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IQ Debate Unsettled in Death Penalty Cases

Friday, June 29, 2007

IQ Debate Unsettled in Death Penalty Cases

The Supreme Court ruled against executing the mentally retarded, but defining that group has proved difficult.

By David G. Savage, Times Staff Writer
June 11, 2007

YORKTOWN, VA. - Five years after the Supreme Court declared in Atkins vs. Virginia that the death penalty was unconstitutional for those who are mentally retarded, Daryl Atkins still sits on death row.

In August, lawyers for the man who won the landmark ruling will try again to convince a jury here that he is indeed mentally retarded and therefore deserves a life term in prison, not execution.

Three times before, the county prosecutor has persuaded juries here to condemn Atkins to die, and she expects to win a fourth time as well. "Daryl was a slow reader. He was lazy, and he came to school stoned. But until he committed this murder, no one thought he was mentally retarded," said Eileen M. Addison, the prosecutor.

His case is not unique. Though the high court found that there was a "national consensus" against executing the mentally retarded, it left it to the states to decide which murderers would qualify for that exemption.

Determined prosecutors have had little trouble convincing juries that a convicted killer with a low IQ is not necessarily retarded. The definition of retardation is imprecise; test results can vary, giving prosecutors an opportunity to produce additional scores and other evidence to make the case that an inmate is actually smart enough to die.

The result is that the Supreme Court's ruling has had less effect than many had foreseen.

"There has been more resistance than I expected," said University of New Mexico law professor James Ellis, an expert on mental retardation who represented Atkins before the Supreme Court.

A few states moved off of death row several inmates who had IQ scores in the 60s or low 70s, he said. But states where capital punishment has strong support, including Virginia and Texas, have let juries decide. And "it's an uphill fight with the jury" to establish mental retardation, Ellis said.

In 2002, he told the high court there were no reliable numbers on how many of the nation's more than 3,000 death row inmates were mentally retarded. Some experts predicted several dozen inmates would qualify for the exemption. Human Rights Watch said the number could be as high as 300.

Since then, said Richard Dieter, executive director of the Death Penalty Information Center in Washington, only a handful of inmates that he knows of have been found to be mentally retarded and had their death sentences commuted.

The Atkins decision "has had an effect, but not a sweeping effect," said Dieter, whose center opposes capital punishment. "His case is emblematic because in a lot of states, it has resulted in case-by-case litigation."

California has the largest death row population, 660 inmates. "We have not seen a substantial impact," said Dane Gillette, the state coordinator for capital punishment. "We anticipated some would claim to be retarded, and it has been raised in a handful of cases. But it has not yet resulted in a determination of retardation" requiring that the inmate be removed from death row, he said.

The greatest effect of the court's ruling may have been in cases that followed. Some prosecutors probably chose not to seek the death penalty when a murder suspect had low IQ scores, legal experts said.

Before the Atkins decision, the Supreme Court's major rulings on mental retardation came in the case of Johnny Paul Penry, a Texas murderer who was said to have the mental age of a 6 1/2 -year-old.

In 1979, at age 22, he raped a woman and stabbed her to death with a pair of scissors. He confessed and was sentenced to death. The fact that he could not read or write or name all of the days of the week made little impact.

But when his execution drew near, the high court in 1989 and again in 2001 overturned his death sentence on the grounds that Texas law had wrongly prevented jurors from fully weighing his mental disability as a reason for leniency.

Nonetheless, Penry sits on death row in Texas. In the fall, he will go before a jury for a fourth time. As with Atkins, this trial will focus exclusively on whether he is retarded.

Polk County prosecutor Lee Hon also expects to prevail again.

"Penry is a not-too-bright, sexually violent predator," Hon said. "It's true he never made it out of first grade. He was educationally deprived. But when he got into the Texas prison system, he began to achieve a lot. He learned to read and write. He had a calculator in his cell. We had a lot of testimony to that effect."

The brutal murder of the 22-year-old woman still hangs over the case, said John Wright, Penry's lawyer. "We offered a deal that would keep him in prison for life, but they won't take it," Wright said. "The prosecutors are bound and determined to kill him."
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