Move Sure to Spare Inmates

Convicted killer Johnny Paul Penry, a longtime resident of Texas’ death row, loves coloring books and believes in Santa Claus.

Fellow inmate Doil Lane hates to be without his crayons.

“He sends me pictures all the time,” said Austin lawyer William Allison, who has represented Lane for five years. “Pictures of firetrucks and flowers and ice-cream trucks. All of his letters start with the exact same sentence: ‘How are you today. I am find [sic].’ ”

Penry, whose IQ scores range from 50 to 63, and Lane, who psychiatrists say has the mental capacity of a 6- to 8-year-old, may have finally won reprieves Thursday when the U.S. Supreme Court ruled that executing the mentally retarded is cruel and unusual punishment.

The ruling is sure to spare some among the more than 3,700 prisoners on the nation’s death rows, although nobody knows for certain how many.

California has 603 men and women on death row, and the Department of Corrections says that at least two are “developmentally disabled,” a category that includes mental retardation as well as autism and epilepsy. As a result of a federal district court order, the state is expected to assess the mental capability of all of its death row inmates by the end of the year.

Some defense attorneys have estimated that as many as 6% of California’s death row prisoners are mentally retarded, but “no one knows” for sure, said Nathan Barankin, a spokesman for Atty. Gen. Bill Lockyer.

Beyond saving the lives of some of the condemned, Thursday’s ruling is expected to set off a scramble in 20 states, including California, that have not previously prohibited the execution of retarded inmates.

The states will have to define mental retardation and handle what prosecutors expect will be a deluge of appeals from inmates who claim that they fit the bill.

“The opinion left it very much in the hands of the states how to deal with enforcement of this new restriction,” said Ward Campbell, capital case coordinator for the attorney general’s office in Sacramento.

He predicted a new wave of litigation in death penalty jurisprudence, causing delays in a system “that already is very delayed and congested.”

Lawyers said it will be up to the state Legislature or the state Supreme Court to decide the criteria for determining whether an inmate is mentally retarded.

Defense lawyers already have reason to have clients who they suspect are mentally impaired undergo tests: Retardation is considered a mitigating factor for defendants who face a possible death penalty.

In some cases, however, inmates conceal their disability from their lawyers; in others, some attorneys are not especially diligent in their representation.

No mentally retarded inmate has been executed in California since 1992, 15 years after the death penalty was reinstituted, although evidence was presented that Robert Alton Harris, who was put to death in April 1992, had fetal alcohol syndrome, defense lawyers said Thursday.

Bills to prohibit the execution of the mentally retarded in California have failed in part because of opposition from disability rights groups, which did not want persons with low IQs to be stigmatized.

States that now ban execution of the mentally retarded don’t always agree on who they are.

Arkansas, for example, says there is a presumption of mental retardation if an inmate has an IQ of 65 or below, but that presumption can be rebutted by the prosecution. New Mexico and some other states set the standard at an IQ of 70 or below.

“Obviously, this decision will stop the execution of someone,” said Elisabeth Semel, director of the death penalty clinic at UC Berkeley’s Boalt Hall School of Law. “The question open to debate is who is mentally retarded and how is it defined.”

Footnotes in Thursday’s U.S. Supreme Court opinion suggested that the high court would find acceptable a definition of mental retardation that included individuals with an IQ of 70 or below and maladaptive behaviors that began before the age of 18.

That would exclude death row inmates who are mentally incompetent because of illness or injuries sustained as an adult.

One of the best-known of such inmates was Rickey Ray Rector, whose petition for clemency came before Bill Clinton when he was governor of Arkansas and running for president. Clinton denied the petition and rushed home from his primary campaign for Rector’s execution.

Rector’s attorneys argued that the inmate had no concept that death was permanent. His last actions, they say, prove that they were right.

Rector ordered pecan pie for his final meal and decided to save the dessert to eat after his lethal injection.

But Rector was not mentally retarded. He had part of his brain removed after he shot himself in the head before his final arrest.

“If you are defining retardation as developing before the age of 18, obviously this would not fit,” said Jeff Rosenzweig, an attorney in Little Rock who defended Rector.

Both houses of the Texas Legislature last year passed a bill that would have barred the execution of mentally retarded inmates, but Gov. Rick Perry vetoed the bill.

In the case of Penry, the U.S. Supreme Court has twice overturned his death sentence. In the second reversal, the court declared in 2001 that Texas jurors’ failure to fully consider his retardation was a reason to spare him. His murder conviction still stands, and a jury decided in April that he was competent to assist his defense in a third hearing on whether he should be sentenced to death.

Texas inmates considered mentally retarded who have been put to death anyway in recent years include Mario Marquez, 36, who was executed for killing his estranged wife and her niece. His IQ was 66.

President Bush, who was Texas governor at the time, rejected Marquez’s request for clemency in 1995.

Robert McGlasson spoke to his client, Marquez, before he entered the death chamber. Strapped to a gurney, Marquez told his lawyer: “I want to be God’s gardener and take care of the animals.”

McGlasson said Thursday that he eventually learned how to communicate well with his client.

“If I just pretended I was talking to a boy of 7 or 8 years old, my communication with him would go a lot more smoothly,” McGlasson said. “He talked about his favorite food and how much he missed his mommy and daddy even though his parents were very abusive.”