Press Release from State Senator Rodney Ellis

For Immediate Release
May 23, 2001
Contact: Jeremy Warren, (512) 463-0113

Ellis, Hinojosa Announce Breakthrough on
Plan to Ban Execution of Mentally Retarded
Conference Committee agrees to strengthened Florida plan

(Austin)// Senator Rodney Ellis (D-Houston) and Representative Juan Hinojosa (D-McAllen) today announced a breakthrough in their effort to ban the execution of the mentally retarded.

The lawmakers announced that the Conference Committee on HB 236 had unanimously approved a new plan to ban the execution of the mentally retarded. The proposal is a slightly modified version of a law recently signed into law by Florida Governor Jeb Bush.

"I am extremely pleased by the strong compromise plan we have adopted that will ban the execution of the mentally retarded in Texas," said Senator Ellis. "With this bill, we can prove that you can be tough on crime and still have compassionate justice, even in the Wild, Wild West."

"We already recognize that executing children is an unacceptable form of punishment," said Representative Hinojosa. "It is time to extend the same recognition to the mentally retarded, who do not recognize the difference between right and wrong."

The compromise proposal for HB 236 provides two safeguards against executing the mentally retarded. First, if the defendant has asked for submission of a special issue and if raised by evidence, a special issue is submitted to the jury during the punishment phase of the trial. The jury is specifically asked: "Whether the defendant is a person with mental retardation." If the jury finds that the defendant has mental retardation, then the court will sentence the defendant to life imprisonment.

Second, if the jury finds that the defendant is not mentally retarded, the defendant may immediately petition the court for a judicial hearing on the issue of mental retardation. The court will appoint two disinterested experts to determine if the defendant is mentally retarded. If the judge finds by a preponderance of the evidence that the defendant is mentally retarded, then the court shall sentence the defendant to life imprisonment.

As a final safeguard, the legislation contains a provision that prohibits a person determined to have mental retardation from being sentenced to death.

Prior to today's agreement, the House and Senate had differed over the best approach to ban the execution of the mentally retarded. Under the original House plan, a jury would make the determination of whether a defendant was mentally retarded as part of the sentencing phase following the trial. The Senate proposal would leave determination to the judge prior to the trial.

A recent Houston Chronicle poll showed 68% of Texans support the death penalty, but 81% oppose the execution of the mentally retarded. Under HB 236, life imprisonment would become the maximum penalty an offender found to be mentally retarded could face if convicted of a capital crime. Currently, 15 states -- Arkansas, Arizona, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, New Mexico, Nebraska, New York, Tennessee, and Washington -- and the federal government have passed laws prohibiting the execution of people with mental retardation. In Texas, six offenders with mental retardation have been executed since 1976.

A finding of mental retardation requires three stringent tests: significantly subaverage general intellectual functioning, deficits in adaptive functioning, and onset before maturity. If the judge or jury finds that the defendant does have mental retardation, the death penalty is excluded as a potential punishment. Experts have maintained that, in most cases, mental retardation is professionally diagnosed early on in an offender's life, well before the issue is raised at trial.

"It is time for Texas to take a stand and ban the execution of the mentally retarded, not stand on the sidelines," said Ellis.

"The international and domestic communities have long condemned this uncivilized practice," said Hinojosa. "But today we have responded to an even more important constituency, the values of Texans themselves. No longer will we allow our quest for justice to devolve into the pursuit of vengeance."