Litigation
Jun. 22, 2002
State Expects Onslaught of New Petitions
LOS ANGELES - The U.S. Supreme Court ban on executions of individuals with mental retardation creates a murky scenario for the California Department of Corrections in managing its death row population, which is the largest in the nation, criminal justice experts said Thursday.
The ban's impact on death penalty defenders throughout the state is significantly clearer. Most lawyers expect defense attorneys to begin filing petitions challenging the mental health of their clients almost immediately.
"Good attorneys ought to be filing appropriate motions to protect the interests of their clients," said one death penalty expert.
Officials at the Corrections Department, meanwhile, said the effect of yesterday's ruling on internal policies is unclear. They confirmed they have not evaluated fully the mental health of the state's 624 men and women on death row, as required by a 1998 class-action settlement.
Prosecutors' discretion in seeking the death penalty and the lack of predictability in the jury system simply adds to the department's burden, officials said.
"We don't sentence people; we just carry out the sentences," Terry Thornton, a spokeswoman for the department, said. "We expect to complete [mental health] evaluations by the end of the year."
Although yesterday's high-court ruling and existing state law require that, before executing any death row inmate, the state must afford them competent legal counsel and a full examination to rule out mental retardation, the appropriateness of their placement on death row now could be questioned, experts said.
"Depending on the custodial status, different inmates are entitled to different things," said Wendy Peoples, co-chair of the California Attorneys for Criminal Justice. "For instance, death row inmates are not entitled to work, whereas other inmates sometimes are."
The number of mentally retarded inmates throughout the nation and in California is unclear. According to the Death Penalty Information Center, 35 mentally retarded inmates have been executed since 1976. In addition, there are 3,700 death row inmates nationwide, including 2,500 in the 20 states that allowed execution of the mentally retarded. Five percent of those inmates are estimated to be mentally retarded.
However, since 1993, the California Department of Corrections has contended that none of its inmates on death row is mentally retarded.
How do they know?
"Every inmate that comes into the correctional system goes through a mental health evaluation," Thornton said. "We're under court mandate to check for that."
Thornton referred to a stipulated settlement entered into by the department in the U.S. District Court for the Northern District as a result of a class action on July 20, 1998.
The settlement requires the state to screen all inmates for developmental disabilities, train staff to recognize and communicate with them and ensure safe housing, education, work opportunities and adequate medical care. Clark v. State of California, C96-1486 (N.D. Cal., filed April 22, 1996; affirmed 9th Cir. Aug. 27, 1997).
For purposes of the settlement, the definition of developmental disabilities includes autism, cerebral palsy, epilepsy and mental retardation. Monitors of the settlement said that, of those conditions, they assume a developmentally disabled inmate is mentally retarded unless the department indicates otherwise.
According to the Prison Law Office, a nonprofit legal group in San Rafael assigned to monitor the settlement, the department's screening process is far from an exact science.
A developmental disability tracking log from San Quentin State Prison dated April 15 indicates that just 23 of more than 157,000 prisoners in the entire correctional system suffer from developmental disabilities - of those 23, two are on death row, said Heather McKay, a staff attorney for the law office.
"We assume that means mental retardation, because cerebral palsy and epilepsy require special physical treatment and autism is extremely rare," McKay said. "But sometimes the department also includes people with severe brain injuries that affect their cognitive functioning."
"We are in the process of evaluating those two individuals who are on death row to determine whether they are in fact mentally retarded," Thornton said.
McKay said that the department's job is complicated by the lack of understanding of mental retardation by sentencing judges and lawyers, the tendency of mentally retarded people to mask their condition and the difficulty and cost of accurately assessing retardation.
If death row inmates with retardation were not evaluated properly at trial or their condition did not deter prosecutors from pursuing the death penalty or jurors from returning their verdict, then the department would be on its own in assessing the inmate's mental condition, she said.
"People get overlooked," McKay added. "The department evaluates inmates for purposes of what kind of institutional support they need, but it could very well be that inmates with [mental retardation] are functioning well enough to not need institutional protection and therefore not showing up in the screening process."
McKay said that the department's screening information is distributed to the highest levels of the department on down to prison guards and staff, but the quality of that information has varied.
Before the settlement in Clark, she said, there was no formal requirement to accommodate the mentally retarded.
"San Quentin has been screening since December 1999, but the accuracy of that information has varied over time," McKay said. "I wouldn't vouch for any of the screenings in early 2000."
Since implementing the program, the department has experimented with different approaches and developed its own protocol to determine inmates' IQ and their adaptive functioning level, she said.
Thornton said the process includes a third aspect: a test to remove cultural bias.
Whether Thursday's ruling will require additional procedures is unclear, Thornton added.
"We're reviewing the opinion to see if it affects our program," she said.
The courts have always done their own mental health screening before capital sentencing, but it has not been very rigorous, Peoples said.
"What you get often is a drive-by evaluation," she said. "I had one client who was illiterate and couldn't be subjected to a paper test, and since he had no mental health history, he was determined to have no illness."
Thursday's ruling will bolster the necessity for competent legal counsel and thorough mental health evaluations and investigations into the past of defendants facing capital murder charges, she said.
"But we've always needed those things, which should have been provided regardless of the Supreme Court ruling," Peoples said.
She pointed to an increase in capital sentencing reversals over the last several months by the federal appeals court as a result of ineffective assistance of counsel.
"This bolsters the case for the need for greater resources to evaluate both defendants and inmates for mental retardation," she said.
Jeffrey Anderson
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com