From the Office of State Senator Rodney Ellis

For Immediate Release
April 22, 1999
Contact: Jeremy Warren, (512) 463-0113

By Senator Rodney Ellis and Bishop Joseph Fiorenza

Limmie Arthur believed that he was sentenced to death because he couldn't read. He diligently tried to learn so he could earn his GED because he thought he would get a reprieve if he was successful.

Morris Mason asked a legal aid attorney what he should wear to his funeral because he couldn't understand that he would not be alive after his execution.

The fact that both of these inmates were mentally retarded and had functional IQs of no more than 65 had no bearing on their fate--both were executed by their respective states. Dozens others like them have been put to death in our prisons, in some states with no more evidence to convict them than their own childish confessions.

This week, the Senate Criminal Justice Committee passed S.B. 326, which would prohibit a court from sentencing a defendant to death if the court found that the defendant was mentally retarded. The amazing thing is not that the Legislature considered this bill; it is that the Legislature even had to consider it. It is past time for Texas to wipe this shameful, inhumane behavior from its law books.

In 1989, the United States Supreme Court ruled that mental retardation and mental disabilities may constitute mitigating circumstances in capital sentencing and evidence of its existence must be permitted in jury deliberations. They left it open to the states and the federal government to ban the practice. Although Congress and twelve of the forty death penalty states have prohibited the execution of people with mental retardation, Texas has done nothing.

This bill is not about the death penalty. Frankly, we disagree about capital punishment. One of us, (Senator Ellis) supports it, while the other (Bishop Fiorenza) and his fellow Texas bishops oppose it. But we agree on one thing: this ultimate sanction should not be applied to those who lack the mental capacity to understand fully the consequences of their own actions.

Many Texans agree with us. A Texas Poll showed that, while most support the death penalty, over 73% of Texans are opposed to execution of the mentally retarded. As the most extreme sanction available to the state, the death penalty should be reserved for an offender who has the highest degree of moral culpability for a crime. As the polls show, Texans recognize that executing persons with mental retardation is disproportionate and excessive because mentally retarded individuals simply lack the ability to act as the most hardened, calculating offenders.

We do not want to suggest that people with mental retardation should not be punished when they break the law, nor do we think that people with mental retardation are not responsible for their actions. We simply believe that when the State uses its ultimate legal power -- the power to take away life -- we must be careful that it is reserved for those with the highest degree of blameworthiness. Can we be sure that a person with limited intelligence, incapable of even understanding his or her own actions, had that degree of culpability? Of course not.

As a society, we already recognize this. That is why we do not execute children, even when the news brings us horrific stories of violence by sometimes very young children. Why is that? It is because we recognize that judgment and responsibility can only come with intellectual capacity and experience. Children aren't held to a moral standard beyond their intellectual capacity.

The Legislature faces a daunting task. In a state that is hard on crime and harder on criminals, the temptation is to wash our hands of these lives we are ending. As citizens, moral courage and civic duty require us to speak out for what is right, no matter how politically unpopular or difficult it may seem. Moreover, prohibiting the execution of mentally retarded offenders protects ourselves by ensuring against the spectacle of killing individuals who do not truly comprehend their punishment.

Virtually every group that has expertise in the area of mental retardation, including the American Association on Mental Retardation, the oldest and largest professional organization of mental retardation in the country, opposes the execution of persons with mental retardation. The American Bar Association House of Delegates has stated that mentally retarded persons should be spared not because of any "sympathy" for their plight, but because "the integrity of the criminal justice system" would be "eroded" if persons with reduced culpability and lack of understanding of what is happening to them are executed.

Twelve states and the federal government have concluded that executing people with mental retardation does not serve justice. It is our hope that Texas will be next to join this national trend and put an end to this inhumane practice.

Rodney Ellis (D-Houston) represents Harris and Fort Bend Counties in the Texas Senate. He is Chairman of the Senate Jurisprudence Committee. Most Reverend Joseph Fiorenza is the Bishop of the Diocese of Galveston-Houston and currently serves as President of the National Conference of Catholic Bishops.