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Justice takes a step backward in Texas

by Cesar Chelala

NEW YORK — Texas Gov. Rick Perry’s decision to veto legislation that would have banned the execution of mentally retarded criminals is a setback to the elimination of a barbaric policy that has almost universal repudiation. This decision comes at the same time as the release from prison — where he spent 22 years — of Jerry Frank Townsend, a mentally retarded man who had confessed to six murders that he didn’t commit. DNA evidence was able to do for him what the justice system was unable to do: prove his innocence.

According to Miami authorities, Townsend has an IQ of between 50 and 60. An IQ below 70 classifies a person as mentally retarded. Mental retardation — a condition that is present since childhood — is different from mental illness, which may appear at any time, although the two may coexist in the same person.

There are several difficulties involved in taking the mentally retarded through the justice system. One of them, as exemplified by Townsend’s case, is that, in their desire to please, the mentally retarded may confess to crimes that they didn’t commit. In addition, they are less able to help attorneys in preparing their own defense, and their apparent lack of emotion during the proceedings plays against their own interests. Given these facts, the possibility of executing innocent people is high.

There is a strong movement throughout the United States to pass laws that prohibit the execution of the mentally retarded. While Perry states that Texas has not executed any mentally retarded prisoners, opponents of that measure say that six inmates with IQs of 70 or lower have been executed since 1990. Since the U.S. Supreme Court reinstated the death penalty in 1976, 34 people who were known to be mentally retarded have been executed in the U.S. As many as 300 mentally retarded convicts currently await execution in death row.

U.S. President George W. Bush has recently declared that, “We should never execute anybody who is mentally retarded. And our court system protects people who don’t understand the nature of their crime they have committed nor the punishment they are about to receive.” However, when he was governor of Texas he declined to halt the execution of a mentally retarded man, and opposed a legislative ban on this kind of execution.

Presently, 25 states permit the execution of offenders with mental retardation, while 13 states and the federal government have passed legislation prohibiting it. During 1999 and 2000, the U.N. Commission on Human Rights adopted resolutions urging nations that allow the death penalty not to impose it on prisoners suffering from any form of mental disorder. Human Rights Watch opposes capital punishment in all circumstances as inherently cruel, and as a violation to life and to the fundamental dignity of all human beings.

In June 2001, nine veterans of the U.S. Foreign Service called for an end to the death penalty for the mentally retarded, and the European Union has strongly criticized the execution of people with mental retardation in the U.S. Even China, which has the highest execution rate in the world, has banned the execution of the mentally retarded. Only the U.S. and Kyrgyzstan permit the execution of mentally retarded people.

A wide-ranging reconsideration of the death penalty for people with mental retardation is required. The death penalty does not deter criminals, it is subject to a high risk of error, and it is imposed on people unable to fully understand the consequences of their actions and to adequately collaborate with their attorneys for their proper defense. As Jamie Fellner, an Associate Counsel for Human Rights Watch stated, “Executing adults with the minds of children is nothing short of barbaric.”