Too Retarded to Die for Crimes? Laws Say No

Some said Jerome Bowden was too retarded to die for his crime, and so Georgia retested him, urging him to do his very best.

That’s what Bowden did. And on June 24, 1986, officials strapped him into the electric chair and threw the switch.

As the execution time approached, he told an interviewer he was going off to live on a little cloud and hoped a guard who befriended him would live on a cloud near him someday.

Bowden, 33, who killed a neighbor during a burglary, had an IQ of 59 and could not count to 10. An average IQ is 100.

Advocates for the retarded say executing the mentally deficient is like killing children. Others say it is not intelligence but knowledge of right from wrong that should be the key. People who defend the retarded say retardation often is not recognized in defendants.

The U.S. Supreme Court has ruled against executing the mentally ill but not the retarded.

Considered Bill

The Georgia Legislature briefly considered a bill to outlaw executions of the retarded this year but shelved it in committee when Atty. Gen. Michael Bowers said it might flood the appeals courts with cases from Death Row and virtually end executions in Georgia. It would have provided for a “guilty but retarded” plea.

Bowden confessed, said clemency lawyer Patricia Smith, because in a previous scrape he did as he was told and got leniency.

“They brought (the confession) to him in his cell to sign. I asked him if he read it first and he said, ‘I tried,’ ” recalled Smith, president of the Georgia Assn. for Retarded Citizens.

She said his trial lawyers did not use incompetency as a defense and thus could not use it on appeal.

Jerome Holloway, 30, who came within hours of execution before winning a new sentencing hearing, has an IQ of 49.

Georgia prosecutors have argued that Holloway was smart enough to bury his victim and get rid of his blood-stained clothes. But he didn’t get rid of his victim’s food stamps. Police found those in his car.

Ernest van den Haag, a law professor at Fordham University in New York City, said retardation should not be considered alone.

Right From Wrong

With an IQ below 60, he said, the person likely does not know right from wrong.

“Above 60, I would be inclined to say they knew, that they understand what is right and wrong,” he said in a telephone interview. “The IQ measures intelligence largely in an academic way. It does not measure judgment, and this is important.

“To be responsible you do not need a high degree of intelligence,” he said. “It is enough to understand that you know what you are doing and that it is wrong.”

Others compare executing the retarded to killing children.

“It is hard to understand why it is immoral to execute a 12-year-old but OK to execute someone with the mind of a 10- or 12-year-old,” said David Bruck, lawyer for James Roac, who killed a teen-age couple when he was 17.

Roach, IQ about 70, took a taxi home and was arrested when he couldn’t pay the fare. He was executed in South Carolina Jan. 10, 1986.

“Most states do some kind of screening but not for retardation,” said Pat Koester of the Clearinghouse on Georgia Prisons and Jails, which is studying retardation and capital punishment.

“Even attorneys who think they have a retarded client and want testing have trouble,” she said.

Koester said because of varying standards and little testing it is unknown how many of the country’s approximately 2,000 death row prisoners are retarded. Her group estimates the figure to be from 10% to 25%.

Ax Murder

One, Limmie Arthur, 28, is waiting to die for the ax murder of a crippled neighbor in South Carolina.

“He was tried, convicted and sentenced in 1985 and in the proceedings no one, not the lawyers, not the court, not the jury, knew he was retarded,” said his lawyer, Bruck, who had also represented Roach.

In a rehearing on an unrelated matter, he said, it came out that Arthur has an IQ of 65 and the mind of a 10- or 12-year-old.

“Retarded people who function at that level are good at one thing and one thing only and that is covering up their disability,” Bruck said. “A lawyer or prosecutor or judge talking to him is not going to realize that he is talking to a retarded person.”

“Retarded people tend to mask their deficiency by talking the lingo of the people around them,” Smith said.