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Test Phobias

Six months after the U.S. Supreme Court banned the execution of mentally retarded prisoners, doctors at San Quentin are gearing up to give IQ tests to all 622 inmates on the nation’s largest death row.

Prison officials say the mass screening of condemned inmates -- the first of its kind in the nation -- will help identify inmates who qualify for extra help in their daily lives and who may need to be protected from predatory prisoners. But death-row advocates are crying foul.

They say the test, which is a truncated version of a complete IQ test and can be taken in less than 10 minutes, cannot accurately determine whether an inmate is retarded. Faulty results could make it harder to keep their mentally retarded clients from being executed.

“Testing for mental retardation has to be done very carefully,” said James W. Ellis, a law professor at the University of New Mexico who argued the case against execution of the mentally retarded before the Supreme Court. “This sort of drive-by testing can‘t be accurate. It’s just going to gum up the works.”

The way the testing was announced only deepened the attorneys‘ concerns. In a memo from the a prison dated October 29 and addressed to “all inmates on condemned row,” associate warden D. Wooten announced that “Testing will begin in October.” When attorneys for some of the inmates learned of the plan, they requested an immediate halt to the testing. “It came as quite a shock to us -- the fact that they were trying to do the testing in such a hurried fashion,” said John Grele, a San Francisco--based attorney who has five clients on death row. “It sure looks like what they were trying to do was fly under the radar, without notifying any lawyers or giving the inmates a chance to refuse testing.”

Vernell Crittendon, a spokesman for San Quentin, denied that the prison has any underhanded motive. “There’s no flying under any wire,” he said. “We‘re just trying to do the screening in a timely fashion.” In response to the attorneys’ protest, the prison postponed the testing until January.

The test the prison plans to use is called a “Quick Test.” Inmates who are not fluent in English will be given a nonverbal form of the test. Any inmate who scores below an 80 IQ on the test will be given further testing.

Attorneys say the screenings could keep inmates who are mentally retarded on death row. They point out that even if a client is found to be retarded and therefore in need of special housing away from abusive inmates, state law prohibits San Quentin from moving condemned prisoners off of death row. “They‘re not involving us, so we don’t know what procedures they‘re using,” said Margo Rocconi, a deputy federal public defender in Los Angeles who has filed an appeal asking that one of her clients be removed from death row because he is mentally retarded.

Last Friday, the Prison Law Office, a nonprofit prisoners’-rights advocacy organization, sent a letter to the prison asking that condemned inmates be given the choice to opt out of the testing and any other mental impairment evaluations. “For some prisoners there may be benefits to being identified. For others there‘s a risk that the prison doctors aren’t going to make a fair evaluation,” said Heather MacKay, staff attorney for the Prison Law Office. “Our opinion is it‘s up to the prisoner and their appellate counsel to make the call on whether they should participate in the testing.”

Terry Thornton, a spokeswoman for the California Department of Corrections, called the concerns of the condemned inmates’ attorneys unfounded. San Quentin doctors and other staff members have undergone special training to accurately conduct the screening, she said. She acknowledged that condemned inmates who are found to be mentally retarded or otherwise mentally impaired will not get special housing. But, she said, they will receive other kinds of assistance, such as help in getting out to the yard and in buying food and personal items at the canteen. “The department has a legal obligation -- and a moral and ethical one -- to provide all of our inmates a safe and secure and humane environment,” Thornton said.

In June the U.S. Supreme Court ruled that execution of condemned inmates who are mentally retarded is “cruel and unusual” and therefore in violation of the 8th Amendment. The court halted the practice, leaving it to the 38 states that have the death penalty to figure out how to apply the ban. It is not clear how many of the 608 men and 14 women on California‘s death row might be mentally retarded.

Prison spokesman Crittendon was quick to point out that the IQ screening is not a reaction to the Supreme Court’s ruling. It is the result of a class-action lawsuit brought by the Prison Law Office on behalf of Derrick Clark, a 32-year-old inmate with a below-60 IQ. Clark, who was serving a nine-year sentence at Mule Creek State Prison for robbery and assault with a deadly weapon, could not read or write and was continuously housed with prisoners who abused him.

Under a 1998 settlement of the suit, the California Department of Corrections agreed to provide better services to inmates who are mentally retarded or afflicted with other mental impairments, such as epilepsy, cerebral palsy or autism.

When the Prison Law Office filed the suit, they estimated that as many as 4 percent of the state‘s prisoners would qualify for a mental-impairment designation. Thus far, the Department of Corrections has tested about half of its 160,000 inmates, and found about 1.5 percent -- an estimated 1,206 -- qualify for special services. MacKay said that the low number has led the Prison Law Office to suspect that some prisoners who should be eligible for the program are being overlooked. In the case of death row, such an oversight could mean the difference between life and death.

But Thornton, the corrections department spokesperson, said the court-ordered screenings are to be completed by next June. They were never intended to determine whether or not someone should be exempted from execution. She said she doubted that the prison would agree to allow prisoners not to be evaluated. “We’re under a court order,” Thornton said. “We can‘t just decide on our own: ’Okay, we‘ll exclude you.’”

Christine Pelisek contributed to this story. Sara Catania is a 2002 Crime and Communities Media Fellow with the Open Society Institute, a New York--based nonprofit dedicated to reforming the criminal-justice system. The story is one in a yearlong series on death row funded in part by the fellowship. The complete series archive is available at www.laweekly.com.


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