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New York Times has waded into the debate now raging in Texas
over a proposed ban on executing the mentally retarded.
State Sen.
Rodney Ellis (D., Houston), who sponsored HB 236, the bill to ban
the practice, was the author of a June 2 guest editorial in the
Times that claimed that Texas had executed six mentally retarded
offenders since capital punishment was restored in 1977. Ellis also
said that all the active opponents to the proposed law were from
the "farthest of the far right."
The Times
then ran a June 5 news article on the topic, followed by an editorial
the next day urging Texas Gov. Rick Perry to support the bill.
The editorial
pointed out that Perry had presided over the execution of a confessed
rapist and murderer who was "said to have been incapable of
learning beyond the sixth-grade level…." This was, in
the view of the Times's editorial board, a "deplorable
action."
Ellis held
a June 5 press conference at the Texas capitol and charged that
a veto on the proposed bill would make Texans look "barbarous."
A University of Texas at Austin law professor who supports the bill
warned that the nation and the world would continue to see Texans
as a "bunch of blood-thirsty, cretinous yahoos."
Given all this,
how could anybody be against HB 236?
Get ready for
a shock: A lot of people, not all of whom are "cretinous yahoos,"
do raise intelligent objections to this bill.
At the top
of the list of opponents is the Texas County and District Attorney's
Association (TCDAA). This group had held a press conference immediately
prior to Ellis's to raise their objections.
"It's
a bad piece of legislation," stated TDCAA President David Weeks.
The group challenged
both the bill and Ellis's contention that Texas had already executed
six retarded individuals since the reinstatement of capital punishment
in 1977. The prosecutors examined the executions case by case and
found that the group of six included, for instance, a man who had
killed his brother-in-law for insurance money. Another had raped
and murdered a 76-year-old nun.
Ellis later
admitted that others had supplied the names of the six supposedly
retarded killers to whom he had referred in his Times Op-Ed;
he confessed that he hadn't known the details of any of the individual
cases.
While the TDCAA
was generally opposed to the concept of changing existing law, the
final version of HB 236 that had emerged from conference committee
drew particular scorn. "This bill is something that I don't
think any prosecutor would agree with," Weeks said.
Nor do the
crime-victims' groups. The Houston-based victims' rights group,
Justice for All, held a press conference on June 6 calling for the
veto of the law. They brought along relatives of murder victims
who had been killed by those now claiming to be mentally retarded,
including the infamous Johnny Paul Penry.
Penry is the
subject of the recent U.S. Supreme Court case involving capital
punishment and the mentally retarded. He has already had two trials
over his rape and murder of Pamela Moseley some 22 years ago. The
Supreme Court's recent decision finding that his last jury received
inadequate instruction likely means a third trial will occur.
These developments
inform some of the strong opposition to HB 236, which basically
falls into three main categories: whether there is an actual need
for a new law; whether the final version of the proposed law is
fatally flawed; and whether it will — despite containing language
to the contrary — become retroactive. Here is a quick rundown of
the arguments raised by the opponents to the bill.
Need
for the Law
Those supporting
HB 236 say that if it is wrong to execute a child, it is just as
wrong to execute someone with the mind of a child. They say that
current law contains no outright ban on executing the mentally retarded
and such persons can, and have been, sent to death.
But the law's
detractors argue that existing laws already provide multiple safeguards
against those who are truly mentally deficient, for whatever reason,
from facing the death penalty. At the top of the list is the requirement
that the person be found competent to stand trial in the first place.
Also, a conviction for a capital crime requires that the defendant
acted with both knowledge and intent. This standard includes knowing
the difference between right and wrong, and understanding the consequences
of one's actions.
Prosecutors
note that a single juror in the sentencing phase who thinks that
mental retardation is a mitigating factor can already block a death
sentence.
All told, Texas
already has six different safeguards in place to block the execution
of someone who is genuinely incompetent.
Opponents of
HB 236 also question whether anyone with the "mind of a child"
could have performed the calculated and shockingly brutal offenses
— including multiple rapes and murders — that some of these offenders
committed. One such supposedly retarded convict — a multiple murderer
and rapist — had taken the precaution against capture of cutting
his home phone lines; Penry himself had deliberately stabbed his
second rape victim to death to keep her from being able to "squeal"
on him afterwards.
It
weakens the jury system
Prosecutors
and victims' groups also say that HB 236 changes mental retardation
from being a mitigating factor that juries may consider to a condition
that, if established, constitutes an automatic bar to the death
penalty. They also attack the bill for entitling the trial judge
to overrule a jury in cases where the jury finds that mental retardation
was not evident, but where the judge disagrees with this finding.
In these cases, the judge could hold a separate hearing afterwards,
with an ensuing "battle of the experts," and then could
issue a ruling based upon a weaker "preponderance of evidence"
standard as to whether or not the defendant was retarded.
Retroactivity
The bill's
proponents have stated repeatedly that the bill is not retroactive.
They point to explicit language contained within it and a statement
of intent given from the Senate floor to bolster his claim.
But prosecutors
don't buy it.
"To say
this bill is not retroactive totally ignores the experience in other
states in dealing with this issue," said Weeks. Specifically,
prosecutors point to the experience of Georgia, which tried to pass
a similar law that was designed to be exclusively prospective. The
Georgia supreme court then forced a retroactive application and
opponents fear a similar bout of judicial activism in Texas.
Further justification
for such concerns arose when the bill's House author, Rep. Juan
Hinojosa (D., McAllen), appeared to anticipate just such a judicial
outcome at Ellis's May 28 press conference.
"I expect
the court to make that decision," Hinojosa said. "Our
position is that it is not retroactive."
However, Hinojosa
broadly hinted that the courts would probably find otherwise.
"I think
that if the governor signs this bill into law, you will find that
those who are in the penitentiary right now, who are facing the
death penalty and who are mentally retarded, in my opinion, will
not be executed," Hinojosa said
Ellis followed
up by stressing, "Look, [it is] the courts that would make
that decision, and it's important to note that we're not saying
to let these people go." They would, Ellis noted, still serve
life sentences.
Asked to elaborate
on this topic, Ellis asked reporters if lawmakers should take the
position that they should never change the law just because the
courts might make it retroactive.
The
question of image
There is no
doubt that the bill's proponents have done a better job of public
relations than have the bill's opponents. Even the opponents admit
as much.
"Claiming
that Texas executes mentally retarded persons reduces a very complex
issue to an emotional sound bite," states Dianne Clements,
president of Justice for All. "Bill supporters have attempted
to paint a mental image of docile, loving, profoundly mentally retarded
individuals who, out of touch with reality or recognition of their
crime, are being executed."
The public
sees sympathetic media portrayals of child-like individuals on death
row and hears the calls for compassion. Penry's lawyers, for instance,
often describe their client as a man who believes in Santa Claus
and who colors with crayons while he languishes on death row.
But victims
see things differently. Ellen Moseley May, the niece of Penry's
victim, marvels at the media's depiction of her aunt's killer.
"When
I hear how the world sees John Penry, when I read the articles about
a boy trapped in a man's body, it never ceases to amaze me that
people actually believe that about John Penry, because that's not
the John Paul Penry I know."
"The John
Paul Penry I know left his home on the day of October 25, 1979,
knowing that he was going to my aunt's house to rape and murder
her," May says.
May was equally
blunt about whether concerns with Texas's image should trump what
she sees as a matter of justice.
"I'm a
Texan and I've been directly affected by it — and I don't care what
New York thinks about Texas. I care about what I think about Texas,"
May states.
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