LOW IQ IS A CAPITAL CRIME

...Jerome Holloway's court-appointed public defender, Jack Carney, says his client is "unlike any other defendant I have ever represented...

...The state of Georgia has a law prohibiting the execution of anyone younger than seventeen, but there's no such exemption for the mentally retarded...

...None of this came out at the trial," says Judy Menadue, a New Orleans attorney who handled Brogdon's appeal...

...He was convicted of beating, gagging, and slitting the throat of an eighty-one-year-old man who lived next door...

...According to one attorney, he had been physically, mentally, and sexually abused by his father since childhood...

...I have reason to believe that a high percentage of inmates with mental retardation are innocent," says James W. Ellis, a law professor at the University of New Mexico...

...So disadvantaged is Arther that the judge who sentenced him to death offered the comment that the man would have been better off under slavery...

...His IQ scores ranged from sixty-one when he was young to eighty-one at the time of his trial...

...Indeed, he boasted of being "the killer of the Eastern Shore...

...All states have tests designed to determine competence from a mental-health aspect," says Santamour...

...The case hinged on a written confession that he signed, he said later, because the detective promised to help him...

...Adding to the legal difficulties of the mentally retarded is the fact that they have trouble helping their attorneys prepare a defense...

...Rarely are they capable of taking the stand in their own defense...

...Moreover, most people unfamiliar with mental retardation, including many psychiatrists and psychologists, don't recognize it when they see it...

...H Jerome Bowden, thirty-three, was executed in Georgia on June 24, 1986, just a few hours after a state-ordered psychiatrist determined that he was, in fact, mentally retarded...

...Further, if such a person is found to be incompetent, he or she faces Catch-22: a mental hospital where treatment is designed for the insane, not the retarded...

...David Bruck, a Columbia attorney who handled his appeal, says, "It was like executing a child...

...He has the mental capacity of a fifth-grader and was convicted of slaying a crippled elderly neighbor...

...His IQ ranged from fifty-nine to sixty-five...

...As might be expected, prosecutors don't necessarily agree with Ellis...

...New Mexico attorney James Ellis says a defendant should not be executed if he cannot understand "the nature of the process and the charge, as well as the purpose or nature of the punishment, or if he lacks sufficient capacity to recognize or understand a fact that may exist to make his punishment unjust or unlawful and cannot convey it to the court...

...Since 1976, at least six of the ninety-plus people executed in the United States have had serious mental disabilities...

...A lot of people on death row across the country have significant impairments because of mental retardation, as well as mental illness, that have not been recognized pretrial by either their counsel or psychiatrists...

...The majority of mentally retarded persons," he says, "don't understand why it's wrong to steal, but they will say it's wrong to steal...

...It never dawned on him that he would be executed for cooperating with the authorities...

...It is unlikely that they will receive special programming in corrections and even less likely that they will be transferred to other agencies where such special programming is more readily available...

...Even defendants who are both retarded and mentally ill have been handed death sentences...

...Most state laws governing the determination of competence to stand trial are geared to measure the defendant's sanity...

...It's no wonder that the mentally retarded often go undetected by the courts...

...Supreme Court ruled in Ford v. Wainwright that, before execution, the court must administer a test to determine whether the condemned prisoner understands the crime as well as the punishment...

...Only recently have attorneys begun to realize that mental retardation can be a mitigating factor in criminal cases...

...That scares everybody...

...Ellis and his wife...

...Justice Department...

...The neighbor was sentenced to life...

...He pleaded guilty to raping and killing two elderly women and sexually assaulting and maiming two young girls...

...Experts agree that mentally retarded persons are no more prone to criminal behavior than the rest of us...

...Mentally retarded persons run into the same problem when it comes time to determine whether they are competent enough to understand why they are about to be executed...

...But it remains unclear whether the higher court's interpretation of competence for execution addresses the problems affecting the mentally retarded offender...

...The American Bar Association has proposed new guidelines addressing the handling of mental retardation in the criminal-justice system...

...His attorney said Mason didn't understand what it meant to be executed...

...It is caused by brain injury, genetic disorder, or poor prenatal care...

...If their lawyers cannot prove that they are unfit to stand trial, retarded defendants are forced to face court proceedings they don't understand...

...It can often be cured...

...He had no real grip on what was happening in the trial...

...If [a defendant] is found competent, has a rational understanding of the proceedings, and is found legally sane, then certainly he is eligible for the death penalty...

...He was bounced from one institution to another, including a juvenile training school, a mental hospital, and one of the most violent prisons in the state of Florida...

...He was sentenced to die in 1986 for beating an elderly woman to death with a piece of wood when she refused to give him her money...

...Roach's IQ ranged from sixty-nine to the low seventies...

...His IQ indicates his mental capacity is that of a ten-year-old...

...What's more, estimates Miles Santamour, a Los Angeles-based authority on corrections and retardation, 3.5 to 5 per cent of the national prison population—or 17,000 to 24,000 inmates—are mentally retarded...

...Last July, however, a Federal judge in Macon ordered a new sentencing hearing for Smith, believing that the man lacked the ability to understand the significance of waiving his rights to remain silent and to have an attorney present...

...To explain the impact mental retardation has on an individual's behavior, an attorney must bring in expert witnesses, and that costs money...

...Those people who commit those types of crimes aren't normal anyway...

...We have a stereotype of the mentally retarded as the eternal poster child," says Luckasson...

...At his trial, he acknowledged that he had grabbed Turner at the cash register...

...In fact, the deputy sheriff who interrogated him called him by his nickname, "Noodle...

...Held in isolation through the night, Smith signed a confession in the morning...

...Many mentally retarded defendants are tried and convicted without the nature of their handicap ever being properly disclosed to the jury...

...For three months prior to his arrest, Bowden had been sleeping in an abandoned house, never knowing where his next meal was coming from, says Patricia Smith, one of the attorneys involved in Bowden's unsuccessful clemency pleas...

...H John Brogdon, twenty-five, was executed in Louisiana on July 30, 1987, for the brutal 1981 murder and rape of an adolescent girl...

...And he proclaimed his innocence to the end...

...One of nine children, Mason grew up in poverty...

...One of the jurors told us she knew how badly mentally retarded people are treated in prison," says Clive Stafford-Smith, an Atlanta attorney who is handling Holloway's appeal...

...No one knows how many more mentally retarded inmates now await execution in the United States...

...Retarded persons end up warehoused in inappropriate settings...

...North Carolina, writes frequently on legal affairs...

...For the most part, law-enforcement officers, attorneys, judges, juries, and even psychiatrists and psychologists fail to understand the impact that mental retardation has on criminal behavior...

...The subject has even been raised on an episode of L.A...

...Part of the problem is that the courts treat mental illness and mental retardation as if they are the same...

...If the judge doesn't want the state to pay for experts, a court-appointed lawyer won't be able to make them available...

...Morris Odell Mason, thirty-three, was executed in Virginia on June 25, 1985...

...At age thirty-one, Holloway functions at the level of a sevenyear-old...

...But, say Ellis and Luckasson, few court-appointed psychiatric evaluators know how to determine that...

...While mentally retarded persons can progress, they can never be "cured...

...They'll sign anything if you let them know you approve," Smith says of the mentally retarded...

...That's a position that I as a prosecutor cannot accept," he says...

...He was involved in the crime with his next-door neighbor, who implicated him...

...Just two days after Bowden was executed, the U.S...

...A thorough evaluation might find that they do not understand the wrongfulness or consequences of their action...

...Some people feel mental retardation is a reason to totally excuse the crime that was committed...

...When Turner picked up the hammer, Smith said, he got "carried away...

...He said he did not know who his mother was until she contacted him a week before his execution...

...Oscar is not unique," says Scharlette Holdman, an attorney with the Office of Capital Collateral Representatives, a Tallahassee agency that handles appeals for Florida death row inmates...

...Few state courts recognize that incompetent mentally retarded defendants need to be sent to facilities designed to habilitate them...

...But a disproportionate share of them end up in prison because they are read rights they cannot understand, given lawyers who cannot deal with their disabilities, or brought before judges who don't know what else to do with them...

...Most of them are poor, black, illiterate men...

...Mental retardation impairs one's ability to learn and to adapt to social norms...

...He was a victim himself...

...Mental illness is a disease affecting one's ability to behave rationally...

...There is also Jerome Holloway, who with an IQ of forty-nine is believed to be the most severely retarded death-row inmate in America...

...Arthur C. "Cappy" Eads, a district attorney in Bel-ton, Texas, and chairman of the National Association of District Attorneys, doesn't see any problems with current laws...

...Smith grabbed some money from Turner's wallet and the cash register and fled, shouting that he had killed "Mr...

...So she be kinder to have Holloway put to death.' thought it wasn't bad compared to the streets, says Smith...

...Many mentally retarded inmates appear to be doubly damned," concludes a report by the National Institute of Corrections, an arm of the U.S...

...His clemency attorney, Patricia Smith, is convinced he was innocent...

...Oscar Mason, twenty-seven, has been diagnosed as mentally retarded, as well as psychotic and schizophrenic...

...Mentally retarded persons can be "streetwise," she says...

...He has tried repeatedly to end his own life...

...James Terry Roach, twenty-five, was executed in South Carolina on January 10, 1986, for fatally shooting a teen-age couple when he was seventeen...

...Bowden had been in jail before and 'One badly mentally in prison...

...Poor and uneducated, Stanley was considered "functionally retarded...

...What's more, say Luckasson and Ellis, mentally retarded defendants are often implicated by more sophisticated accomplices who end up with lighter sentences...

...He had an IQ of sixty-six and was diagnosed as both, men tally retarded and paranoid schizophrenic...

...If the state should not execute a mere child," Judge Duross Fitzpatrick wrote of Smith's case, "then, quite possibly, the state should not execute one who is so mentally retarded that they have the judgment, emotions, and intelligence of a ten-year-old...

...Mentally retarded people are usually found sane...

...He was implicated, by a co-defendant who was sentenced to life, in the fatal beating and stabbing of a fifty-five-year-old woman...

...Many mentally retarded inmates-including some awaiting execution—may have confessed to crimes they did not commit...

...Yet mental retardation can interfere greatly with the ability to make sound judgments, resist negative influences, and even understand the nature or consequences of one's actions, says Miles San-tamour, who has co-authored a book on the subject and served as a consultant to the President's Committee on Mental Retardation...

...He was diagnosed as suffering from Huntington's disease, an affliction which causes the brain to deteriorate...

...The state is appealing the order for a new sentencing hearing...

...Those who knew Stanley described him as quiet, accommodating, and eager to please...

...But I don't think there is one state that has a good test to determine competency for a mentally retarded person...

...Henry's IQ was in the low seventies...

...Mason, who is serving a life sentence in Florida for an attempted homicide, has also been sentenced to death for a 1980 murder...

...That's what happened to Jerome Bowden, the Georgian executed in 1986 while his co-defendant got life...

...His IQ ranges from forty-nine to fifty-two...

...Jerome Bowden's clemency attorneys argued that he was not competent...

...Although Mason's history of mental illness and retardation was available to his lawyer and the court-appointed psychiatrists, it was never explained to the jury...

...Ruth Luckas-son, an attorney and special-education professor at the same university, are among the few national experts on the subject of mental retardation and the criminal-justice system...

...At the age of seven, he saw his sister kill her husband...

...While there is little reason to doubt that Smith killed Turner, there is growing controversy about whether he—and others like him—should be sentenced to die...

...But there is Limmie Arther, one of eighteen children born to a South Carolina sharecropper...

...You're saying your client has a defect for which there is no remedy," says Adam Stein, a North Carolina attorney who successfully handled one such appeal...

...One psychiatrist said Stanley had a "dependent personality disorder" which caused him to become the passive accomplice of his more aggressive neighbor...

...11 Ivoti Stanley, twenty-eight,*was executed in Georgia on July 12, 1984, for the fatal bludgeoning and shooting of an insurance collector...

...His mother died when he was eleven...

...Smith is mentally retarded...

...A local jury condemned Smith to death in the electric chair...

...He left the murder scene in a taxi and was apprehended when he couldn't pay the cab fare home...

...When the murder occurred, I believe that nineteen years of anger came out in one fell swoop of rage...

...Frightened, he hid out in the woods all day, then turned himself in after hearing his father plead with him over a loudspeaker...

...They have poor communication skills and often can't recall crucial details about what took place...

...A few minutes later, Dan Turner—the proprietor and a family friend—was stabbed and beaten to death with a hammer...

...He had no prior criminal record...

...They are not...

...James Dupree Henry, thirty-four, was executed in Florida on September 20,1984, for a brutal murder...

...William Alvin Smith's case is not an isolated one...

...These people would do anything to cover up the fact they were mentally retarded," says Luckasson...

...They receive no special treatment, except for being conned and abused regularly by other inmates...

...The prosecutor wants to argue he's some kind of fiend...

...I asked him if he killed the President and he said yes," says Atlanta attorney Stafford-Smith of his client Jerome Hol-loway...

...You can get him to say yes or no to anything, depending on how you phrase the question...

...DeeReid, a free-lance writer based in Pitts-boro...

...Smith, a former vocational-rehabilitation counselor, is president of the Georgia chapter of the Association for Retarded Citizens...

...Still, only a handful of lawyers nationwide know enough about the issue to help their clients...

...He had been in trouble with the law since age fifteen and had served time for shooting a man in the eye...

...So she thought it would be kinder to have him put to death...

...Law, the prime-time soap opera for legal eagles...

...They work hard to disguise the fact they are impaired...

...The Clearinghouse on Georgia Prisons and Jails, a nonprofit advocacy group in Atlanta, suggests there may be as many as 250 mentally retarded inmates on death rows across the nation...

...That means boasting about crimes they may not have committed or acquiescing quickly to police officers in order to win their approval...

...His IQ ranged in the mid-sixties, but Brogdon's attorneys did not have the money to hire expert witnesses to explain the significance of his condition to the court...

...Even when an attorney recognizes that mental retardation may legitimately mitigate his or her client's responsibility for the offense, it's difficult to convey that successfully to a jury...

...But the state parole board's psychiatrist administered one psychological test and found him fit...