Tex. Ban on Executing Retarded Is Rejected

By Paul Duggan
Washington Post Staff Writer
Monday, June 18, 2001; Page A02

AUSTIN, June 17 -- Texas Gov. Rick Perry (R) vetoed a bill that would have barred the death penalty for convicted killers who are mentally retarded, saying today that juries in the nation's leading execution state should be allowed to make those decisions on a case-by-case basis.

In rejecting legislation that President Bush also opposed when he was Texas governor, Perry bucked a nationwide trend toward protecting mentally retarded killers from execution. Agreeing with Bush, Perry said that taking death penalty decisions away from jurors in such cases "basically tells the citizens of this state, 'We don't trust you.' "

In 1989, when the Supreme Court ruled that such executions were constitutional, only two states had laws barring the death penalty for mentally retarded murderers. Among the 38 states that allow executions, 15 exempt mentally retarded killers, including Florida, where Gov. Jeb Bush (R) last week signed a bill similar to the one Perry vetoed this afternoon. The Supreme Court also has agreed to revisit the issue in a North Carolina case.

Mentally retarded killers also are exempted from execution in the federal justice system.

"This legislation is not about whether to execute mentally retarded murderers," Perry told reporters in announcing his veto at the state Capitol today. "It's about who determines whether a defendant is mentally retarded in the Texas justice system."

Although "we do not execute mentally retarded murderers [in Texas] today," Perry said, there is no statute barring the practice. Supporters of the bill said several prisoners on Texas's death row fit the generally accepted definition of mentally retarded.

The bill passed the biennial Texas legislative session that ended Memorial Day weekend, and Perry waited until the last minute to reject the measure. It would have become law automatically if he had not acted today.

"It gives us the appearance of being barbaric," the bill's main sponsor, state Sen. Rodney Ellis (D), told reporters. "Governor Perry had a historic opportunity to show the world that we are not only tough on crime but fair and compassionate, as well. He missed that opportunity."

The measure was one of several bills debated by the Legislature that were aimed at tempering the use of capital punishment in Texas, where 247 prisoners have been put to death since 1982. On Friday, Perry signed a bill designed to improve the quality of court-appointed attorneys for indigent defendants. Lawmakers said that bill resulted from the intense criticism of Texas's indigent-defense system during Bush's presidential campaign last year, and that other bills were the result of similar scrutiny of Texas's executions.

Several other measures aimed at reducing executions were considered this year, although they failed to pass.

In Texas, jurors in the penalty phase of a capital murder trial must consider a convicted killer's intellectual capacity in weighing possible reasons to spare the defendant a death sentence. But nothing prevents a mentally retarded killer from receiving such a sentence.

Under the vetoed bill, if jurors determined that a convicted killer was mentally retarded, the defendant would have been sentenced to life in prison. There is no life-without-parole law in Texas, so the defendant would have been eligible for parole in 40 years.

If jurors decided that the defendant was not mentally retarded, defense lawyers could have petitioned the judge to overrule the jury. The judge would have based the decision on an evaluation of the defendant by two independent mental health experts.

The Supreme Court ruled in 1989 that executing mentally retarded killers did not violate the Constitution's ban on cruel and unusual punishment. The decision came in the case of Johnny Paul Penry, sentenced to death in Texas for the 1979 murder of Pamela Moseley Carpenter, younger sister of former Washington Redskins kicker Mark Moseley. But in a more recent appeal by Penry, the court ordered a new sentencing proceeding, citing procedural errors by the judge.

The effect of Perry's veto today will be negated if the North Carolina case under review results in a reversal of the court's 1989 ruling in the Penry case.

2001 The Washington Post Company