Fact Check from State Senator Rodney Ellis

For Immediate Release
June 6, 2001
Contact: Jeremy Warren, (512) 463-0113

Experts Agree: No Way to 'Fake' Mental Retardation
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Texas jury instructions do not include specific direction on mental retardation

The claim has been made that the Texas plan to ban the execution of the mentally retarded would jeopardize the jury system in Texas. Now that the United States Supreme Court has ruled that the jury instructions in Penry v. Lynaugh were unconstitutional, House Bill 236 would give Texas juries -- for the first time -- clear, specific instructions on the issue of mental retardation in capital cases. The structure of House Bill 236 is analogous to the way that judges and juries interact in decisions regarding the certification of juveniles and the competency of defendants to stand trial or to be executed.

Under our current law, Texas juries are given no specific instructions regarding mental retardation in capital cases. Instead, mental retardation is only brought up as one of many potentially mitigating factors in the punishment phase. In line with the recent Supreme Court ruling in Penry II, House Bill 236 will ensure that the issue of mental retardation is specifically presented to the jury and judge.

Fifteen states and the federal government already have instituted a ban on the execution of the mentally retarded, and none have reported any problems with the jury system. In addition, Missouri is poised to become the sixteenth state to ban the practice of executing the mentally retarded.

House Bill 236 places a burden upon the defendant to prove mental retardation before he may be considered for relief. The jury retains the responsibility in the first instance for the determination of mental retardation. Under House Bill 236, the jury is explicitly asked to make the determination. Moreover, the judge retains less authority than he has under current law in other matters: he cannot order a new trial for either guilt/innocence or punishment. The judge's authority is restricted to reviewing the determination of mental retardation and imposing a life sentence instead of death.

The trial court judge has the same responsibility that every appellate judge currently has, namely, to review the rationality of a jury finding. One of the basic functions of appellate review is to ensure that verdicts are reasonable and that juries are not caught up in the passions of the moment. House Bill 236 strengthens the judicial system by allowing a trial judge to review a jury's finding that a defendant was not mentally retarded.

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