CITY, NEVADA--In a statement released yesterday by the Swedish Embassy in Washington, DC, the head of the European Union asked Nevada Governor Kenny Guinn and the state's Board of Pardons to spare the life of a death row inmate because he has mental retardation.

Thomas Nevius was convicted of shooting to death a Las Vegas resident during a home burglary in July 1980. He was sentenced to be executed for the crime.

Three witnesses, including Nevius' brother David, testified that he was the ring-leader of the group and that he pulled the trigger.

David walked away with probation and the other two are serving life sentences.

Michael Pescetta, who has been the public defender for Nevius since 1996, says records show that Thomas Nevius has scored between 57 and 68 on IQ tests. Pescetta also claims that the jury which convicted Nevius were not given this information, and that six of the jurors now say they would not have agreed to the death penalty if they had been provided that information.

All of Nevius' appeals have been exhausted or denied, including an appeal earlier this month to the U.S. Supreme Court.

Guinn has scheduled a clemency hearing with the Board of Pardons for April 11.

The statement from the EU, currently headed by Sweden, asks that the sentence be commuted to life in prison, noting that "the execution of mentally retarded persons conflicts with the minimum standards for human rights set forth in several resolutions by the United Nations."

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JUDGES WOULD DETERMINE MENTAL RETARDATION UNDER PROPOSED DEATH PENALTY BILL
By Dave Reynolds, Inclusion Daily Express
March 9, 2001
PHOENIX, ARIZONA--A bill banning the death penalty for people with mental retardation is being considered by the Arizona Senate.

According to Thursday's Arizona Republic, Senate Bill 1551 would set general guidelines for a judge to determined whether or not a defendant had mental retardation prior to going to trial. If the judge decided the person did have mental retardation, capital punishment would be removed as an option.

The measure would not set a precise standard such as an IQ of 70 or below which is considered by many experts to indicate mental retardation. The bill would have the judge make the call.

Luis Mata was the last person known to have mental retardation to be executed in Arizona. Mata and his brother Alonzo were been convicted of brutally killing a woman named Debra Lopez in 1977. Luis was executed for the crime in August of 1996. His brother received a sentence of life in prison.

Before Mata was executed the man who prosecuted him learned that Mata had scored between 68 and 70 on IQ tests. Michael Donovan said that no information about his disability was brought up prior to sentencing.

"None of this critical information was presented at Luis Mata's sentencing hearing," said Donovan last month. "Quite frankly, . . . Had I known this information, I would not have requested or pursued a death sentence."

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PROPOSALS TO LIMIT EXECUTIONS MOVE AHEAD
By Dave Reynolds, Inclusion Daily Express
March 9, 2001
JEFFERSON CITY, MISSOURI--The state House passed a bill Thursday that would make it illegal to execute people with mental retardation. The state's Senate gave first-round approval to a similar bill on Wednesday.

The measures do not rely on a standard IQ score to determine mental retardation. Many experts use an IQ of 70 as the cut-off for mental retardation. Many advocates for people with mental retardation have argued that IQ scores primarily measure how well a person does on a set of tests, and that this has little to do with determining how capable the person is.

The Senate bill defines mental retardation as a "condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with continual related deficits and limitations in adaptive behavior such as communication, self- care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work."

The House bill is similar but adds that the person's "significantly subaverage" intelligence harms the person's ability to communicate, work or take care of himself.

Both bills would require that the disability be documented before the person reaches age 18.

Neither bill would be retroactive, so would have no effect on the case of Missouri death row inmate Antonio Richardson, who narrowly escaped execution earlier this week. Richardson, was convicted of raping and murdering two sisters in 1991, when he was just 16 years of age. He reportedly has an IQ of 70.

Richardson was scheduled to die on Wednesday morning, but was spared temporarily by the United States Supreme Court. The high court ordered the execution halted until after it reviews the case of John Paul Penry, another convicted murderer with mental retardation who is on death row in Texas.

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RICHARDSON'S EXECUTION ON, THEN OFF, THEN ON, THEN OFF
By Dave Reynolds, Inclusion Daily Express
March 7, 2001
POTOSI, MISSOURI--After an evening of legal "ups" and "downs" the most recent reports this morning indicate that Antonio Richardson was not executed overnight.

Richardson, 26, has been on death row since being convicted of the 1991 rapes and murders of two sisters. His supporters say he has mental retardation and "the mind of a ten-year-old".

Richardson was scheduled for execution at 12:01 this morning. But early last night, the 8th U.S. Circuit Court of Appeals ordered the execution stopped. The Appeals Court wanted Richardson's life spared, at least until the U.S. Supreme Court rules on the case of John Paul Penry, a convicted murderer from Texas who also has mental retardation.

At 9:55 p.m., after hearing a petition from the Missouri Attorney General's office, the U.S. Supreme Court, reversed the Appeals Court ruling and reinstated the execution. Officials at the Potosi Correctional Center moved forward to execute Richardson by lethal injection as planned.

Finally, with just a short time left before the scheduled execution, the Supreme Court reversed its own earlier ruling, thereby blocking the execution for the time being. The high court said it wants to use the Penry case to clarify how much opportunity jurors in death penalty cases must have to consider the defendant's "mental capacity".

Richardson was 16 years of age when he committed the crimes. Only one other execution in the last 40 years in the U.S. involved someone who committed the crime at age 16 or younger.

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CONDEMNED MAN SPARED BY "MISSING" EVIDENCE
By David Reynolds, Inclusion Daily Express
January 5, 2001

TULSA, OKLAHOMA--For reasons not yet explained by officials, evidence from a 1985 murder showed up mysteriously late Wednesday, less than 24 hours before the man convicted of the crime was scheduled to die. The items -- a bloody sock, a pair of overalls, and a pocket knife -- were discovered in a evidence locker. They had been missing for the last four years.

In light of the discovery, Lt. Gov. Mary Fallin granted a 30-day reprieve to Robert William Clayton, 39, who was to be executed on Thursday, in order for the evidence to be examined and tested by DNA experts. It was the first stay of execution granted in Oklahoma over the last ten years.

Clayton, who reportedly has mental retardation and scored 68 on IQ tests, was convicted in the stabbing death Rhonda Kay Timmons, 19, at the Tulsa apartment complex where he was a groundskeeper. During the 1987 trial, prosecutors alleged that Clayton's sock and overalls contained traces of Timmons' blood. The overalls had been washed, but blood found on the sock had the same blood-type as Timmons. Experts were unable to determine whether the blood on the knife was from a human or an animal.

When a 1996 state law allowed evidence to be tested using DNA technology, none of the items could be found. Why the evidence turned up on Wednesday is unclear. Clayton's defenders believe DNA testing of the sock and knife will clear the man who has been on death row for 14 years. Fallin's order for the stay of execution will allow the testing to begin immediately.

Investigators in the case say Clayton confessed to "flipping out" and killing Timmons. Clayton denies that he gave any such confession.

The discovery brings into further question how states handle death penalty cases, particularly those involving defendants believed to have mental retardation. Clayton's reprieve came the day after Albert Burrell, a death row inmate who scored 68 on IQ tests, was released from Louisiana State Penitentiary. Burrell was cleared of the 1987 murder of an elderly couple, when DNA tests found that blood found at the crime scene did not belong to Burrell or his alleged accomplice. Last October, DNA tests cleared a Virginia death row inmate Earl Washington Jr, 40, of raping and murdering a woman in 1982. Defense attorneys believe Earl Washington, who reportedly has an IQ of 69, had been pressured by police to confess to committing the crimes.

Advocates for people with disabilities point out that people with mental retardation are at a disadvantage because, among other things, they may not understand their rights, confessions are easily forced from them, and they have poor legal representation. Before the decision Oklahoma was scheduled to execute eight people this month, which would have matched a monthly record for executions set recently in Texas. Still scheduled to die by lethal injection on January 11 is Wanda Jean Allen, who reportedly has an IQ of 69, considered by many to be in the mild range of mental retardation.

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PENRY'S CASE CENTER OF DEATH PENALTY DEBATE
January 5, 2001

LIVINGSTON, TEXAS--On Sunday, the Washington Post ran a related story about death row inmate John Paul Penry, 44, whose case will be reviewed by the U.S. Supreme Court within the next few months.

Penry was convicted in 1980 of murdering Pamela Moseley Carpenter, the sister of former Washington Redskins kicker Mark Moseley. His conviction was thrown out in 1990, after the U.S. Supreme Court determined that the jury did not have adequate information regarding Penry's IQ, which is estimated to be between 50 and 60.

Penry was convicted a second time, and was scheduled to die on November 16. Within a few hours of his scheduled execution, his attorneys won a temporary reprieve while the High Court decides his fate.

Those defending Penry's life are in the unfortunate position of having to make him, and therefore other adults labeled with mental retardation, look like he is a "child stuck in an adult's body". And while this article does a good job outlining the background of the case, it does little to portray people with disabilities as competent. See if you can count the number of statements or phrases, such as "intellectual capacity of a first-grader", that make him look like a child:
http://www.washingtonpost.com/wp-dyn/articles/A2229-2000Dec30.html

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DNA TESTING FREES DEATH ROW INMATE
By Dave Reynolds, Inclusion Daily Express
January 3, 2001

ANGOLA, LOUISIANA--For the first time in nearly 14 years, Albert Burrell walked out of the Louisiana State Penitentiary yesterday -- a free man -- after DNA testing cleared him of the crimes for which he was sent to death row.

Burrell, who is considered to have mental retardation, and his alleged accomplice, Michael Graham Jr., were convicted and sentenced to die for the 1987 murders of William and Callie Frost. Both men have consistently maintained that they were not guilty of the crimes.

Burrell came within 17 days of a scheduled execution in 1996, before his attorneys won a stay of execution.

On Tuesday, District Judge Cynthia Woodard ordered Burrell released after DNA testing determined that blood found at the murder site, long believed to belong to Burrell and Graham, in fact did not match that of either man. Graham was released last Thursday.

"We have no physical evidence in this case and that has been the problem from the start," said Pam Laborde, a spokesperson with the state's attorney general office. Woodard agreed with the attorney general that Burrell's and Graham's trials had "a number of irregularities".

This is not the first time DNA evidence has spared a person with mental retardation from the death penalty. Last October, DNA tests cleared a Virginia death row inmate of raping and murdering a woman in 1982. Defense attorneys believe Earl Washington Jr., 40, who reportedly has an IQ of 69, had been pressured by police to confess to committing the crimes. Washington had been convicted even though his confession had a number of inconsistencies. For example, he said he had acted alone, even though the victim's children testified they had witnessed the crime and that two men were involved. He also incorrectly identified the woman's race.

Washington's case has caused Virginia lawmakers to review the fairness of its death penalty laws. Illinois Governor Ryan last year issued a moratorium on executions in his state until a thorough examination can be done, after DNA and other evidence caused a large number of death penalty cases to be thrown out.

The execution of people with mental illness or mental retardation in the U.S. has sparked debate around the world, and some action within the states. Some disability rights advocates say that people such disabilities are often not sophisticated in defending themselves and do not thoroughly understand their rights. Since many are taught how to please others instead of how to understand and advocate for their own rights, they are more easily manipulated by accomplices and by police that want a confession. Another complicating factor is that most people with mental disabilities lack financial resources to obtain qualified, competent attorneys skilled in defending death penalty cases.

Last month, John Paul Penry, who reportedly has mental retardation, came within a few hours of being executed in Texas before the U.S. Supreme Court granted him a stay in order for the court to examine his case. A decision is expected in the summer.

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