Executing the Retarded Is a Shameful Legal Relic

Lawyer Joseph Margulies represented Johnny Ray Anderson. Robert L. McGlasson and Susan C. Casey represented Mario Marquez

With effort, Johnny Ray Anderson could figure out that one plus one was two. Two plus two, however, was beyond him. When pressed, he guessed the answer was, once again, two.

He could not read or write. Only with difficulty could he name the holiday near his birthday of Dec. 28. He could not remember the year he was born. He had never been on a plane and had never seen a map of the United States. But he knew he lived in Texas.

Anderson was mentally retarded and grew up in squalor in Vidor, Texas--the state that executed him May 17, 1990.

Increasingly, the practice of executing the mentally retarded has been repudiated. At last count, 15 of the 38 states with the death penalty, as well as the federal government, prohibit the execution of mentally retarded people.

But in Texas, Gov. Rick Perry recently took a giant step backward when he vetoed legislation that would have put Texas in concert with the growing consensus against executing adults who have the mental age of children. The bill had passed both houses by a substantial margin and enjoyed broad popular support (a 1992 poll found that 73% of Texans opposed the execution of the mentally retarded). In support of his veto, Perry falsely claimed: "We do not execute the mentally retarded in Texas," shocking all around him who knew better.

Perry's predecessor, George W. Bush, used to say much the same thing. But Perry and Bush are wrong: Mentally retarded people have been and will continue to be executed in Texas.

In addition to Johnny Anderson, Texas has executed at least five other mentally retarded men. One was Mario Marquez. He had the mental capacity of a 5-year-old child, having been diagnosed as mentally retarded (with an IQ of 62) as early as age 9. Marquez was incapable of understanding, let alone discussing, his legal situation with his attorneys, preferring instead to talk about his favorite animals and things he liked to draw.

Gov. Perry's bland assurance that Texas has never executed a mentally retarded inmate would come as a surprise to the state judge in Marquez's case, who made a specific finding--joined by the prosecution--that Marquez was mentally retarded. In fact, no one has ever suggested that he was not retarded. Texas executed Marquez on Jan. 17, 1995, the same day Bush was inaugurated as governor.

There have been at least four others. Texas executed Terry Washington in 1997. Tests throughout Washington's life showed he had an IQ of 58 to 69. Even the prosecutors admitted Washington was retarded. And when his lawyer told him that Gov. Bush would not stop his execution, Washington said the new guards were real nice and they gave him good food.

Other mentally retarded men still await execution in Texas. Johnny Penry, whose conviction has been reversed twice by the U.S. Supreme Court, has an IQ between 50 and 63 and the mental age of a 6-year-old. At his first trial, the prosecutor's hand-picked expert testified that the results of two different tests showed that Penry was retarded.

Throughout the appeals and in their argument in the Supreme Court, Texas prosecutors accepted that Penry was retarded. Yet now, for the first time, prosecutors claim that he may be "faking" his mental disability.

This new strategy has backfired. The fervent denial that Texas would ever execute a mentally retarded man is the strongest evidence yet that civilized society will tolerate no other position.

Perry and Bush disavow what has happened in Texas because it is so appalling to admit the truth. When even the president of the U.S. must torture history to justify it, then surely it is time to agree that executing the retarded, like executing the innocent or executing a man because of the color of his skin or the quality of his lawyer, is shameful.

As societies develop, so do their laws. Certain practices become unconscionable relics and are cast aside as repugnant. In 1956, the Supreme Court wrote about the "evolving standards of decency that mark the progress of a maturing society." In 1989, the court found that "at present, 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 8th Amendment." This fall, they will revisit the question. So where are we now? We are here, waiting for the mark of maturity.

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