CHAPTER TWO: HOW MANY MENTALLY RETARDED OFFENDERS DID HE EXECUTE?

           

            Most legal theorists believe that mentally retarded citizens can’t be held as responsible for their actions as citizens of normal intelligence. Most retarded citizens think like young children. They are often eager to please, and can be coerced or tricked into committing a crime by their cohorts. Mentally retarded adults often have a dim sense of right and wrong, both because of their severely limited intelligence and because many of them come from abusive childhood homes. Sometimes, they don’t quite understand what it is they’re doing while they’re doing it. Once arrested, they will often confess to any crime available, just to please authorities. One mentally retarded death row inmate in Texas, Doil Lane, crawled into the lap of his interrogator after confessing a murder to him.[1]

            For these reasons and more, the American Bar Association, American Psychological Association, and the American Association of Mental Retardation have long opposed executing mentally retarded offenders. And finally, they have won their victory. As of May 2002 there were only two countries in the world which formally executed mentally retarded citizens – Japan and the United States of America. But on June 20, 2002 the Supreme Court removed America from that list, declaring that the execution of mentally retarded citizens was prohibited under the Eighth Amendment as “cruel and unusual punishment.”[2]

            Unfortunately, that ruling came too late for several Texas inmates under the governorship of George W. Bush.

            Execute him because he’s mentally retarded. Oliver Cruz had a rather troubled childhood. His father was an alcoholic and drug abuser. His mother had a history of mental illness, was hospitalized for depression several times, and was diagnosed with chronic schizophrenia. Mr. Cruz himself was committed to a mental hospital as a young man. As a child, school testing measured his IQ at 64 (100 is average, below 70 is considered mentally retarded). As an adult, he read and wrote at below the third grade level. He dropped out of school after failing the seventh grade three times.[3]

            Oliver Cruz and his friend Jerry Kemplin raped and murdered a young woman, Kelly Donovan in 1988. Jerry Kemplin was older and not mentally disabled, and agreed to a reduced sentence of 65 years in prison if he testified against Oliver Cruz. Mr. Cruz had confessed to the crime after “waiving his rights,” a term which in all likelihood he could not understand.

            At trial, Mr. Cruz’s mental retardation was not challenged by the prosecutor. Instead, the prosecutor agreed that Mr. Cruz was “not very smart” and went on to argue that his mental retardation (not the prosecutor’s term) made him a stronger candidate for execution:

The defense may tell you that, you know, he is not very smart. And they may try to show you that this should be some mitigation of punishment....But the main issue that you have to look at, does the fact that the defendant was intoxicated or the fact that he may not be very smart, does that make him any less dangerous? Does that make him any less of a threat to the rest of society? . . . And I would submit to you that it doesn't make him any less dangerous. I would submit to you, it's the opposite. It makes him in fact, more dangerous. It's part of the outlook of Oliver Cruz that makes him what he is. And that's not going to change. And society cannot take the chance of having him on the streets again, or having him out in prison where there's other people that associate with him, also, for their safety.[4]

The jury agreed with the prosecutor that Oliver Cruz’s mental retardation made him even more dangerous, and they sentenced him to die. The Texas Court of Criminal Appeals also agreed, as well as the Texas Board of Pardons and Paroles and the U.S. Supreme Court. Finally, Lieutenant Governor Rick Perry agreed, since Governor George W. Bush was out of state campaigning for the Presidency. Gov. Perry denied any reprieve, and Oliver Cruz was executed on August 9, 2000.

            He started drinking at a very young age. Terry Washington’s mother drank a lot, and she did it while she was pregnant with Terry Washington. As a result, he was born with fetal alcohol syndrome, a condition characterized by organic brain damage. He was raised as one of 11 children in a two-room shack with no running water and no electricity. The children were beaten by their single mom who was occasionally hospitalized in mental institutions. Mr. Washington's mental retardation was so severe that it was immediately recognized when he entered school, and tests throughout his short life showed an I.Q. ranging from 58 to 69. His reading never advanced beyond the second-grade level. His communication skills were at the level of a 7- year-old and his social skills at that of a 5-year-old.[5]

            Just as he had been left to fend for himself as a child, so he was left to fend for himself as an adult. But the retardation and violent childhood produced a violent adult, and Terry Washington stabbed Beatrice Huling to death in 1987 for $628. His lawyer presented no mitigating evidence of his upbringing, and was unaware that he could have hired a mental health expert for a pre-trial examination. Mr. Washington was found guilty and sentenced to death. Post-trial medical evaluations concluded that he had no idea what had been going on around him during his legal proceedings.[6]

            But mental retardation was not grounds for clemency in the Texas capital punishment system. Governor George W. Bush denied any reprieve to Mr. Washington. On May 6, 1997 Mr. Washington’s lawyer told him of the impending execution, fearful of how he would react. Mr. Washington just smiled and told her that the guards were real nice and the food was real good. He was dead thirty minutes later.

            Opportunity missed? There were more mentally retarded offenders executed during Bush’s governorship besides these three. Charles Boyd was executed on August 5, 1999, with an IQ of 64. Sadly, not only could these executions have been stopped, but the original murders could have been prevented as well if the Lone Star State would only care for her weakest. “Texas has never adequately funded mental health services, yet it is perfectly willing to execute people for crimes that good mental health care might have prevented,” editorialized the Dallas Morning News.