Aides Clarify Bush Stance on Executing Retarded Inmates

TIMES STAFF WRITERS

Death penalty opponents said they were surprised and a bit confused Tuesday by President Bush's statement that he opposes the execution of those who are mentally retarded.

"Well, we should never execute someone who is retarded," the president told European reporters Monday as he was about to depart on his first official trip to Europe. "And our court system protects the people who don't understand the nature of the crime they committed nor the punishment they are about to receive."

But longtime advisors to the president said Tuesday that he was not signaling a change in policy. They said Bush and other Texas authorities use a different definition of mental retardation than is common elsewhere.

Indeed, during Bush's two terms as governor of Texas, the state executed at least two inmates whose very low I.Q. scores defined them as retarded.

A leading defense lawyer in Texas said Bush does not understand the law.

"I think he's just sort of confused," said Jim Marcus, executive director of the Texas Defender Service, a nonprofit group that handles capital cases. "A lot of people confuse the question of whether we should execute the mentally retarded with the question of whether we should execute people who aren't competent to stand trial. That's seems to be what he's doing here."

Another Texas inmate who is retarded, Johnny Paul Penry, was spared by the U.S. Supreme Court in November just hours before his planned execution.

Penry, who raped and stabbed a woman with a pair of scissors, had I.Q. scores that ranged from 50 to 63, and he was described as having the mental capacity of a 6-year-old.

Mental retardation is commonly defined by an I.Q. below 70.

Last week, the Supreme Court overturned Penry's death sentence for a second time because Texas jurors failed to fully consider his mental retardation as a reason to spare him.

"I welcome President Bush's change of heart on the execution of people with mental retardation," said Stanley S. Herr, a University of Maryland law professor and past president of the American Assn. on Mental Retardation. "However, he appears to be somewhat confused about the record in Texas and the United States. Since 1976, 35 offenders with mental retardation have been executed in this country, and Texas has led the way with six."

Yale University law professor Harold Hongshu Koh said, "There are two halves to [Bush's] statement, and they are internally inconsistent. Our existing system executes people who have mental retardation."

A senior White House communications advisor, Dan Bartlett, said, "The president is very aware of this issue. It has been debated extensively in Texas.

"In Texas, we have provisions in the law that protect someone who doesn't understand the actions they have taken. That is something the jury considers. A person may have a low I.Q., but despite that, they have the skills to deceive and manipulate. They have the mental capacity to be held responsible for their crimes."

Claire Buchan, a White House spokeswoman, said Bush has consistently taken the view that a jury must decide whether the defendant understands the crime he is accused of committing. "The standard is not simply a low I.Q. score but also the adaptability skills that allow the person to understand the crime they have committed and the punishment that they are to receive."

According to Bush's advisors, Penry should not be considered mentally retarded because the jury concluded he understood his crimes and knew right from wrong.

"If you look at the narrow definition of just I.Q. tests, I can see that [he was retarded]. But I don't think there was widespread acceptance that Penry was mentally retarded. The jury was convinced that Penry was fully competent," Bartlett said.

On Jan. 17, 1995, as incoming Gov. Bush took office, Texas prison authorities put to death Mario Marquez, who had an I.Q. of 65. His trial lawyer said he had not told the jurors of his client's mental retardation because Texas law at that time did not allow for its consideration.

The Supreme Court cited that flaw in 1989 when it overturned Penry's conviction the first time. Texas jurors during the sentencing phase were asked to decide only three questions: Was the murder deliberate? Was it unprovoked? And does the defendant represent a continuing danger to society?

Defense lawyers claimed the jurors had no opportunity to focus on retardation as a reason to send the murderer to prison for life rather than to die. After the Supreme Court's first ruling, Texas jurors were told they could consider retardation as a reason to reject a death sentence.

On May 6, 1997, Texas authorities executed Terry Washington, who's I.Q. was measured between 58 and 69.

Last year, on Aug. 9, Oliver Cruz was executed. His I.Q. was tested at between 64 and 76.

Those executions may end soon, however. The Texas Legislature has passed a bill that would end the death penalty for those who are mentally retarded. Gov. Rick Perry has until Sunday to sign or veto it.

Elsewhere, 14 states have exempted the retarded from their death penalty laws, and the president's brother, Florida Gov. Jeb Bush, recently announced he will no longer sign death warrants for mentally retarded inmates who face execution.

In 1994, Congress added the death penalty for a series of crimes such as terrorism and assassination, but it exempted those who are mentally retarded.

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