Ok Legislative committe members and others. The US. Supreme Court has just ruled (6-3) that executing the mentally retarded consitutes Cruel and Unusaul punishment. Where do we go from here?

I'm sure that an unusually large percentage of defense attorneys and politicians will sleep easier now.

We need to review the opinion closely, then get a game plan together. We also need to see how this is going to affect pending death row cases and which defendants fit into the "Mentally Retarded" catagory. Is an IQ of below 70 going to be the magic number?

The simplest solution is to add a special issue at punishment that simply asks whether the jury finds the defendant, at the time he committed the capital murder, was mentally retarded. If the answer is yes, then he gets life in prison. If the answer is no, then they proceed to the other special issues. It would be nice if the burden of proof were on the defendant and was by clear and convincing evidence.

The issue should be included only if raised by the evidence.

There likely should be a definition of mentally retarded. It doesn't seem that the Supreme Court has given us a constitutional definition (apparently they couldn't divine the nation's evolution on this subject). The definition should not be limited to an IQ. It should permit a jury to consider other factors.

In addition, there should be a requirement that a defendant give pretrial notice of the intent to say he is mentally retarded, leading to the trial court appointing a medical expert to conduct an examination, just as we do on competency and insanity.

We should not agree:

to let a judge decide the issue (before or after trial);

to let a defendant raise it for the first time after trial;

that IQ alone determines mental retardation.

By the way, how long do you think it will be before this gets expanded to include any mental illness?

I think JB's right on as to the answer. Since the CCA upheld the use of extra-statutory special issues after Penry, anyone with a trial in progress would be well advised to try something like that. Would it be safer, though, to give them a preponderance burden consistent with other affirmative defenses?

As to mental illness, we can defend against the ones who are okay when on their meds but choose not to take them. After all, there's no treatment for mental retardation, but we can argue there is for your average psychotic maniacal murderer.

I hate how the Court conveniently forgot that protection of society from savage murderers is an important policy underpinning of the death penalty.

Here is a prediction:

Opponents of the death penalty will now say that Texas should have life without parole so that the mentally retarded are removed from society forever.

Plus, if they want to put on the retardation defense, doesn't Lagrone mean that we get to have a State's expert examine the defendant and run tests? Yeah, the defendant will try to flub it, but malingering can be detected.

Could we counter calls for LWOP by putting capital murderers with retardation in a retardation unit? To me, if it is wrong to execute them, it is also wrong to lock them up for life with regular old criminals. Maybe some sort of maximum security unit managed under the auspices of MHMR?

I think we need to prevent LWOP at all costs.

We are going to have to be pro-active this next legislative session on both Mental Retardation and life without parole. I agree with John's ideas on the special issue for mental retardation. We need to push our proposals and not just sit back and play defense.

Interesting that John R. should mention Penry. He is being retried on punishment as we speak.

Yeah, and I hear Penry's claim of retardation ain't so cut and dried, either.

Don't go off half cocked on the legislation, guys, please?! From my first reading of the opinion, its a royal load of horse manure. Sez they'll leave to the states how to "develop appropriate ways to enforce the constitutional restriction" but they look like they're tripping all over themselves to say <70 is retarded, period. It's not even clear at all what they expect to happen to Atkins -- the case is remanded for proceedings "not inconsistent" but apparently the State's expert said Atkins was faking the retardation anyhow. It's clear that when they talk about retardation, they accept that it has to onset before age 18 -- the rest is mud, and overbroad or careless legislation for a quick fix could put us in appellate limbo on a broad spectrum of capital cases for years. Note that they even put Texas into their group of states in the "consensus" against execution of retarded defendants because the legislature passed that bill last session, even though it was vetoed! And please watch what you put on this website -- them damn DEfense lawyers and zealots are probably printing it all out to use against you in the next legislative debate, or in their motions . . . .

Yesterday, the trial judge on the Penry retrial said NO to a life sentence, leaving it to further litigation. For the story, go to:

http://www.chron.com/cs/CDA/story.hts/metropolitan/1464040

I sure hope Penry is healthy, because his case is going to be litigated for a long time. No doubt , there is going to be a Penry III, and maybe Penry IV.

Another way to do this would be to use the current mitigation special issue. You could simply instruct the jury that a defendant has a mitigating issue as a matter of law if he was mentally retarded at the time of the offense.

For some reason, Sen. Ellis is already pushing for a pretrial decision (meaning by a judge) on the issue of mental retardation. Why should such a fact-based issue be decided before trial and by a judge?

Surely the burden is on the defendant, since effectively the court has said a certain class of persons, committing the offense and therefore otherwise subject to either of the two penalties prescribed, must be exempted from one of those penalties. By analogy, I assume if one wants to claim he was less than 17 years at the time of the offense (so that he is exempt under 8.07(c), P.C.), he must offer proof of that fact.

Otherwise, the state must prove that the defendant is not MR (in every dp case). No one likes proving a negative and that would effectively create a presumption of retardation. As far as the certainty level--better stick with preponderance (and hopefully avoid the idea that the state must carry the ultimate burden of persuasion).

Pre-trial determination by the judge might work similar to competence issue (a threshhold you cross before you get to the jury but not a substitute for ultimate resolution by the jury where there is any substantial evidence). If judge were the only fact-finder, then you may end up with a problem after the decision in Ring v. Arizona (which I predict will go against the state).

Since the consensus has only recently formed, isn't there a problem with retroactivity. Is it cruel to carry out a sentence that was not cruel when pronounced? In 1972 they struck down all sentences because of the factors used to determine death-worthiness in all of the cases. This seems different to me; especially where the issue was talked about at trial (as a mitigating, although not controlling, factor).

[This message was edited by Martin Peterson on 06-22-02 at .]

Did the states enact legislation prohibiting MR executions because they figured that's what the court was going to do anyway or did they decide for themselves the level of cruelty that they could tolerate? It is an interesting process of ratifying amendments to the constitution.

Governor Perry previously vetoed Sen. Ellis' bill that would have given the judge power to declare a defendant mentally retarded and ineligible for the death penalty. In the Houston Chronicle, he has again declared he would veto such a bill because it takes the decision away from the jury.

He also has described the manner in which Texas law already recognizes mental retardation as a mitigating issue at several stages of the trial (competency, issue of intent at guilt, special issue at punishment). Sounds like Governor Perry has a keen appreciation of our criminal justice system.

Candidate Sanchez, on the other hand, has stated that he would have signed the Ellis bill. Do the math.

Atkins seems to leave it up to the states to determine:

(1) who decides if D is MR -- judge or jury (although the post-Apprendi case could make this question moot);
(2) what MR actually means; and
(3) when that MR decision is made -- pre-trial, during trial, or after trial.

These are really the same issues debated last session, and there was much debate over "who" and "when". As for the "what" -- a definition of MR -- that was resolved last session without much debate by using the dfn. of MR already found in the Health & Safety Code, Sec. 591.003. Under that section, MR =

(i) significantly subaverage general intellectual functioning [= IQ < 70, generally] that is
(ii) concurrent with deficits in adaptive behavior and
(iii) originates during the developmental period [usu. = before age 18].

This is similar to, but not exactly the same as, the two definitions (from the AAMR and the APA) that the Court cited in their opinion. One potential problem in using this definition may be determining a standard or definition for "deficits" in adaptive behavior and how many of them are required before someone qualifies as MR. I imagine they are hashing that out in the Penry case right now.

As for "who decides", that probably depends upon the "when" issue (or vice versa, depending upon your priorities). Possible suggestions last go-round included:

- pre-trial hearing before judge only;
- pre-trial hearing before jury, like w/ competency;
- during punishment phase of trial, before jury;
- during punishment phase of trial, before jury, with a second post-trial hearing before judge if requested by D (this was HB 236, vetoed by Perry);
- post-trial hearing before judge (or post-trial administrative hearing), like w/ competency to be executed.

Q: Can anyone think of another way to do it, or does this cover all the bases?

Along the same line as when to submit deadly weapon issue-- submit at guilt phase, then no need for punishment phase. Not saying that is a good option, but at least a logical one.

Take care Shannon, John will object if your messages get very long.

From the perspective of economy of resources, pre-trial to a jury (like competency) seems to make a lot of sense. Once you get the MR issue determined, if the jury finds MR, you eliminate the individual voir dire and punishment phase @ the trial on the indictment. Given the budgets of many smaller counties, it would be a shame to go through the time and expense of a death penalty case only to get to punishment and have a determination that the death penalty is not available.