Life-or-Death Testing

Mentally disabled prisoners and the state prison officials who watch over them are in a bind that only the Legislature can fix.

Here's how the mess developed: Just over a year ago, a federal appeals court ruled that state prisons had to abide by the federal Americans With Disabilities Act, building ramps for inmates confined to wheelchairs and assigning staff members to help blind or mentally retarded inmates who can't fill out paperwork on their own.

To figure out who had these needs, wardens began giving a basic intelligence test. Here's where the first glitch arose. Nearly 80% of the 600 men and women on San Quentin's death row refused to take the IQ test -- no doubt on their lawyers' advice.

A Supreme Court decision last June, which banned the execution of the mentally impaired and required states to decide who is retarded, probably figured in that decision. It also spurred California lawmakers to begin debating what the standard should be in capital cases. Which tests should attorneys use? What scores or other evidence should prove the defendant is retarded and not legally responsible for his actions?

Estimates of the retarded prisoners on death row range wildly, from 4% to 50%. That much uncertainty, in the wake of the Supreme Court's decision, is enough to fuel every murderer's dream of cheating death.

A capital trial eats up $1 million more on average than other criminal trials because state law requires that a defendant have two attorneys, daily trial transcripts and other expensive protections. So it's not just to protect accused people with mental handicaps that state officials need a better test.

Two proposals are now before lawmakers. One, by Senate President Pro Tem John Burton (D-San Francisco), adopts a clinical definition of retardation that combines a low IQ score with evidence of continuing "deficits" that first appeared in childhood. Prosecutors are more comfortable with Sen. Bill Morrow's (R-Oceanside) bill, which includes the same factors but creates a presumption -- which defendants can rebut -- that any defendant with an IQ higher than 70 points is not retarded.

California law already directs jurors, in deciding between life behind bars and a death sentence, to consider whether "the capacity of the defendant to appreciate the criminality of his conduct ... was impaired as a result of mental disease [or] defect."

Morrow would have jurors decide a defendant's guilt before considering impairment, while Burton wants them to know whether someone is retarded at the start of the trial.

The important matter now, however, is coming up with a clearer standard of what constitutes mental retardation. Absent that, the Supreme Court's decision will only encourage every defendant with borderline intelligence to appeal all the way to Washington. That's neither cost-effective nor just.

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