SALON

Wednesday, Aug 9, 2000 7:00 PM UTC

Scales tipped against them

Advocates for the mentally retarded question the use of I.Q. tests in determining who is fit to be executed.

By

Topics: Psychology,

It seemed like an open-and-shut case. After Kelly Donovan, 24, was abducted, raped and stabbed 20 times, police charged two men who had been drunk and tripping on LSD with the crime. The younger man, a 21-year-old day laborer and seventh-grade dropout named Oliver David Cruz, readily confessed to his participation in the gruesome murder. The older man, Jerry Kemplin, admitting to nothing more than his presence at the event, offered testimony against his companion in exchange for a plea bargain of 65 years in prison with the possibility of parole after 16 years. Cruz, whose lawyers never attempted to argue his innocence, got the death penalty. Case closed; justice served.

Now, 12 years later, in the hours before Cruz’s scheduled execution in Texas, nothing looks quite so cut and dry. With an I.Q. ranging between 64 and 76, Cruz is considered mentally retarded, though not so impaired that he could have been exempted from standing trial.

Although Cruz has expressed remorse about his crime (thereby showing his awareness of right and wrong), his understanding of his situation seems limited at best. In an interview with the New York Times this week, he equated being retarded with someone who “hurt[s] people for the fun of it.”

Thirteen states, including New York, Washington and Colorado, have laws prohibiting the execution of the mentally retarded. Texas, obviously, is not one of them. “We think it’s an abomination,” says Doreen Croser, executive director of the American Association on Mental Retardation, a professional organization for those who work with the mentally retarded. “Our Constitution reserves the death penalty for only the most culpable individuals who commit murder. But the mentally retarded — whose capacity for learning and thinking and reasoning is limited — should not be held to that standard.”

Although there is legislation pending in Texas to prevent many who are mentally retarded from being executed, psychologists, social workers and activists say the proposed law might not protect people like Cruz. Based on his I.Q. scores, the 33-year-old falls somewhere between someone who’s mildly mentally retarded and someone of normal (albeit low) intelligence. Many advocates for the mentally retarded say that Cruz should absolutely be considered mentally retarded, while acknowledging that I.Q. testing is hardly an exact science. They say judgments regarding death sentences should depend on more complex evaluations — which look, for example, at a person’s ability to live independently or to understand his Miranda rights.

“Line drawing is extremely difficult,” says Paul Appelbaum, vice president of the American Psychiatric Association. “It’s all very arbitrary — one point below or one point above a certain level deciding whether you should live or die doesn’t make a lot of sense.”

In many states, an I.Q. score under 70 means that a person is mentally retarded. In other states, the dividing line is lower. The Texas legislation, sponsored by state Sen. Rodney Ellis, D-Houston, targets people scoring below 65, although Ellis has said he intends to increase the cutoff point to 70.

Robert Perske, author of “Unequal Justice: What Can Happen When a Person With Mental Retardation or Other Developmental Disabilities Encounters the Criminal Justice System,” concurs that the I.Q. is at best a flawed tool.

“It mostly tests just how well a person takes tests,” he says. “If the person is having a bad day, the test scores can be lower or higher. Even if the tester is having a bad day, the scores can be affected.”

Some have suggested that criminals can fake their test scores to be granted lighter sentencing. But the AAMR’s Croser says such fears aren’t realistic: “This is a lifelong problem; these people are dropouts or in special education,” she says. “It doesn’t appear out of nowhere. It just can’t be faked.”

Perske notes that there are many other patterns accompanying crimes involving the mentally retarded that courts should take into account. He says the mentally retarded often search out authority figures to accept them and if they don’t find positive role models, they can fall under the influence of people who encourage them to carry out crimes.

“That happens a lot with rapes and murders” involving the mentally retarded, he explains. Then, he says, when they find themselves investigated by the police, they are just as eager to please them. “The police tell them: ‘We want you come in and help us crack the case.’ They love that.”

Sometimes — though no one is contending this is the case with Cruz — mentally retarded people confess to crimes they didn’t commit. Other times they don’t understand their Miranda rights, allowing police to easily elicit confessions that people of normal intelligence would not make.

For Steven Eidelman, executive director of the ARC (formerly the Association for Retarded Citizens), Cruz’s case calls attention to inequities beyond discrimination against the mentally retarded. “Had this guy come from a middle-class family, he probably would have been targeted as learning disabled from a young age, he would have had special tutoring, special attention, and maybe he would never have ended up with the label of mentally retarded. Maybe he would have been slow, but not mentally retarded,” he says. “We know that early intervention is much more effective than anything we can do later with remedial learning.”

The only way Cruz could have gotten a “fair shake,” contends Eidelman, would have been to have “extremely high-quality representation.”

Even if the I.Q.-focused Texas bill becomes law, it will do nothing to ensure such representation for the mentally retarded. “If the system we had in place really worked, the mentally retarded would get good representation and good expert witnesses,” says Appelbaum. “Then we wouldn’t have to be struggling over an arbitrary line. And we probably wouldn’t be executing a mentally retarded man.”

Carol Lloyd is currently at work on a book about the gentrification wars in San Francisco's Mission District. More Carol Lloyd.

Next Article

Related Stories

More Related Stories

Featured Slide Shows

The week in 10 pics

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11
  • Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
    Credit: AP/LM Otero

  • Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
    Credit: AP/Matt Rourke

  • A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
    Credit: AP/Jenny Aicher

  • Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
    Credit: AP/Molly Riley

  • Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
    Credit: AP/J. Scott Applewhite

  • Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
    Credit: AP/Carolyn Kaster

  • O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
    Credit: AP/Las Vegas Review-Journal/Jeff Scheid

  • Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
    Credit: AP/NASA/Chris Hadfield

  • When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
    Credit: AP/Jacquelyn Martin

  • A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
    Credit: AP/The Duluth News-Tribune/Clint Austin

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11

Related Videos

Comments

 0 Comments

Comment Preview

Your name will appear as username

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

follow salon

Most Read

Popular on Reddit

links from salon.com

vote
FBI reportedly joins Bachmann campaign finance probe
236 points237 points | 15 comments
vote
Paul Krugman’s right: Austerity kills. "In an economy where we’re all in the same boat, one person’s spending is another person’s income. So when the government cuts spending, it reduces people’s income, leading to less business, more unemployment, and a vicious spiral of slowing down the economy."
230 points231 points | 201 comments
vote
Jon Karl makes things worse: He regrets “inaccurate” Benghazi email but says his story based on it “still entirely stands.” Really. ABC News?
206 points207 points | 31 comments
vote
“Jodorowsky’s Dune”: The sci-fi classic that never was.
77 points78 points | 16 comments
vote
Austerity Kills: Brian McArdle, a 57-year-old man who had had two strokes and could barely walk, was found "fit for work" by a government subcontractor, and had his benefits stopped. He died the next day.
60 points61 points | 3 comments

From Around the Web

Presented by Scribol
listener_new_rect The Listener: So long, Sookie Stackhouse

Recommendations