Monday, October 15, 2001

Executions of retarded questioned

Ohio bill may save some defendants from death row

By Kate Macek
Enquirer Columbus Bureau

        COLUMBUS — When five children died in an apartment fire in January 1992, it didn't matter that the man who killed them was mentally retarded. A Hamilton County jury convicted William Garner and sentenced him to death.

        A bill sponsored by Rep. Ray Miller, D-Columbus, would ban executions of mentally retarded murderers in Ohio.

        “It's just a grossly unfair thing to do, to execute people who are not in complete control of their mental abilities,” Mr. Miller said.

        Although it does not appear likely Mr. Miller's bill will advance in the General Assembly, debate over whether it's acceptable to execute the mentally retarded is growing nationwide.

        Many states have outlawed the death penalty for the mentally retarded, and the U.S. Supreme Court last month accepted a capital murder case involving a mentally retarded defendant.

        The central issue is whether it is cruel and unusual to execute an adult with the mental age of a child.

        Hamilton County Prosecutor Mike Allen said he feels current state law is sufficient to protect the mentally retarded.

        “The issues of mental retardation can be addressed through the "not guilty by reason of insanity' plea,” Mr. Allen said.

        The U.S. Supreme Court will use the case of Virginia murderer Daryl Atkins to decide if executing the mentally retarded is contrary to society's “evolving standards of decency.”

        Convicted for the 1996 kidnapping, robbery and shooting of a Langley Air Force Base airman, Mr. Atkins was tested as having an IQ of 59, categorizing him as mildly retarded.

        A Virginia jury decided that even though Mr. Atkins has the mental age of a 9- to 12-year-old, his crime was worthy of execution. If the high court disagrees, the decision could set a national precedent outlawing executions in similar cases.

        Of the 38 states with capital punishment, 18 — including Indiana and Kentucky — have banned executions of the mentally retarded over

        the past two decades. The federal death penalty statute also forbids these executions.

        “We certainly see that (complete abolition) might not happen in one step,” said Jana Schroeder, chairwoman of Ohioans to Stop Executions. “We feel that the mentally retarded is one population that should be looked at.”

        However, Rep. Jim Trakas, R-Independence, said Mr. Miller's bill has limited support in the General Assembly.

        “This issue is debatable because it's very difficult to define what is mental retardation,” he said.

        The law, if passed, would only affect future cases.

        Ohio Public Defender David Bodiker estimates that between one-fourth and one-third of Ohio's 202 death row inmates are mentally retarded or have lower-than-average IQ scores.

        In Mr. Garner's 1992 trial, two psychologists testified his brain functioned “between mild retardation and low average IQ.”

        Mr. Garner stole the purse of Addie Mack, who was being treated in the emergency room of a Cincinnati hospital, and took a taxi to her apartment. He stole various items, then set three fires in the apartment to cover his tracks and left in the taxi.

        Six children were sleeping on the second floor of the apartment. The oldest, Rod Mack, 13, escaped through a window, but his four sisters and a friend did not.

        The court determined that Mr. Garner must have known the children would die in the fires he set. In 1995, the Ohio Supreme Court upheld the death sentence 6-1.

        Justice Craig Wright dissented, saying he could not “sanction the electric chair for a person with the mentality of a child.”


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