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Retarded still may be executed

A lawmaker says he will drop a bill that would have allowed the issue of retardation to be raised before sentencing.


© St. Petersburg Times, published April 5, 2000

TALLAHASSEE -- An effort to prohibit Florida from executing the mentally retarded appears to have failed for this year.

The issue is so emotionally charged that lawmakers cannot vote against the measure, even if they want to, said one legislator.

"The idea of executing the mentally retarded creates the image of the innocent Down's syndrome child -- that's the perception that the public will have, although that's not the case," said Rep. Randy Ball, who chairs the House Crime and Punishment Committee.

"The problem is if you vote against it, the political backlash from those who will largely be uninformed on the issue could be very bad," said Ball, R-Mims.

Ball said Tuesday he will kill the bill by refusing to hear it in his committee. His statement came on the same day the Senate Criminal Justice Committee unanimously passed the bill.

House Speaker John Thrasher, who also has concerns about the bill, plans to defer to Ball's judgment, said Thrasher spokeswoman Katie Baur. Twelve of the 38 states with capital punishment prohibit the execution of the mentally retarded.

The bill that passed the Senate committee Tuesday would have allowed people convicted of a capital crime to raise the issue of retardation before sentencing. A judge would hold a hearing to determine whether defendants met a three-pronged test.

First, their IQ must be 70 or lower. Second, they must demonstrate a significant deficit in adaptive behavior, meaning they have problems with basic skills such as communicating, caring for themselves and work. Third, they must prove that the onset of mental retardation began before the age of 18.

The standard of proof would be high. Moreover, they also would have to show that their conduct at the time of the crime was related to their mental retardation.

Attorney General Bob Butterworth, whose office is responsible for arguing against death penalty appeals, supported the bill. The Florida Catholic Conference also supported it, as did a human rights group and the Association for Retarded Citizens of Florida.

"The death penalty should be reserved for the most culpable," said Chris Schuh, the association's executive director. "You cannot be retarded and be the most culpable."

But prosecutors said it could open a Pandora's box of appeals by death row inmates.

That also was Ball's concern. It is unclear how many death row inmates could qualify under the proposed definition.

"The problem is in the vagueness of the term mentally retarded and the way that it might be loosely applied," he said.

But Florida basically uses the same test to judge whether a child is mentally retarded and needs special schooling, or whether a mentally retarded adult qualifies for state aid. Ball said the reason he supports using a definition to identify the retarded in one case but not another has to do with the victims of crime.

"There are families who are missing a family member and who deserve justice," he said.

Ball said severely mentally retarded people already can use the insanity defense to prove they are not competent to stand trial and did not understand their actions. Mental retardation also may be weighed in the sentencing phase of the trial, although it may be outweighed by aggravating circumstances connected with the crime.

Schuh, however, said that mentally retarded people often can be found competent to stand trial.

Gov. Jeb Bush has not taken a position on the bill, according to his spokeswoman Elizabeth Hirst. But one of his top advisers on the death penalty has strong feelings on the matter.

"The mentally retarded issue is fraught with legal danger," Brad Thomas wrote in a Jan. 10 e-mail. "I have not yet seen any convicted murder(er) sentenced to death come close to being "retarded.' "

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