Too slow for death row?

Oliver David Cruz failed seventh grade three times and couldn't pass the Army's entrance exam, but Texas says he's smart enough to be executed.

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The Texas way of capital punishment has come under greater scrutiny since George W. Bush, who has overseen 138 executions during his tenure as governor, emerged as the Republican front-runner in the presidential race. Concerns about premature trips to the death chamber reached their peak with the shaky case of Gary Graham, an African-American who was convicted and ultimately executed based on the testimony of a single eyewitness and no supporting physical evidence. Texas killed Graham with the eyes of the world watching and protesters massed outside the prison walls.

But relatively few Americans are expected to contest the planned execution of Oliver David Cruz Wednesday. Why? Cruz makes a bad poster boy for anti-death-penalty crusaders because — by all accounts, including his own — he is guilty of his crime. In 1988, Cruz and a friend got drunk and high on LSD, and kidnapped, raped and stabbed to death 24-year-old Air Force linguist Kelly Donovan, who was out for her evening walk in San Antonio.

Cruz’s defenders say that the state should look at his life before the crime when deciding on his penalty. The Texan flunked out of the seventh grade three times, the Army refused to accept him after he failed its entrance exam three times and he recently boasted to a New York Times interviewer that his intelligence is improving. “Now I can write a letter,” Cruz said, “a half a page.”

Though prosecutors now assert that Cruz’s I.Q. once tested as high as 83, his defenders say his I.Q. hovers around 70, the mark for mental retardation. Of the 38 states that employ the death penalty, 13 have provisions prohibiting execution of the mentally retarded. And, ironically, if Bush doesn’t intervene on Cruz’s behalf before his scheduled lethal injection at 6 p.m. Wednesday, he will be supporting an execution that his brother Jeb Bush, governor of Florida, has said is wrong. Jeb Bush told reporters in April that “people with clear mental retardation should not be executed.”

In an interview with Salon, University of New Mexico law professor Jim Ellis — an advocate of laws exempting mentally retarded convicts from the death penalty — argues that, guilty or not, Cruz shouldn’t die for his crime.



The last Texas death penalty case that drew a lot of attention was that of Gary Graham. But with this case, there hasn’t been as much scrutiny. Do you feel that anti-death-penalty advocates have been as engaged in Cruz’s case as they were in the Graham case?

You want to be careful not to jump to that conclusion prematurely. Judging by the letters and calls I’ve been receiving, this case is getting substantial attention.

The important thing to remember is that the momentum on these laws [affecting the execution of people with mental retardation] is coming more from advocates for the disabled, not from the organizations dealing with the death penalty. The way the disability advocates have dealt with this is to quietly meet with legislators so that the debate doesn’t get divisive. Because of that, we’ve gotten a lot of bipartisan support at the state legislative level.

I understand why people are so focused on the innocence cases. They are, by far, the most dramatic. But I am concerned that the issue of innocence is so much of the story. There are issues beyond DNA in [applying] the death penalty. What the DNA is showing us is that there are other mistakes being made in these cases, and those need to be taken into account.

Do you think that the fact that Cruz admitted to this crime is going to affect public support for your position?

The position that we shouldn’t execute people with mental retardation is quite clear. Texas is saying they’re not sure whether Mr. Cruz has mental retardation, but they didn’t offer evidence at trial that he doesn’t. They didn’t offer evidence at any subsequent hearing that he doesn’t. But they say they’re not sure because of test scores. Well, if they’re in doubt of that, grant a stay and a clinical investigator to test him and find out. It isn’t clear why uncertainty should lead to execution.

Why should the mentally retarded be exempt from execution?

The death penalty should be reserved for only the most culpable of criminals. A small percentage of the people eligible for the death penalty ever receive that sentence, and of them, very few are actually executed. People with mental retardation are, by definition, the bottom two and a half percent of the population as measured by intelligence tests. So how can there be overlap between those groups — the top 2 percent of murderers with the highest degree of understanding, the most responsible for those crimes, and the 2 percent of people who have mental retardation? Who could fit in both those categories? It is an empty set.

And there’s the question of whether a person with mental retardation would have committed the crime were it not for his disability. People with mental retardation are more susceptable to suggestion and more eager to please. Therefore, outside influences could lead them to commit crimes that they would not otherwise be involved with. Mental retardation also makes it more difficult to contribute to your own defense, so they face disadvantages throughout court proceedings.

This is not to say that people with mental retardation should not be punished for crimes. In noncapital cases, it may be appropriate to sentence a person with mental retardation the same way a nondisabled person would be sentenced.

Is that a type of reverse discrimination, where people with mental retardation are not held to the same standards of obeying the law?

We treat people with mental retardation differently than we treat people without that disability in lots of other contexts, and those distinctions are reasonable. My position is that it’s equally reasonable to say that when we execute people, we are looking for those with the highest degree of culpability and understanding. If that system is putting people with mental retardation on death row, then the system isn’t working the way its supporters want the system to work.

One of the standards held by the public for capital cases is that the condemned has to understand the enormity of the crime — and the difference between right and wrong. Given that Cruz has been so forthcoming about his level of responsibility, is it reasonable for the public to conclude that his execution is justified?

The question of whether someone has a sufficient understanding of right and wrong doesn’t tell us how you punish somebody. Instead, it tells us whether you can convict them at all. So one way to think about this is that we are talking about different levels of understanding. Somebody who understands the wrongfulness of their actions is someone who can be convicted and punished. The death penalty takes that same commodity — a person’s understanding of his acts — and says that only those at the highest level of understanding should be subject to execution.

Texas has a dubious record for executing people on thin evidence. But given that Cruz confessed to his crime, how likely do you think it is that Texas will grant a stay?

Cases in other states involving defendants with mental retardation should give Texas pause. The one that’s probably most familiar to your readers, although they may not have thought of it as a mental retardation case, is that of Anthony Porter, who a year and a half ago walked off Illinois’ death row because journalism students had discovered that he was the wrong guy. Everyone has focused on that as a factual innocence case, but the reason Porter was alive to be proven innocent by those students is because 72 hours before his execution he received a stay from the Illinois Supreme Court, which said, “Let’s figure out if we want to execute someone with mental retardation in the state of Illinois.”

I had the privilege of representing Porter in the matter of his mental retardation. I didn’t know he was innocent at that time, but because we won that stay, Porter was alive long enough for those students to prove his innocence.

Have you resigned yourself to Cruz’s execution?

Stays come even when you don’t expect them, and often at the last moment. But I think whenever an execution gets close in Texas, you have to be realistic.

Alicia Montgomery is an associate editor in Salon's Washington bureau.

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