Executing ‘Mental Children’

A federal appeals court in Texas Monday pulled the curtain down on one of that state’s long-running death penalty sideshows, blocking the execution of a man whose lawyer slept through much of his trial. But on the same day, the U.S. Supreme Court refused to hear an appeal from another Texas man, who was 17 years old when he committed murder. He is now scheduled to die today.

The death machine grinds on, but Americans, including those in the 38 states with the death penalty, are asking questions about capital punishment, revealing a new queasiness. Are defendants in death penalty cases entitled not just to lawyers but to competent lawyers? Should we execute teenagers? Is it barbarous to put to death mentally retarded defendants incapable of understanding the consequences of their heinous crimes? And have we executed some individuals who were innocent of the crimes for which they were convicted?

This national conversation about the death penalty has so far produced a moratorium on executions in some states and new laws in many others to improve the odds that capital defendants will be competently represented and that their trials will be fair. But in California, state lawmakers terrified of being tarred as soft on crime are stalling a modest bill that would ban the execution of mentally retarded felons.

Eighteen states now specifically ban the death penalty for those whose IQ score is below 70, roughly equivalent to the mental age of an 8-to 10-year-old. Just since April, governors in North Carolina, Missouri, Connecticut, Florida and Arizona have signed legislation outlawing the shameful practice.

In the coming term, the U.S. Supreme Court will revisit its outrageous 1989 decision declaring that executing the mentally retarded does not violate the 8th Amendment’s ban on cruel and unusual punishment. Justice Sandra Day O’Connor, in a speech last month, voiced welcome new doubts about whether the death penalty has been fairly applied. Similar doubts about fairness, morality and constitutionality have echoed through many statehouses and courthouses across the country.

These concerns prompted California Assembly member Dion Aroner (D-Berkeley) to introduce AB 1512, barring the execution of mentally retarded felons. That was back in January; the measure is now stalled.

It is true, as Atty. Gen. Bill Lockyer and others argue, that state law already requires that jurors in death penalty cases be specifically instructed to consider evidence of a defendant’s “mental disease or defect” as a reason to spare his life. Having considered that evidence, however, juries may still sentence the defendant to death and, according to lawyers who represent death penalty defendants, sometimes they do.

The notion of executing someone with the mind of a child should be repugnant to a civilized society. Why then leave such a decision to the impulses of individual juries? Legislators return briefly from their recess later this month. Aroner’s AB 1512 should be at the top of their to-do list.