Tuesday, June 12, 2001

Governor has week to decide fate of bill on capital punishment

Barring execution of mentally retarded persons is up to Texas Gov. Rick Perry

AUSTIN - As the nation focused on the execution of Timothy McVeigh on Monday, a debate continued in Texas about using the death penalty for convicted capital murderers with mental retardation.
   At issue is a bill passed by the Legislature that would bar the execution of inmates who are considered mentally retarded. Gov. Rick Perry has until Sunday to decide whether to veto the bill, let it become law without his signature or sign it into law.
   Supporters say Texas should not execute inmates who are considered mentally retarded, but opponents argue that the state already has safeguards in place to prevent such executions.
   "The bill is under review by the governor's office,'' said Perry spokesman Gene Acuna. "He has said he wants to make sure that whatever his decision, it's in the best interest of Texas.''
   The bill would make life in prison the maximum sentence for a mentally retarded person convicted of capital murder. The legislation allows defense attorneys to ask the jury to decide during the punishment phase of a trial if the defendant is mentally retarded. If the jury determines the person is mentally retarded, the court will sentence the person to life in prison.
   The defense also could ask for a judicial hearing on the issue if the jury decides that the person is not mentally retarded.
   Support for a veto
   Dianne Clements, president of Houston-based Justice for All, which supports the death penalty, is urging Perry to reject the measure.
   Clements said the law is unnecessary because there already are procedures in place to protect those unfit to stand trial. "If they are not competent, they don't stand trial. It's that simple,'' she said.
   Clements said the bill's supporters are misrepresenting the issue by portraying some convicted murderers as profoundly mentally retarded and unable to understand their actions.
   "The people who are tried and convicted and sentenced to death are very guilty, very calculating and understand fully what they did,'' she said. "They know right from wrong without a doubt.''
   The bill's main supporters in the Legislature - state Sen. Rodney Ellis, D-Houston, and state Rep. Juan Hinojosa, D-McAllen - made a public plea on the last day of the session asking Perry to sign the legislation.
   Perry has suggested that he might veto the bill and wait for the U.S. Supreme Court's ruling on a North Carolina case, which could decide whether executing a person who has mental retardation violates the U.S. Constitution's ban on cruel and unusual punishment.
   "I see little point in hiding behind the U.S. Supreme Court's robes and waiting for them to act,'' Ellis said.
   Some supporters of the execution ban say a recent U.S. Supreme Court ruling is evidence that Perry should sign the bill. The Court recently overturned the death sentence of Johnny Paul Penry, an East Texan who is said to have the mind of a child.
   That decision, however, did not address the constitutionality of the state's death penalty or of executing mentally retarded inmates. Instead, the court ruled that a judge gave jurors confusing instructions on how to weigh Penry's intellectual capacity during the punishment phase of his 1990 murder trial.
   Nevertheless, death penalty opponents say the ruling sends a signal to states.
   "The Court's ruling highlights the difficulty that the criminal justice system has experienced in fairly assessing the guilt and moral responsibility of mentally retarded defendants in capital cases," said Diann Rust-Tierney, director of the American Civil Liberty Union's Capital Punishment Project. "As an increasing number of states and the vast majority of nations around the world recognize, execution of the mentally retarded is incompatible with the standards of a civilized society regardless of the procedures used.''
  
  

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Ty Meighan is chief of the Scripps Howard Austin Bureau. You can reach him by phone at (512) 334-6640 or by email at meighant@scripps.com.

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