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Still, some death-penalty supporters dismiss the proposed ban as a desperate tactic of defendants with no other appeals. Michael Rushford, president of the Criminal Justice Legal Foundation, a pro-death-penalty advocacy organization based in Sacramento, said he is opposed to execution of the mentally retarded. But, he said, ”We are curing a problem that doesn‘t exist.“ Echoing an argument made by the governor of Texas last year when he vetoed a legislative ban on execution of the retarded, Rushford said the courts screen out people with mental retardation long before trial and that no one with mental retardation has ever been executed in the United States. ”We haven’t gotten there yet,“ he said. ”If we had, it would be on the front page of The New York Times -- the picture of the guy drooling.“
Luckasson bristled at such a characterization. ”Mental retardation is not defined by saliva,“ she said. Her organization has identified at least 35 people with mental retardation who have been executed in the United States since 1976, including the now-infamous case of Ricky Ray Rector, the Arkansas inmate who, on the way to his death, asked to have his pie saved so he could eat it later. ”Most people have a pretty good sense of what mental retardation is,“ Luckasson said. ”And most people do not think people with mental retardation should be executed.“
Tell that to the California state Legislature. California‘s death row is by far the nation’s largest, home to nearly one in six of all condemned inmates nationwide, but state pols are so fearful of a constituent backlash that a bill proposed by Assemblywoman Dion Aroner (D-Berkeley) last year banning execution of the mentally retarded could not even make it out of committee.
Hans Hemann, Aroner‘s legislative director, ascribes this reticence to several factors. The Legislature seems to be suffering a lingering hangover from the Rose Bird era, when the California Supreme Court justice presided over a panel that reversed dozens of death-row convictions, only to be run out by voters. And, unlike most states, California’s death-row law was not enacted by the Legislature, but passed by a voter initiative. So any change would have to be made at the ballot box. ”Any opposition to the death penalty whatsoever is going to be painted by your opponents as soft on crime,“ Hemann said. ”If I‘m Joe Blow, a moderate Democrat, I don’t want to be running for re-election when an ad comes out saying I supported this so-called soft-on-crime initiative.“
And finally, none of the 10 inmates put to death in California since the state resumed executions after a 25-year hiatus has been clearly mentally retarded. ”Because we have been slower in executing people in California, we haven‘t had it in our face yet,“ said Wendy Peoples, co-chair of the death-penalty committee of California Attorneys for Criminal Justice. ”Sooner or later we will be forced to confront it.“ Unless, that is, the Supreme Court beats us to it.
Sara Catania has been selected for a 2002 Crime and Communities Media Fellowship with the Open Society Institute, a New York--based nonprofit dedicated to reforming the criminal-justice system. This story is one in a yearlong series of articles on death row funded in part by the fellowship.