Ban Sought on Execution of Retarded

Rejecting charges that it would weaken the death penalty in California and set convicted killers free, the state Senate approved a bill Thursday that would carry out the U.S. Supreme Court’s decision exempting mentally retarded murderers from execution.

Passage followed an impassioned debate in which supporters of the bill praised it as a sensible way to implement the court decision. But opponents alleged that the measure was a clever attempt by foes of capital punishment to ensure that the death penalty would never be applied in California again.

“I guarantee you that every single murderer ... is suddenly going to become mentally retarded, because it is a way to escape the ultimate penalty of death,” warned Sen. Jim Battin (R-La Quinta).

Senate President Pro Tem John L. Burton (D-San Francisco), a lifelong opponent of the death penalty, vigorously defended the bill, his voice filing the chamber with a thunderous roar that he had not used for years.

At one point, Burton scolded Republicans who said the bill would weaken capital punishment in the state, noting that two of his closest friends, former Mayor George Moscone of San Francisco and labor leader Dow Wilson were murdered.

“Don’t tell me about revenge. Don’t tell me about an eye for an eye. I know that stuff.... I know what people feel,” Burton boomed. Even so, he said, he still opposes the death penalty.

Under the bill, mentally retarded defendants no longer would be executed at San Quentin for first-degree murder with special circumstances; they would be locked behind bars for the rest of their lives with no parole.

Burton called the bill a workable response to the court ruling that would establish a judicial process to determine whether an adult accused of first-degree murder did, in fact, have the mental age of a child and was incapable of forming an intent to kill someone or of understanding the consequences.

In its June ruling, the Supreme Court said putting a mentally retarded defendant to death violated the Constitution’s prohibition against cruel and unusual punishment. The court left it to the states to determine which criminals were mentally retarded, including murderers already on death rows.

Burton and Assemblywoman Dion Aroner, a liberal Democrat from Berkeley who introduced the bill (AB 557), said it was unknown how many people on California’s death row might qualify as mentally retarded. But Burton said he believed it was no more than a few.

On a partisan 23-11 vote, two more than needed for approval, Democrats overwhelmed Republicans and sent the bill to the Assembly, where its outlook is murky, especially among conservative Democrats from marginal districts.

“It’s going to be much more difficult to get the bill off our floor,” Aroner said. “I’m hoping that members will listen to the policy discussion and whatever [election] fears they may have will be overcome by the facts of this bill: The Supreme Court has spoken.”

A spokesman said Gov. Gray Davis, a supporter of the death penalty, had taken no position on the bill.

The high court said mentally retarded people do not act with the “moral culpability” characterized by the most serious of criminal conduct.

During Senate debate, opponents of the bill asserted that its definitions were so broad that it would apply to defendants with 20 times the intelligence level of mentally retarded people. They contended that the real motive of the bill’s backers was to eliminate the death penalty in California.

But Sen. Jack Scott (D-Altadena), whose adult son was killed in a gun accident, appealed for compassion. “Please, let’s not get so bloodthirsty that we think as a society that there is something wonderful about putting to death somebody who has an IQ of 65,” he told Republican foes of the bill.

Meanwhile, as platoons of lobbyists armed with cell phones and extra batteries roamed the Capitol looking for last-minute deals, lawmakers hit the stretch drive toward the scheduled adjournment of the 2002 session at midnight Saturday. But because a settlement of the state budget stalemate continued to elude the Assembly, there was talk that the session would continue beyond the adjournment date.

In the Assembly, some deals came together Thursday.

After years of negotiations between home builders and lawyers, the lower chamber passed a compromise on construction-defect lawsuits that both sides hailed as a triumph. The legislation (SB 800 by Burton) would provide specific definitions of what can be considered a construction defect in California, covering everything from plumbing to windows.

Most significantly for developers, it would grant an absolute right to repair a problem before they could be sued. And for homeowners, it would allow suits for prospective damages, thus preventing them from having to wait for, say, a roof to collapse before being able to take legal action.

“This bill represents all parties coming together,” said Assemblyman Darrell Steinberg (D-Sacramento), who represented the lawyers in the talks. “We all know we have a huge shortage of housing in this state. Developers are simply not building single-owner-occupied multifamily housing in California” because they fear lawsuits, he said.

“It is a good bill that will bring about additional affordable housing construction,” said Assemblyman John Dutra (D-Fremont), who had advocated for the other side, adding that the right to repair “is very important for the builders.”

The Assembly also approved legislation that would extend the time that plaintiffs have to file wrongful death or personal injury lawsuits from one year to two. California is one of only four states with a one-year statute of limitations.

The measure (SB 688), also by Burton, would additionally extend the time a legal opponent has to respond to a motion for summary judgment from 28 days to 75.

And in an abrupt switch of tactics, the United Farm Workers of America fashioned an alternative bill as a substitute for its embattled measure that would impose binding arbitration on growers and the union when contract talks get deadlocked. The latest plan would substitute nonbinding mediation for the enforced arbitration, a feature that aides to Davis have said gave him concerns.

Union spokesman Marc Grossman said the latest bill, which cleared its initial committee on the favorable votes of Democrats, included suggestions from aides to Davis. But growers called it perhaps even worse for farmers than the binding arbitration bill that is awaiting action by the governor.

“This bill is a farce. The sponsors have shamefully disguised binding arbitration in this bill by calling it mediation,” charged Mike Webb, Western Growers Assn. lobbyist.