IQ as a Matter of Life, Death

Before he went to prison, Anderson Hawthorne drove a car, held down a job, cared for a mentally ill brother and did chores in his family’s home in South-Central Los Angeles.

But Hawthorne also was regarded as slow in school, where he made it only to the ninth grade. He mispronounced simple words and had difficulty reading.

At age 12, he couldn’t count pocket change or read street names, and knew his ABCs only up to the letter M. He could write, but just his name and the date, and didn’t know his address or telephone number.

His IQ has been measured at 86 and 71; the average IQ is 100.

Now his life may depend on a question soon to be decided by California’s highest court: Is Anderson Hawthorne mentally retarded?

Hawthorne, 44, lives on California’s death row -- sentenced in 1986 for two gang murders in Los Angeles.

Among his 640 fellow death-house residents are at least 30 other inmates who, their lawyers say, are mentally retarded. Many more are expected to make similar claims as they obtain lawyers.

Those claims could lead to the biggest exodus from death row in California since the state high court last struck down California’s death penalty -- later reinstated -- in 1976.

Three years ago, the U.S. Supreme Court ruled that executing the mentally retarded violated the Constitution’s ban on cruel and unusual punishment.

Dozens of people around the nation already have left death rows as a result, and many more cases are pending, said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. Instead of being executed, convicted killers found to be mentally retarded are being sentenced to life without the possibility of parole.

But the high court’s ruling left uncertain who is truly retarded. Each state is supposed to develop its own rules.

The call in some cases is not an easy one. Measurements of intellectual shortcomings are not always precise, and can vary by test and tester and even change over time.

“When you get on the borderline of mental retardation, it is an interpretative job,” said UC Davis psychology professor Keith Widaman. “There are times when it is essentially a judgment call, and I could understand it going either way.”

Experts don’t agree completely on what mental retardation means. The American Assn. on Mental Retardation has changed the definition 10 times since 1908.

Until 1973, an IQ of less than 85 was thought to show mental retardation. Recognizing the disability’s stigma, the association lowered the threshold to 70.

The change was spurred in part by a successful class-action lawsuit in California that found schools had placed a disproportionate number of black children in programs for the retarded.

Now, the association says an IQ of up to 75, allowing for a margin of error in testing, indicates mental retardation if a person also shows a significant problem with behavior, including conceptual, social and practical skills, before the age of 18.

Experts say the mentally retarded often deny their disability and can mask it. In court they may appear contemptuous of proceedings when in fact they have no understanding of what is happening around them.

“Because it is a stigma, they have fought tooth and nail their whole lives to find ways to hide from people that they have any deficits in their intelligence,” said Lynne Coffin, a former state public defender and now executive director of a California association of criminal defense lawyers.

And even attorneys can be fooled. Coffin said she has had clients who have hidden from her their inability to read.

“What the general public doesn’t understand,” she said, “is that most prisoners do not want to bring up the issue of mental retardation.”

The stigma is so great that state Senior Assistant Atty. Gen. Dane Gillette believes it will limit the number of death row prisoners who claim to be mentally retarded.

“I understand there are at least some inmates who absolutely will not condone this claim,” Gillette said. If their sentences were reduced to life without parole, retarded inmates would return to a general prison population where their disability might make them vulnerable, the prosecutor said.

Because the mentally retarded have strengths as well as weaknesses, the disability can go undetected.

A study of 50 retarded adults, starting in 1959 and with follow-ups until the 1970s, found that some adults with IQs ranging from 50 to 70 had blended into society. They groomed themselves, worked, drove and married.

One man with an IQ of about 50 was illiterate and asked someone else to fill out a job application for him.

He landed a job as a Teamster truck driver and kept it, said UCLA professor of anthropology and psychiatry Robert E. Edgerton, who did the study in Southern California.

A mentally retarded woman Edgerton followed was at one point engaged to marry a man who did not realize she was retarded. Rather than reveal her disability, she broke off the relationship and never married, the professor said.

“The common misperception by many people is that people with mild mental retardation are really different than the rest of us,” said Widaman, who served on a national research council committee on mental retardation. “And that is not really true.”

Scores on IQ tests may reflect the varied expertise and neutrality of the examiners. A psychologist hired by the defense may be more likely to find retardation than an expert hired by the prosecution.

Denis Keyes, a professor of special education at the College of Charleston in South Carolina, was asked to determine whether convicted murderer Robert Alton Harris, who had killed two San Diego teenagers, was mentally retarded before his execution in 1992. Keyes said he found that Harris had an IQ of 86.

“He did not qualify, and I backed off that case,” Keyes said. “But they found two psychologists who said he was retarded.”

Even if the examiners are unbiased, a person’s IQ score may not be static. It can change by as much as 10 to 15 points in a lifetime, Keyes said.

In fact, for reasons that are not well understood, overall IQ is rising at a rate of three points every 10 years, researchers believe.

As they consider Hawthorne’s case, in which a ruling is expected any day, state Supreme Court justices will have to sort through all those complications.

In ruling against executing the retarded, the U.S. Supreme Court held that such executions were forbidden by the Constitution’s ban on “cruel and unusual” punishment. But the justices also said they were reluctant to come up with their own definition of retardation.

In California, the Legislature responded to that ruling by passing a bill banning execution of people who have “significantly subaverage intellectual functioning” along with deficits in behavior before the age of 18.

But the law applied only to future defendants, not those already on death row.

Defense lawyers and prosecutors generally have been able to reach agreement before trial on whether defendants facing capital charges are among the 2% to 3% of the population that is mentally retarded, lawyers said.

But after someone has already been tried and sentenced to death, the state’s investment in executing the inmate is much greater, and the claims are harder fought.

In California, prosecutors have conceded that only two inmates of the nearly 640 on death row may be mentally retarded and should have hearings to examine their mental abilities. The state is fighting the rest of the petitions.

California prosecutors would like the state Supreme Court to define retardation using a precise IQ level, such as 70 or below, in addition to deficits in life skills.

“We believe you have to adhere to some number, and whatever number, you have to stick to it,” said Deputy Atty. Gen. Robert S. Henry, who is representing the state in Hawthorne’s case.

Henry also would like the state high court to limit the number of inmates who would be entitled to court hearings on the question of retardation. The court could use the Hawthorne case to set ground rules for similar cases.

“If you are going to allow everybody on death row to receive a hearing on the basis of one doctor who is willing to say he is mentally retarded, be prepared for 600 hearings,” Henry said.

Henry said Hawthorne suffers from learning disabilities, not mental retardation, and observed that Hawthorne also has claimed to be a victim of post-traumatic stress and fetal alcohol syndrome.

“We are convinced this guy is nowhere near being mentally retarded,” Henry said. “He is a gang leader who killed two Crips.”

Hawthorne’s lawyer and experts, who have interviewed his early schoolteachers, relatives and employers, disagree. Deputy Federal Public Defender Harry Simon, who represents Hawthorne, declined to permit his client to be interviewed.

The test that indicated Hawthorne could have an IQ as high as 86 was a group test that should not be used for diagnostic purposes, Simon said. Hawthorne took the test with other children when he was 7 or 8.

Before he killed two rival gang members in 1982, Hawthorne shined shoes and worked for a man who rehabilitated buildings, Simon said.

The former boss told defense investigators that “I had to tell him everything to do, but he worked hard.”

As for Hawthorne’s being a wily, cunning gang leader, as the prosecution contends, Simon said, “How much did it really take to go up to a group of people and shoot into it? Certainly if he was easy to dupe, how hard would it be for fellow gang members to say, ‘Here is a gun, go shoot these people’?”

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Death row inmates seeking IQ review

The inmates who have mental retardation claims pending before the state Supreme Court constitute at least 5% of the death row population. Here are most of those inmates, by the year they arrived on death row:

*--* 1995 Ernest Jones 1995 Ignacio Tafoya 1994 Delaney Marks 1993 Vicente Benavides 1993 Eric Hinton 1993 Michael James Huggins 1992 Sergio Ochoa 1992 Richard Stitely 1990 John Lee Holt 1990 Robert Young 1989 Stanley Davis 1989 Jack Farnam 1989 Noel Jackson 1989 Clarence Ray 1989 George Smithey 1989 David Welch 1988 Tracy Dearl Cain 1988 Jose Arnaldo Rodrigues 1988 Richard Turner 1987 Teofilo Medina Jr. 1986 Antonio Espinoza 1986 David Fierro 1986 Anderson Hawthorne 1986 Horace Kelly 1984 Jesse Andrews 1984 Robert Lewis 1983 Donald Miller 1980 Donald Griffin 1980 Michael Dee Mattson 1980 Marcelino Ramos 1980 Melvin Turner

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Sources: California Department of Corrections, Federal Public Defenders Office

Los Angeles Times