Friday, July 20, 2007

Death Penalty

And Mental Incompetence


The Cool Justice Report
July 20, 2007

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

The killer of nine year old Jessica Lunsford is fighting to save his life in a Florida courtroom. In March, a jury convicted John Evander Couey of kidnapping, rape and murder, further recommending the death sentence by a 10-2 vote.

Under Florida law the judge must now decide whether to accept the jury's recommendation of sentence Couey to life in prison. Couey's defense team is claiming that he suffers from mental retardation, a fact, which if proved, could spare him the death penalty.

Since the reinstatement of the death penalty in 1976, the issue of the execution of mentally disabled defendants has created controversy and debate. In 1986 the United States Supreme Court prohibited the execution of mentally incompetent offenders, and mandated adversarial competency proceedings prior to such attempted executions.

A five member majority of the Supreme Court ruled that the Eighth Amendment's cruel and unusual punishment clause prohibited the execution of an insane person. The court did not define insanity, but the plurality decision stated that a person must be aware of the impending execution and why that prisoner is going to be executed. The court determined that the condemned should be permitted to present evidence from defense mental health experts as well.

In 1989, the court again addressed the issue of whether the execution of the mentally retarded violated the Eighth Amendment proscription of cruel and unusual punishment. Justice O'Connor, writing for the Supreme Court majority, rejected the claim that the Eighth Amendment's proscription of cruel and unusual punishment prohibited the execution of the retarded. Instead, the court ruled that the jury should have been allowed to consider the defendant's mental retardation as a mitigating factor in weighing the punishment to be imposed. The court determined that such instructions were essential to a jury expressing its sentence as a "reasoned moral response."

In 2002, the Supreme Court revisited the issue again, but this time ruled that the application of the death penalty to defendants with mental retardation is per se "cruel and unusual." Drawing on earlier language that the basic concept underlying the Eighth Amendment is the dignity of man, Justice Stevens concluded that a review of legislation in 19 states and the federal government established a consistency of the direction of change and as powerful evidence that society views mentally retarded defendants as "categorically less culpable than the average offender."

The majority discussed three policy considerations that weigh against executing the mentally retarded: relative culpability; the relationship between mental retardation and the purposes served by the death penalty; and the strength of the procedural protections that may not be afforded mentally retarded defendants. Because of problems with "reasoning, judgment, and control of their impulses," there is "serious question" whether either justification advanced for the death penalty - "retribution and deterrence of capital crimes by prospective offenders" applies to retarded offenders.

The court also acknowledged that the mentally retarded face risks not associated with the average offender: (1) these defendants may be more apt to give false confessions; (2) they may have lesser ability to effectively argue mitigation; (3) they may be less able to give meaningful assistance to their counsel; (4) they often make poor witnesses; (5) their demeanor may create an impression of lack of remorse.

Florida has set an I.Q. of 70 as a threshold for mental retardation in death penalty cases. In Couey's case the defense had offered testimony at trial that his I.Q. was 64. Prosecution experts contend his I.Q. is 78 and he possesses the requisite life skills that militate against a finding of mental retardation.

Regardless of the court's ultimate decision, Jessica's father, Mark Lunsford, will continue his campaign to have stricter penalties for sex offenders. On Monday, Texas Governor, Rick Perry, signed the bill adopting Jessica's Law in that state. That law created mandatory minimum sentences for sex offenses against minors under the age of 13.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, American Academy of Trial Counsel. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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