Tell Bush: This Has To Stop!

Executing The Mentally Handicapped Under Review

By: Marlene Martin

Earl Washington was easy pickings. So when police in Virginia were unable to solve a difficult rape and murder case, they looked to Earl Washington to help.

Agreeable and eager to please, with the mental age of a young child, Washington was quick to confess.

It mattered little to police and prosecutors that Washington didn’t have basic facts straight about the crime. Washington said the victim was black; she was white. He said she had been stabbed two or three times; she had been stabbed 38 times. He said he had kicked in the door; the door was found intact.

The cops were willing to overlook all this to clear a difficult case from their books. So Earl Washington was convicted and sentenced to death, mainly because of the confession he signed. He spent 18 years behind bars before he was finally exonerated through DNA testing and released in February of this year.

How many Earl Washingtons are on death row? How many mentally handicapped individuals were coerced into confessing to crimes that they had no part in -- and then condemned to death for it?

Criminal justice experts estimate that 10 percent of the 3,700 people on death row are mentally handicapped. That means that hundreds of prisoners are on death row awaiting execution with the mental age of a pre-teenager.

Yet the U.S. remains one of the only countries in the world that allows the execution of the mentally handicapped. The U.S. Supreme Court specifically upheld executions of the mentally impaired in 1989 when it heard the case of Texas death row prisoner John Paul Penry.

At his trial, Penry couldn’t read or write, name the days of the week or months of the year or even say how many nickels are in a dime. But Supreme Court justices ruled that it wasn’t against the Constitution to send people like Penry to their death.

But that ruling is now in question. Earlier this year, the Supreme Court agreed to hear the case of a North Carolina death row prisoner named Ernest Paul McCarver, to decide whether or not the mentally handicapped should be executed.

In the opinion in the 1989 Penry v. Lynaugh case, Justice Sandra Day O’Connor wrote: "While a national consensus against the execution of the mentally retarded may someday emerge reflecting the ‘evolving standard of decency that marks the progress of a maturing society,’ there is insufficient evidence of such a consensus today."

By all indications, that "maturing" has taken place. In 1989, only two states barred the execution of the mentally handicapped. Today, the figure stands at 15 -- with Missouri banning the practice in May and Jeb Bush’s Florida in June. Even in Texas -- the death penalty capital of the country -- the state house and senate passed similar legislation, though it was vetoed by Gov. Rick Perry.

The Supreme Court probably won’t make a decision in the McCarver case until next spring, and legal experts say that it’s unlikely that any prisoner who is mentally handicapped will be put to death while the issue is still pending.

In the meantime, we have to keep up the pressure. We saw how effective this can be when Bush traveled to Europe this spring. Protesters confronted him at several stops, causing the Texecutioner a lot of embarrassment.

Bush even had the gall to declare, "We should never execute anyone who is mentally retarded." Of course, as governor of Texas, Bush opposed legislation that banned executions of the mentally handicapped. He signed off on the execution of six prisoners with IQs below 70 (the general threshold measuring mental retardation) -- one-sixth of the number of mentally handicapped individuals who have been executed since 1976.

Bush and his aides tried to cover themselves by claiming that they thought the issue of mental retardation should be left up to juries to decide. But that’s wrong. For one thing, juries may not get the information they need to make this decision. As Ruth Luckasson, a legal expert on the issue of mental retardation, writes: "Good investigations are not conducted in these cases, so even what should be the routine collection of an individual’s school and medical records is not done. The families of people with mental retardation are not interviewed, and family medical histories are not taken."

Keeping up the pressure is key.

In Europe, protesters held signs that read, "Compassionate Killer" -- giving Bush the label he so richly deserves.

Let’s make sure Bush and Co. hear our message -- the killing of the mentally retarded is wrong and has to be stopped.