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 Carol Lloyd
Published August 9, 2000 7:00PM (EDT)

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

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

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