The U.S. Supreme Court ruling that bans the execution of the mentally retarded could spare the lives of at least 10 Illinois Death Row inmates, according to reviews of the state’s death penalty cases.
But the issue could be moot if Gov. George Ryan commutes the sentences of Illinois’ 159 Death Row inmates to life without parole before he leaves office, as he has pledged to consider.
Regardless of whether Ryan takes that step, the high court’s ruling Thursday presents state lawmakers with a complex task — defining mental retardation.
“I think we have a lot of litigation ahead of us,” said William Browers, chief of criminal appeals for the Illinois attorney general’s office. “This thing is going to be very complicated.”
In April, Ryan’s commission on the death penalty recommended banning executions of the mentally retarded. Taking its cue from a Tennessee law, it suggested using the commonly accepted IQ level of 70 and below as a benchmark in determining who would not qualify for the death penalty.
Public defenders and psychiatric associations have recommended more flexible guidelines that factor in other measures of a person’s ability to function in society.
In 1989 the legislature approved a law exempting the mentally retarded from the death penalty, but Gov. James Thompson vetoed the measure.
In recent years the General Assembly has considered similar proposals, but efforts failed because of opposition in the state Senate.
Illinois, among 20 states that permit the execution of the mentally retarded, currently allows its judges and juries in capital trials to consider a defendant’s evidence of mental retardation as a mitigating factor when determining whether to sentence the defendant to death.
“What’s probably going to happen is that we will codify the Supreme Court decision,” said Sen. John Cullerton, a Democrat from Chicago who has sponsored legislation banning such executions.
“You can’t get any better than that,” added Cullerton, who is a lawyer. “What can the opponents say? It should be the law of the land.”
Ryan called the Supreme Court ruling “an excellent decision” and said he might propose abolishing the death penalty altogether, though there is virtually no likelihood of legislative support.
“I think it’s long overdue,” Ryan said of the decision. “Why would you put a mentally retarded person like Anthony Porter, why would you put a guy like that on Death Row? Even if they committed the crime . . . I never understood that.”
Indeed, it is Porter’s case that is emblematic of the issue in Illinois. Just two days before his scheduled execution, Porter was granted a stay so his attorney could present evidence that his limited mental capacity made it impossible for him to understand his punishment.
That evidence consisted of intelligence tests that placed his IQ in the low 50s.
While that issue was pending, Porter was exonerated after a private investigator and Northwestern University journalism students unraveled the case. The students found witnesses who recanted their statements. The private investigator obtained a videotaped confession from another man, who admitted committing the double murder that had sent Porter to Death Row.
Not `major expansion’
Matt Jones, legislative liaison for the Illinois State’s Attorneys Association, said defense attorneys already use the mental deficiencies of their clients to try to gain sympathy from juries and courts.
“I don’t really view this as a major expansion of the law,” said Jones, a former assistant state’s attorney in Peoria County. “For a long time, our law has ensured that if you execute someone, they must have a true understanding of their crime.”
Browers said the issue likely will surface first as defense attorneys file clemency petitions with the state’s Prisoner Review Board.
The state appellate defender’s office, according to attorneys there, recently surveyed attorneys who have clients on Death Row and found that nine of the clients were mentally retarded or borderline mentally retarded.
In 2000, not long after Ryan halted executions by declaring a moratorium, the Tribune reviewed the cases of all those on Illinois’ Death Row and found that at least 11 had scored below 75 on at least one IQ test.
Many others made claims of mental retardation during sentencing hearings, but the appellate records did not detail IQ scores.
In many of the cases, prosecutors vigorously disputed the claims.
The Supreme Court’s ruling offers a new opportunity for inmates such as Dorothy Williams, on Death Row for the 1989 murder of an elderly Chicago woman.
The Illinois Supreme Court on Thursday sent her case back to a lower court for a new hearing. Now, her defense lawyer said, he has a chance to demonstrate the mental deficits that one expert witness for the prosecution concluded placed her within the range of mental retardation. She scored a 62 on one IQ test and a 66 on another, according to her attorney, Kenneth Flaxman.
In another case, the attorney for Latashia Pulliam, who with a boyfriend was convicted of the 1991 murder and sexual assault of a 6-year-old girl, said she now will go to court and argue it would be unconstitutional to execute Pulliam.
Pulliam’s IQ was measured as low as 57 when she was age 6 and as high as 72 when she was 11. Most recently, in 1994, it was measured at 69.
Pulliam’s trial lawyers, who pleaded for mercy, citing her mental retardation, said they did not have her testify at trial because they were concerned she was so intellectually limited that she could not withstand cross-examination. They also said they had to explain even the most basic matters to her.
“We haven’t raised it as an 8th Amendment claim,” said Anna Aronheim, the attorney representing Pulliam, “but obviously we have to do that now.”
Criteria debated
Some suggest the criteria for mental retardation should be broader than IQ and underscore the thorny difficulties legislators will confront as they try to define the state standard.
Many of the 18 states that already ban executions of the mentally retarded use the 70 IQ standard and require documentation that the impairment existed prior to adulthood. Some, such as Arizona and Connecticut, define mental retardation more broadly as significant subaverage intellectual functioning, along with limited adaptive behavior.
Anthony Mitchell was convicted and sentenced to death for the July 1989 murders of two teenagers in St. Clair County.
Mitchell’s IQ, according to his attorney, Anne Carlson, has been tested at 73. But, Carlson said, he has been described as functionally illiterate and failed several grades at school. He suffered a head injury as a child.
“You ask him very simple questions, and he just doesn’t know,” said Carlson. “He can’t fill out forms, and even if you read them to him, I don’t think he understands. It’s really a difficult situation.”
