Texan Justice
Proponents of a Texas law to ban the execution of the retarded have done a skillful job of public relations, and of obfuscating the truth.

By James A. Cooley, senior correspondent, “ The Lone Star Report.”
June 11, 2001 1:30 p.m.

he 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.