- The Washington Times - Monday, February 16, 2004

AUSTIN, Texas (AP) — In the year and a half since the U.S. Supreme Court ruled that mentally retarded inmates cannot be executed, more than 40 deathrow cases have been delayed or sent back for review in Texas, leaving appellate courts in a quandary.

Death-penalty supporters wonder whether inmates are trying to delay justice by jamming the courts with new contentions of mental retardation. Critics of the state’s capital punishment system say the numbers point to dozens of people who may be ineligible for execution.

Both sides agree, however, that the state Legislature should change Texas law to determine mental retardation earlier in deathrow cases, reducing the burden on federal and state appeals courts.

“Texas has no system in place, and what you have is chaos,” said Steve Hall, director of StandDown Texas, which opposes the death penalty.

The high court’s ruling in June 2002 protected the severely mentally retarded, and most states have followed nationally accepted guidelines that define retardation as significantly below-average intellect combined with low “adaptive” skills at such things as communicating and taking care of oneself.

But when drawing the line between inmates with low intelligence and those who are retarded, states have disagreed, making it easier to get off death row in some states and harder in others.

Lawmakers in Texas tried to address the issue in the past year but couldn’t agree on whether retardation should be determined before or after the guilty phase of a trial.

According to the Texas Defender Service, the state Court of Criminal Appeals has sent 37 cases back to trial courts for hearings. Four cases were remanded by the 5th U.S. Circuit Court of Appeals in New Orleans.

Most cases sent back to lower courts have not been completed, said Jim Marcus, executive director of the Texas Defender Service.

Deathrow inmate Johnny Paul Penry’s case was one of the state’s most high-profile cases involving mental-retardation contentions.

First convicted in 1979 of rape and murder in the death of 22-year-old Pamela Moseley Carpenter, the sister of former Washington Redskins kicker Mark Moseley, Penry remains on death row after being sentenced to death thrice.

The U.S. Supreme Court had overturned his conviction because evidence of mental retardation wasn’t considered in trial court. Penry was tried again, and the death sentence was thrown out in 2001. But, the next year, another jury sentenced him to death.

Dianne Clements, president of the victims rights group Justice For All, said it’s difficult not having a clear state definition of mental retardation.

“These defendants are taking every opportunity they can to remove themselves from death row,” Miss Clements said.

There are about 450 prisoners on death row in Texas.

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