Posted on 09/28/2003 6:50:35 AM PDT by Sub-Driver
Suddenly, prisons full of 'retarded' A high-court ruling brings a flood of death-row appeals. By L. Stuart Ditzen Inquirer Staff Writer
Nobody called Roger Judge mentally retarded when he murdered two people in Philadelphia, escaped from prison, made his way to Canada in 1987 and - while on the run - mailed an appeal of his sentence back to Pennsylvania.
But that was then. Now, lawyers for Judge say he is retarded.
And if they can prove it, Judge, 41, who is on death row in Pennsylvania, will be saved from execution.
In June 2002, the U.S. Supreme Court ruled it unconstitutional for a retarded person to be executed. It did not take long for a burst of retardation claims to begin flowing from death-row inmates.
An estimated 10 percent of the nation's 3,500 prisoners facing execution are pressing those appeals and seeking to downgrade their punishment to life in prison. In civilian life, the mentally retarded are widely considered to make up 2 percent to 3 percent of the population.
Prosecutors say some retardation claims - such as that of Judge, who for a year managed to outsmart and outrun the Pennsylvania criminal-justice system - seem ridiculous.
"We can see from the claims themselves that they are questionable," said Philadelphia Deputy District Attorney Ronald Eisenberg. "The facts of the cases are generally completely inconsistent with the idea that the defendants have mental retardation."
Defense lawyers counter that many death-row inmates - though lacking any history defining them as retarded - may have valid claims, based on low intelligence and a lack of ability to adapt and function in society.
Some advocates for the retarded fear that pinning "retarded" labels on society's most violent criminals could create a stigma for retarded people in the general population, the vast majority of whom are nonviolent.
"From these petitions, you would think that the mentally retarded are an especially murderous group in our society," Eisenberg said. "I think the opposite is true. The term has been hijacked as another method of arguing the death penalty."
One thing seems sure: Execution day will be set back for death-row inmates who file retardation claims. Lawyers say the need to evaluate the claims could add years to the exceptionally long litigation process already associated with capital cases.
In Philadelphia and its four surrounding Pennsylvania counties, 12.5 percent of the convicted murderers on death row - 18 of 144 - have pending retardation claims.
Montgomery County District Attorney Bruce L. Castor Jr. agreed in July to remove two murderers from death row based on what his office considered bona fide claims of retardation. The two - Arthur Faulkner, convicted of killing two archaeologists in 1988, and Nathan Scott, convicted of killing a 66-year-old woman during a burglary in 1998 - will serve life in prison.
In Philadelphia, a decision is pending in the case of Harrison "Marty" Graham, convicted of killing seven women in the mid-1980s and keeping their bodies at his North Philadelphia apartment. Norris E. Gelman, a defense lawyer well-versed in capital cases, said so many petitions had been filed because of uncertainty about the legal definition of mental retardation.
By some definitions, an IQ lower than 70 with a lack of specific adaptive skills constitutes retardation. But legal definitions often are more vague.
"There are several different standards, and you don't know what's what," Gelman said. "Right now, you're negligent if you don't file if there is any possibility your client meets any of several definitions of mental retardation."
Richard C. Dieter, executive director of the Death Penalty Information Center, a nonprofit group in Washington, said death-row inmates who can make an "arguable claim" for retardation are likely to make it, regardless of whether they can document a history of retardation.
In its ruling last year, the Supreme Court said the execution of a retarded person amounted to cruel and unusual punishment, which the Constitution bans.
The ruling applied to 20 states, including Pennsylvania and New Jersey, where the execution of retarded people was permissible. (It is impermissible under Delaware law.) The court left it to each state to establish the definition of retardation.
In New Jersey, where only one of 15 death-row inmates has claimed retardation, no guidelines have been set. In Pennsylvania, where about 10 percent of 237 death-row inmates have filed petitions, at least two bills have been introduced in the General Assembly.
State Rep. Dennis M. O'Brien (R., Phila.), chairman of the House Judiciary Committee, said no final language had been formulated, but he wanted a strong definition of retardation.
"I think there are people absolutely who are going to take advantage of this Supreme Court decision and claim they are mentally retarded," O'Brien said. "I don't want people pretending to have retardation disabilities to avoid a serious penalty."
The case of Roger Judge is likely to undergo scrutiny.
On Sept. 14, 1984, Judge, then 24, fatally shot Christopher Outterbridge, 18, and Tabatha Mitchell, 15, as they sat on the front porch of Outterbridge's home in the city's Logan section.
Judge was convicted of the murders in 1987 and sentenced to die. Two days after sentencing, he vanished, leaving guards at Holmesburg Prison baffled.
Two months after his escape, Judge, acting as his own attorney, mailed an appeal of his death sentence to the state Supreme Court. He made his way to Canada, where the death penalty was and is banned. If he were arrested there, Canada, by international agreement, would refuse to extradite him to Pennsylvania for execution. And indeed Judge was arrested - in June 1988 on robbery charges in Vancouver. He was convicted and sentenced to 10 years in prison. From prison, Judge sent a second appeal in his murder case back to Pennsylvania.
In 1998, when he completed his sentence, Canadian authorities extradited Judge to New York, avoiding a direct link to Pennsylvania. New York then returned him to Pennsylvania. Judge now is on death row.
Judge's public defenders, Anne Saunders and Stephen Marley, assert in legal papers that he is retarded because he received low grades in school, has poorly developed "inner controls," is emotionally unstable, lacks the ability to think rationally, and has "sub-average" intelligence.
Prosecutors say that for someone now claiming retardation, Judge made a diabolically clever fugitive.
Then they are too incompetent to be at large among normal law-abiding people.
And so all retarded people should all be permanently institutionialized for their own protection and the protection of those around them.
Can't have it both ways.
Often is not good enough.
You have said there are people so retarded that they are incapable of being responsible for their actions.
People incapable of being responsible for their actions should not only remain locked up--but should be locked up before they hurt someone.
To be a free citizen requires that one be competent to understand the law.
To say that someone is not able to follow the law, is to say that person is ungovernable--is like a wild man.
Should we have wild men loose on the streets . . . .
Wild men who might in a moment out of some retarded fantasy, turn on any one of us or on one of our children?
Is it lack of intelligence or an evil nature at work?
It would seem to me that evil is something apart from intelligence, as even smart people break the law.
I know dogs--dogs whose IQ's must be the equal of a four-year old boy--yet who would never kidnap, rape, torture, mutilate, and kill someone.
And I--if not you--I am sure there are retarded people who would never do such a thing, too.
It is not a matter of intelligence--it is the matter of heartless viciousness that is the object of punishment.
IQ has NOTHING to do with it.
But if IQ has to do with it, then lock up all stupid people as being wild animals, incapable of following the law and too dangerous to be among us.
Incarceration of the individual is PUNISHMENT for the individual and PROTECTION of society from future criminal acts by an individual who doesn't have the mental capacity to distinguish between right and wrong. The death penalty accomplishes both aims and reduces the burden on society to pay for lifelong incarceration.
A half-way house is just a publically funded boarding house for a criminal waiting to commit the next crime. When said criminal does commit the next crime, the persons in the legal system that enabled the crime should be jointly liable for the criminal act.
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