Inmates Can Appeal Based on Their IQ

The California Supreme Court cleared the way Thursday for dozens of condemned prisoners to escape their death sentences on the grounds they are mentally retarded, defining the disability more flexibly than prosecutors had wanted.

Prosecutors, who fear a flood of petitions from death-row inmates, wanted the court to define retardation using a specific IQ level. They suggested 70 on a scale on which the average is 100. The court declined.

“IQ tests are insufficiently precise to utilize a fixed cutoff in this context,” Justice Janice Rogers Brown wrote for the court.

Instead, the justices said, inmates could get hearings to challenge their death sentences as long as a qualified expert says they are retarded.

At the hearings, inmates can have their death sentences reduced to life in prison without parole if a judge decides it is more likely than not that they have “significantly subaverage general intellectual functioning” and behavioral and practical disabilities that began before the age of 18.

Mental retardation is “a question of fact,” Brown wrote. “It is not measured according to a fixed intelligence score or a specific

Evidence about the defendant’s crimes may be considered only if relevant to the question of his mental capability, the court said.

In 2002 the U.S. Supreme Court ruled that executing mentally retarded people would violate the Constitution’s ban on “cruel and unusual” punishment. But the high court left to the states the job of deciding how to define retardation.

Thirty of the state’s 640 death-row inmates now say they are mentally retarded, and many more are expected to make similar claims as their court appeals progress.

The 7-0 ruling was a victory for Anderson Hawthorne Jr., 44, who was sentenced to death for killing two rival gang members in Los Angeles in 1982.

Hawthorne will now have a hearing on his mental fitness in Los Angeles County Superior Court.

In giving Hawthorne a hearing on his claim, the court cited the declaration of a neuropsychologist who said Hawthorne was “one of the most profoundly impaired individuals that I have seen in a forensic population.”

As a child, Hawthorne was a slow learner who had trouble with basic reading, writing and arithmetic and problems communicating with others, the court noted.

Hawthorne “has met the threshold showing of mental retardation,” Brown wrote.

Deputy Federal Public Defender Harry Simon, Hawthorne’s lawyer, called the ruling “the best realistic outcome possible.”

Hawthorne, whose IQ has been measured by various tests from 71 to 86, also is challenging his conviction in federal court. “I believe if he had a fair trial, he never would have been convicted,” Simon said.

Senior Assistant Atty. Gen. Dane Gillette, capital case coordinator for the state, called the court’s decision “reasonable.”

So far, the state has challenged all but two of the 30 pending claims of mental retardation. State officials now will reassess their challenges to decide whether to continue to fight hearings in all the other cases, Gillette said.

Even though the court refused to establish an IQ cutoff, intelligence scores will still be relevant, Gillette said. A claim that “someone who has an IQ of 90 is retarded is going to have little credibility,” he said.

Two of the court’s seven justices, Ming Chin and Joyce L. Kennard, wrote a separate opinion to stress that point.

“A person whose IQ score is over 75 is very likely not mentally retarded,” Chin wrote. “In many, perhaps most, cases,” an inmate will not be considered retarded without an IQ score “at or below the 70-75 range.”

Charles Hobson, a lawyer with the Criminal Justice Legal Foundation, an advocacy group that works on behalf of crime victims, said allowing a condemned inmate to get a hearing based on just one qualified expert may lead to too many cases going to court.

“You will find more cases, and that is a potential problem,” he said. “There will be a lot of work to be done.”

Still, he said, the decision should resolve claims of mental retardation relatively quickly because federal courts and the California Supreme Court will have to give great weight to the trial judge’s determination if it is challenged.

“Death-row inmates making a claim of mental retardation should not be dancing in their cells as a result of today’s decision,” Hobson said.

The court’s standard is similar to the one adopted by the Legislature two years ago for inmates awaiting trial on death penalty charges.

A new defendant may ask either a judge or a jury to determine whether he or she is retarded. The state high court left it only to judges to make the decision for prisoners already condemned.

The state’s definition of mental retardation closely mirrors that of the American Assn. on Mental Retardation. The group says a person is mentally retarded if he or she has subaverage intellectual functioning, usually shown by an IQ score of 75 or below, along with evidence of inappropriate behavior, including significant limitations in conceptual, social or practical skills, before the age of 18.