By Hillel Aron
By Joseph Tsidulko
By Patrick Range McDonald
By David Futch
By Hillel Aron
By Dennis Romero
By Jill Stewart
By Dennis Romero
The confusion is compounded by the muddling of mental retardation and mental illness, Aranella says. Mental retardation is a result of irreparable brain damage -- a person who is retarded can never be "cured," made smarter, or even treated to alleviate the condition. Mental illness can come and go, be treated or controlled with medication. A mentally ill person can be brilliant and still suffer from extreme psychiatric debilitation. "One of the problems is that people who have mental retardation are very good at acting as if they understand," said James H. Barnes, a defense attorney who has represented non-capital clients with mental-retardation claims. "Attorneys aren't really trained to recognize mental retardation and aren't adept at it."
In some cases, mental retardation might be misinterpreted or missed entirely because of extreme drug use. That may have been the case with Lavell Frierson, whose 22 years as a condemned man makes him one of the longest-serving inmates on California's death row. As a child growing up in South-Central L.A., Frierson could not tie his shoes. At 7 he suffered a major concussion and was hospitalized for three days. At 11 he started sniffing glue, and in seventh grade, test scores identified him as mentally retarded. By age 20 he was living in a flophouse near the airport and using PCP every day. When an airline employee came to the door looking for a prostitute, Frierson pointed a gun at him, got into his car with him and shot him in the head.
Frierson has consistently maintained that he cannot remember the shooting. Frierson's death sentence was overturned -- twice. The first time, the state Supreme Court held that Frierson's attorney had failed his client by not investigating the "diminished capacity" defense. At the guilt phase of his retrial, his attorney made no opening statement, put on no witnesses and presented no defense. In the third trial, the court refused to reissue a check it had lost that was to pay investigators and experts -- including mental-health experts -- for the defense. Frierson's attorney ended up paying the costs himself. Frierson was sentenced to death.
IN THE 18 STATES THAT ALREADY barred the execution of the mentally retarded, the legal definition varies significantly. IQ is the most readily recognizable signpost of retardation. Some states, including Kentucky, Maryland, New Mexico, Nebraska, North Carolina, South Dakota, Tennessee and Washington, allow an IQ no higher than 70. Others give the courts more discretion, requiring only a "significantly subaverage intellectual functioning." These states include Arizona, Connecticut, Florida, Georgia, Indiana, Missouri, New York and Kansas.
Those skeptical of the ban on executing the mentally retarded say it will encourage a rush to dumbness among the condemned. "There are a lot of death-row inmates with IQs under 100," said Dane Gilette, head of death-penalty litigation in the state Attorney General's Office. "I can tell you one thing for sure, the collective IQ of death-row inmates is going to drop 20 or 30 points overnight. That's a somewhat cynical outlook, but it's definitely a possibility."
In death-penalty states that already banned execution of the mentally retarded, that concern has not been borne out. The response has been strong, but there have been few complaints that inmates who were not actually retarded won relief. Those who are spared are then usually sentenced to life in prison without parole. In Georgia, which in 1988 became the first state to halt such executions, 27 of 102 inmates awaiting execution at that time claimed mental retardation. Seven of those inmates have been removed from death row. Fifteen cases are pending. In North Carolina, which banned such executions last year, 40 of the state's 226 inmates have made mental-retardation claims.
If anything, claims of mental retardation may be underreported. Though court records show that inmate Jesse Gonzalez has a "below 70" IQ, his attorney, Robert Berke, said that Gonzalez is so mortified at the thought of drawing attention to his compromised mental condition that they are hoping to win the case without mentioning it. Pasadena defense attorney Robert Amadon, who has handled cases of inmates with mental retardation, said being labeled retarded carries a serious stigma. "If you're in prison, any weakness that you have is dangerous, actually dangerous," he said. "The last thing in the world you want to have known is that you're an easy mark."