Mentally Disabled Inmates Still Routinely Put To Death In Texas

“We do not execute mentally retarded murderers today.”

Gov. Rick Perry made this Orwellian declaration in 2001 as he vetoed, rather than signed, a Texas bill that would have protected intellectually disabled offenders from the death penalty. Now, more than a decade later, Perry’s declaration is no more true than it was back then: Texas continues to execute offenders with intellectual disabilities. In fact, without a last-minute intervention, Texas will execute just such an offender in a matter of weeks.

The crucial difference? The U.S. Supreme Court ruled in 2002 that our Constitution prohibits executing people with intellectual disabilities.

How has Texas managed to continue a practice that our Constitution condemns? In the absence of a statute, the Texas Court of Criminal Appeals — the highest criminal court in Texas — has used its authority to undermine the constitutional rule. In its landmark precedent, the appeals court expressed doubts about whether the Supreme Court intended to protect all offenders who meet the professional criteria for intellectual disabilities. Instead, the Court of Criminal Appeals has improvised its own approach to deciding which offenders with intellectual disabilities should be spared execution.

In the case of Ramiro Hernandez, scheduled to die April 9, the defense offered compelling evidence of his intellectual disabilities. Hernandez, a Mexican national, had numerous IQ scores below 70, including a 62 on his only full-scale test. Witnesses testified to Hernandez’s extreme deficits in functioning, including his inability to bathe himself, run simple errands, prepare food safely or make change.

Hernandez’s poor academic performance and inability to learn led to his expulsion from school after the third grade. Nonetheless, his claim of intellectual disabilities was rejected by the Texas courts and the 5th Circuit on dubious grounds. The Court of Criminal Appeals relied on the testimony of an “expert” who did not speak Spanish, did not meet Hernandez (or anyone who knew him), and could not state the definition of intellectual disabilities.

Despite Hernandez’s obvious deficits, the expert claimed his behavior was appropriate for his “cultural group.” The 5th Circuit likewise insisted that Hernandez should be judged not by American standards and asserted that the 62 IQ score was in reality a 70 when scaled to Mexican norms.

In other words, Hernandez’s low performance was squarely in the range of intellectual disabilities but not low enough for a Mexican to merit constitutional protection.

Hernandez’s case follows numerous other shady denials of intellectual disabilities claims. Elroy Chester presented uncontested evidence of his low IQ and numerous deficits, as well as evidence of his placement in the prison’s “Mentally Retarded Offenders Program.” Nonetheless, his claim was rejected using the appeals court’s invented criteria, and Chester was subsequently executed.

Juan Lizcano had IQ scores ranging from 48 to 62 and had been removed from school at age 15 because he had not advanced past the sixth grade. He could not read a clock, dress himself appropriately or perform simple jobs. The state relied on the testimony of Lizcano’s ex-girlfriend and a used-car salesman who had sold Lizcano a car, both of whom stated that Lizcano did not seem that impaired to them. Lizcano remains on death row.

The Supreme Court now has the opportunity to address Texas’ marked departure from professional norms in administering the intellectual disabilities exception to the death penalty. Unless it does so, many Americans will wrongly believe Perry’s glib pronouncement that “mentally retarded murderers” are in fact exempt from the death penalty. In Texas, we still kill them.

STEIKER IS THE JUDGE ROBERT M. PARKER CHAIR IN LAW AND DIRECTOR OF THE CAPITAL PUNISHMENT CENTER AT THE UNIVERSITY OFTEXAS SCHOOL OF LAW.

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