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Advocates: Mentally retarded need By Kevin Royko and Daniel Welch Anthony Porter gained notoriety in 1999 when he became the 10th man to be released since 1977 from Illinois' Death Row for a crime he did not commit. Porter was perilously close to death - he was to be executed within 48 hours - when his lawyers won a temporary stay from the Illinois Supreme Court so they could gather evidence to prove Porter was mentally retarded. At that time, Illinois law only required that for defendants to be eligible for the death penalty, they had to understand the charges against them and the punishment they faced. Share your thoughts on this story on the ChicagoDefender.com message board. Ironically, that extra time allowed a group of Northwestern University journalism students to obtain a videotaped confession from another man that he - not Porter - killed a young couple in 1982 in a South Side park. But as it turns out, Porter was mentally retarded. Then 44, Porter scored a 51 on an IQ test, a number roughly equivalent to the mental age of a 6-year-old and well below the yardstick score of 70 used by the American Association on Mental Retardation. According to published reports, during the IQ test Porter asked the examining psychologist what the word "execution" meant. Three years later, in 2002, the U.S. Supreme Court ruled that executing mentally retarded criminals was "cruel and unusual punishment" prohibited by the Eighth Amendment to the U.S. Constitution. The court noted that mentally retarded people "face a special risk of wrongful execution" due to their limited ability to understand and dispute the charges against them. But the court left it up to each state to set its own standards on who could be considered mentally retarded. Spurred partly by the recommendations of former Gov. George Ryan's Commission on Capital Punishment, the Illinois General Assembly in 2003 unanimously voted to set IQ levels of 75 and below as evidence of mental retardation. The new law also specified that the judge, not a jury, will ultimately determine the defendant's mental capacity, and that a mental competency hearing will take place before the trial - unlike in Porter's case, when the hearing was granted two days before his scheduled execution. "It is actually one of the most progressive [laws] in the nation because it sets the IQ standard so high, and it's structured to allow the judge in the case to weigh in on whether the defendant meets the standard," said Jane Bohman, director of the Illinois Coalition to Abolish the Death Penalty. But legal experts say the controversy of executing the mentally retarded is far from resolved. "We certainly don't think [the Illinois law] is any panacea on the issue of the death penalty," Bohman added. "But it is a step in the right direction." The difficulty centers on the fact that many defendants with mental retardation are not only unable to assist in their own defense, but often cannot understand the consequences of their actions. According to some experts, relying only on an IQ test to determine mental retardation is dangerous because scores can fluctuate by as much as 15 points, depending on variables like the emotional state of the defendant and how the test is administered. An IQ test is designed to measure the ability to understand concepts and solve problems. Sections of the test often include logic and language skills, as well as spatial perception and memory ability. While some members of the legal community see the required score of 75 as an improvement over the previous standard, they still feel the IQ test is a potentially flawed method for determining eligibility for execution. "The danger is that the test could show someone with an IQ of 77 who has a very low score on the judgment portion of the exam, but scores higher in other areas to give them a high enough score to be executed," said Kristin MacRae, president of the Chicago Association for Retarded Citizens. While acknowledging the potential for errors, Stephen Richards, deputy defender with the Death Penalty Trial Assistance Division, said that setting the bar at 75 neutralizes those mistakes. "The problem with these cases is there's always a fudge factor or margin of error," said Richards, whose state agency provides legal assistance to poor defendants facing the death penalty. "The [state standard] tries to take into account that margin of error so that nobody with an IQ under 70 will face the death penalty." But Bohman cautioned that just raising the score does not make the capital punishment system error-free. "I don't think anything guarantees that a mentally retarded person won't be executed," she said. "The prosecutors are clearly going to be aggressive when going after borderline [mentally retarded] defendants in death penalty cases." At least one medical expert also disagrees with the way an IQ test measures a defendant's intelligence. "It focuses too much on the number," said Diane Goldstein, of the Chicago-based Isaac Ray Forensic Group, "and it can lead the examiner to ignore other factors of a person's intelligence." Bernard Murray, chief of criminal prosecutions for the Cook County State's Attorney's Office, said prosecutors know the tests aren't always reliable when they decide whether to seek the death penalty. "The number is not the only determining factor we use," he said. "We also look at other parts of the defendant's life, like educational background and life behavior. Can they get around on their own? Stuff like that." In Porter's case, prosecutors alleged he faked his retardation. They said Porter was able to play chess with the Death Row inmate in the next cell by maneuvering a mirror so he could see into the cell - an activity hardly possible for someone with the mental capacity of a 6-year-old. Bohman expressed doubt that prosecutors weigh both sides in high-profile crimes. "When they're facing an ugly murder case, [prosecutors] are going to want to have the death penalty on the table," she said. "It's the politicization of the process that sometimes trumps the medical facts of a case." On Dec. 6, the Will County State's Attorney's office appealed a judge's ruling that a former Bolingbrook man was mentally retarded and therefore could not be sentenced to death if convicted of killing his next door neighbor. The woman was sexually assaulted and beaten to death with a baseball bat. The man scored between 64 and 72 on one IQ test and between 70 and 79 on a second test, leading the judge to rule out the death penalty. Regardless of what experts think of the reliability of the Illinois standard, safeguarding the rights of the mentally retarded is a continuing concern. "You're talking about some of the most vulnerable people in society, " MacRae said. "We should be doing everything we can to protect them, not execute them." Randall Jarrett and his attorneys might agree. In 2004, Cook County prosecutors sought the death penalty against Jarrett after he was convicted of murder for stabbing and beating a man with a hammer. Jarrett had previously scored a 75 on an IQ test in Alabama after a theft conviction in 1996. Because that score would have qualified him for protection under the Illinois law, prosecutors asked the judge to order Jarrett take the test again. Timothy Cummings, who worked in the forensic clinical services division of Cook County Circuit Court, testified that Jarrett scored an 85 on the second test. But Jarrett's attorney claimed Cummings twice added words to Jarrett's answers to boost his score. Cummings, who reportedly attributed the discrepancies to a copy machine error, left the forensic services office two months later. Efforts to contact Cummings were unsuccessful. Cook County Circuit Judge Kenneth Wadas threw out Jarrett's second score, declaring Jarrett mentally retarded and ineligible for the death penalty. He was sentenced to life in prison in May 2004. Despite Jarrett's reprieve from a lethal injection, the question of how to ensure the mentally retarded are treated fairly remains. "When people with mental retardation end up in the criminal justice system, it's just very scary to me," MacRae said. "I think, as a society, we can do a whole lot better." Kevin Royko and Daniel Welch are reporters for the Medill News Service. |
