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Exempting Mentally Retarded from Death Sentence

By: Dan Mihalopoulos
State Capital Bureau

January 24, 1995

JEFFERSON CITY _ Georgia executed convicted killer Jerome Bowden in 1986 _ despite Bowden's IQ of 49.

Two years later, lawmakers made Georgia the first state in the country to exempt the mentally retarded from the death penalty.

Now, some Missouri lawmakers want to have Missouri follow Georgia's lead.

One of those lawmakers is Sen. Henry Wiggins, D-Kansas City and a death penalty opponent.

"Is that what we want in Missouri?" Wiggins asked a recent hearing of the Senate Judiciary Committee. "We're a better state than that. If they don't know where they are and what they're doing, we shouldn't execute them."

The proposal before the committee would prevent the scene in South Carolina from occurring in Missouri, Wiggins said.

The measure would prohibit the state from executing a convict who is diagnosed with mental retardation and has an IQ of 75 or less.

Under the bill, the diagnosis of mental retardation would have to have been made prior to commission of the crime in order to be covered by the death-penalty exemption.

Goode said he plans an amendment that would lower the IQ threshold to 70.

Life imprisonment would replace the death penalty as the punishment for retarded first-degree killers.

"This is different from using mental illness as a defense," said the bill's sponsor, Sen. Wayne Goode, D-St. Louis County. "This is not a defense. Someone could still be convicted of first-degree murder, but the state just could not put him to death."

A similar initiative failed in the Missouri Legislature last year.

The Missouri Association of Prosecuting Attorneys opposes creating a special exemption for the mentally retarded.

"We are not talking about someone suffering from mental disease and cannot appreciate the wrongfulness of their crime," said Rick Callahan of the Missouri Association of Prosecuting Attorneys.

State law already prevents the criminal justice system from executing convicts who are incapable of understanding their punishment or the legal proceedings surrounding their case.

Last year, convict Chuck Lee Mathenia avoided the death penalty because a judge found him to be incompetent. Mathenia could not comprehend his lawyer's arguments for clemency.

"If they are defined as mentally retarded because they don't know and appreciate what's going on, then they are already covered by the law," Callahan said.

Some judiciary committee members questioned the absolute validity of IQ testing. "I have problems with an arbitrary line," said Sen. Peter Kinder, R-Cape Girardeau.

Moreover, the bill would provide another loophole for killers, Callahan said.

"The current law already has large holes for a defense attorney to go through," Callahan said. "I'm skeptical about enlarging that hole."

But very few convicts would qualify for the exemption, said Kevin Curran, an attorney for the Missouri Office of the Public Defender.

Still, he said, "If we don't have the law, somebody mentally retarded will get the death penalty."