TAMPA, Florida, Sep 10 (IPS) - A Florida judge's decision to sentence a convicted killer to death, despite two extremely low IQ scores, has highlighted the possibility that some severely mentally retarded may be missing the lifeline thrown out to them by the U.S. Supreme Court five years ago, some activists say.
On Aug. 24, John Couey, 49, was sentenced to death for the kidnapping, rape and murder of nine-year-old Jessica Lunsford in February 2005. Before the sentencing, Couey's lawyers argued that because Couey scored 64 on an IQ test he was mentally retarded. This meant he should be spared death by lethal injection and given a life sentence.
Under Florida law, the legal definition of mental retardation describes someone with an IQ score of less than 70. An average U.S. citizen has an IQ of 100.
In 2002, the U.S. Supreme Court in the Atkins v. Virginia case ruled that the execution of mentally retarded people was illegal. In a 6 to 3 decision, the judges decided that a Virginian law that had allowed state-killing of the mentally retarded was illegal because it violated the constitution's eighth amendment. This prohibits cruel and unusual punishment.
In the Couey case, Judge Ric Howard did not question this decision. But he rejected the defence's IQ test. He favoured another IQ test provided by the prosecution. This showed that Couey had an IQ of 89. Two weeks after making this choice, he sentenced Couey to death.
Three days after the passing of the sentence, Couey was transferred to the state's death row in the city of Starke. He has an automatic right of appeal. The long appeal process and the slow pace of executions means the average stay on Florida's death row is between 10 and 12 years.
Two other recent death penalty cases involving IQ tests have added to the controversy over the way courts in capital cases are dealing with the inmates of below average intelligence.
On Apr. 11, James Lee Clark was executed by lethal injection in Texas, the leading state for executions in the U.S. Numerous anti-death penalty groups protested before the execution that Clark's IQ was below 70. Clark had been convicted of murdering a teenage woman in 1993.
But in Pennsylvania this August, concerns over the mental capacities of Jose DeJesus, convicted of two killings, saved him from the threat of execution. Numerous psychologists had testified that there was a question about his mental competence. A court ruled that the death sentence passed on him had been unconstitutional because, in part, he was "mildly mentally retarded".
"The U.S. is probably now executing mentally retarded people due to them slipping through the cracks in the criminal justice system," Jonathan Broun, a lawyer and expert on such borderline cases, told IPS in an interview.
Cassandra Stubbs, spokeswoman of the American Civil Liberties Union, said that such problems arose because of the "huge box of questions" left behind in the Supreme Court ruling banning the execution of the mentally retarded in 2002.
The court had not said what IQ score constituted mental retardation. It had also not ruled on whether an IQ test was absolutely necessary to decide the matter.
"In Florida you need an IQ score of 70 or below to be declared mentally retarded," she said. But every U.S. state -- and there are 38 out of 50 which still have the death penalty on their statute books -- were left to come up with their own standards.
Stubbs predicted that the lawyers would eventually bring cases before the Supreme Court for clarification.
Others questioned by IPS have pointed to other problem issues.
The Couey case in Florida illustrated that there was no single IQ test in use across the U.S. Two types of IQ test are used by most states, the Standford-Binet test and the WAIS III (Wechsler Adult Intelligence Scale).
There was also no uniformity about at what stage in a criminal case the question of mental retardation should be raised and decided, said Richard Dieter of the Washington-based Death Penalty Information Centre.
"There are a lot of variables out there among states on this matter. Some states have written (legislation) that an attorney should bring this up before the trial. Some states say it can be raised after the trial... Texas, for example, has no laws, no legislation on this issue," he said.
Ronald J. Tabak, a prominent civil rights and death penalty lawyer based in New York, told IPS that the issue of mental retardation was usually resolved before a case came to court. But the Supreme Court had not ruled whether in court it was the judge or the jury which decided the question.
The unfolding controversy over IQ tests and mental retardation and the death penalty is bound to influence the ever-intensifying debate in the U.S. over its death penalty system.
The majority of U.S. states are now drawing back from executing those sentenced to death or juries are preferring life sentences. But the state of Texas continues its "relentless pace of state-sponsored killing", the Dallas Morning News wrote in a strongly critical editorial this month.
Both Texas and Florida are among the handful of states at the centre of another issue dominating the death penalty debate -- the use of lethal injection as an execution method. Last year a Florida executioner missed a vein and it took 34 minutes for a visibly grimacing and writhing man to die.
"Of the roughly 900 executions by lethal injections that have occurred since 1977, 40 have been botched," Willian Laner, and Keith H. Berge wrote in the most recent issue of the Mayo Clinic Proceedings.
At the core of the problem was the lack of training of the executioners.
But the two doctors said that under no circumstances should doctors ever be of help in the "technology of killing". "Physicians and their drugs should be physically, philosophically, and symbolically removed from execution chambers," the two wrote.
The American Medical Association prohibits doctors participating in state-authorised executions.
Absolute confidence in the U.S. justice system has been shaken by the more than 2,000 death row inmates who have had their sentence or convictions overturned since 1973. The arrival of the use of DNA and other advances in forensic sciences which have exonerated more than 100 people in other crimes has intensified questioning over the possibility of judicial mistakes and miscarriages of justice in death penalty cases.
The U.S. is also looking increasing isolated in the world on the death penalty issue. Even some of the poorest of countries, such as the small central Asian state of Kyrgyzstan, have recently abolished capital punishment and are struggling to introduce a humane penal system which provides for eventual release of reformed prisoners back into the community.
Sometime this year, the American Bar Association is expected to issue a report on the death penalty system in the U.S. This is expected to have a section on mental retardation and the death penalty. The exact date of the report publication is not yet know, Nancy Slonim, a member of the association's media staff, told IPS.