Pass law to spare retarded inmates

DYCKMAN E-mail: Click here Archive

By MARTIN DYCKMAN

© St. Petersburg Times, published April 13, 2000

Gov. Jeb Bush said this week that he would not execute anyone who is mentally retarded, which is welcome news to those who believe Florida never should. But Florida still needs a law saying so.

One reason is that Bush won't be governor forever, and his successor might not be so enlightened. He is a liberal compared with some of the ambitious Republican leaders in the House.

Another is that Florida's governor can't grant clemency on his own. The Constitution requires consent of half the elected Cabinet (that's three votes now, two after Jan. 7, 2003) and there's no guarantee he will always get them. When Gov. Lawton Chiles wanted to spare Danny Doyle, a retarded man who had run out of appeals in 1992, the best he could get was a vote to postpone Doyle's clemency hearing until 2020.

Doyle remains on death row, apparently invisible to the governor's Capital Cases Task Force, which reported this week that there are "no moderately or severely retarded persons on death row in Florida." In fact, defense experts had testified that he had a mental age of 6 or 7 and an IQ of less than 55. One of the doctors the state hired to refute that turned out to be an ex-convict (manslaughter, assault and escape) and an active neo-Nazi.

Those aren't the only reasons why the Legislature needs to act.

Bush's statement that "people with clear mental retardation should not be executed" raises the question of how he would know it when he sees it. That should be for the Florida Legislature to define, as the lawmakers of 13 other states already have.

And if at the end of the day he would spare someone who is retarded, why put the taxpayers to the expense of state and federal appeals that wouldn't take place if there were no death sentence to begin with? That's hardly a conservative use of their tax dollars.

In rejecting a blanket prohibition on execution of the retarded, the governor's task force did recommend -- unanimously -- that retardation become a specific mitigating factor that judges and juries must consider in deciding between death and life in prison without parole. Currently, defense attorneys may raise it, but without the weight that the task force recommendation would impart.

According to Scott Makar, a Jacksonville lawyer and task force member who voted against a blanket ban, its proposal for a statutory mitigator "is about as non-controversial as vanilla pudding." But even that is going nowhere so long as House leaders refuse to let the Crime and Punishment Committee meet for fear -- or so they say -- that its members would bow to public pressure in behalf of the retarded.

There is room to wonder whether the House leaders are being steered by something more than their own superior wisdom.

I am referring to their possible concerns for the presidential campaign of Texas Gov. George W. Bush, who opposed protection for the retarded when his legislature was considering it last year. The bill passed the Senate, 23-7, but died on adjournment in the House.

It would reflect poorly on Bush's campaign for his brother's legislature to pass the same sort of bill he opposed. The embarrassment would be especially acute if the 5th U.S. Circuit Court of Appeals, in a pending case, allows Texas to execute its most noteworthy retarded defendant, Johnny Paul Penry.

Penry, 43, who is said to have the mental capacity of a 7-year-old, figured in the U.S. Supreme Court's controversial 1989 decision that his execution would not be "cruel and unusual" within the meaning of the Constitution. As only two states had acted at the time to spare the retarded, Justice Sandra Day O'Connor found for the majority that "there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment." The court did find, however, that Penry's jury had been effectively barred from considering his retardation and ordered a new hearing at which he was again sentenced to death.

The Texas Legislature, which doesn't meet this year, is expected to have another go at changing the law in 2001. Keith Hampton, a lobbyist for the Texas Criminal Defense Lawyers Association, said this week that he expects it to pass with little opposition. George W. Bush, he added, did not actively lobby against it last year.

"It seems to me that it's all go for banning the execution of the mentally retarded in Texas," he said. "I'm not hearing any opposition except from a fringe right wing group that's fairly ignorant."

© St. Petersburg Times. All rights reserved.