Election Section

The tricky question of what makes a person mentally retarded now falls before state lawmakers, judges and prosecutors, following the U.S. Supreme Court ruling that found executing such people unconstitutional. 

The way states respond could affect the appeals of dozens — even hundreds — of death row convicts. 

“Therein lies, in my state and others, the battle ahead,” said Texas state Sen. Rodney Ellis, who sponsored legislation to ban executing the mentally retarded that Texas Gov. Rick Perry vetoed last year. 

Texas is one of 20 states that, until Thursday’s decision, allowed execution of the mentally retarded. Now lawmakers must pass bans, establish what defines the condition, and set rules so juries and judges can decide whether a defendant qualifies. 

The court’s ruling did not lay out specific standards for states, though it referred to guidelines set out by the American Association of Mental Retardation. 

Those guidelines, echoed in varying degrees by the 18 states that already banned such executions, call for three standards to determine mental retardation: subaverage intellectual functioning, usually an IQ of 70 or below; poor adaptive skills, such as inability to hold a job or communicate with others; and the onset of symptoms before age 18. 

In layman’s terms, that means someone who can’t handle simple intellectual tasks, whose mental condition hampers his or her ability to get along in life, and who has struggled with the problems since youth, said James Ellis, the University of New Mexico law professor who successfully argued the Supreme Court case. 

But prosecutors, many who sided with the state of Virginia in its losing fight before the high court, said the issue was riddled with problems — from the majority decision’s citing of poll results, to doubts about the accuracy of the guidelines. 

“Those (guidelines) are extraordinarily subjective. IQ tests themselves are subjective,” said Joshua Marquis, district attorney in Astoria, Ore., a state that now must craft a ban. “IQ tests ... can vary by 20, 25 points. It’s going to be a very difficult road.” 

In Alabama, Attorney General Bill Pryor asked whether the medical definition is appropriate for the legal world, and warned again about “those who would deceive the courts by claiming they are mentally retarded when they are not.” 

Psychologists who work on the issue scoff at that notion. “Anyone who knows what they’re doing ... will know when someone is trying to fake it,” said Denis Keyes, a psychologist and associate professor of special education at the College of Charleston in South Carolina. 

Those who fought for the ban said Pryor’s skepticism is unfounded, though common. 

“I’m not surprised about that. In every state that’s passed bills, that’s always the question,” Ellis said. But once in place, the system works well, he said. 

“There’s a widely accepted definition of what ’mentally retarded’ is,” said John Blume, a capital defense lawyer in South Carolina. “I don’t see any reason to deviate from that unless you’re trying to execute someone who is mentally retarded.” 

Other challenges await the states as they try to implement the ban. They include deciding whether juries or judges will determine if a defendant is mentally retarded and what burden of proof must be met. 

Those issues could be resolved by state legislatures, or could go straight to the courts by appeal. 

In South Carolina, Blume said he expected the case of Herman Hughes — sentenced to death for killing a video store clerk when he was 16 — would be the likely vehicle for an appeal to the state’s law. Hughes’ mental abilities were an issue at trial, though the state disputed he was retarded. 

Estimates for how many inmates might appeal based on the new ruling vary widely. Defense lawyers say it could be hundreds — between 10 percent and 20 percent of the death row inmates in states that did not previously ban execution of the retarded. More are expected in states where bans were passed that were not retroactive. 

Prosecutors say that few of those appeals will win. But the courts will still see plenty of them filed. 

“Just because someone isn’t retarded doesn’t mean they won’t raise the claim,” said Marquis, the Oregon prosecutor. “When you’re on death row, you raise every claim you can.”