By
The Associated Press
PHOENIX - A commission reviewing how Arizona administers the death penalty is headed for a showdown over whether the state should join others in banning executions of mentally retarded criminals.
Of the 38 states with the death penalty, 13 forbid sending mentally retarded people to the death chamber. The question of whether Arizona should follow suit ties into others, including how mental incompetence is defined and whether the incompetent should be treated in an attempt to make them eligible to be executed.
Defense lawyers and others serving on Attorney General Janet Napolitano's Capital Case Commission are preparing specific proposals for the commission to vote on Feb. 28.
The debated ban faces opposition from some commission members, including prosecutors who said it would be difficult to find a workable and fair standard.
The commission's deliberation comes as several related proposals are pending in the state Legislature. One bill would specifically ban executions of people ruled by a judge to be retarded after psychological exams. Another would spell out processes for finding an inmate mentally incompetent and, if found incompetent due to a "mental disorder," require that a death sentence become imprisonment for natural life.
Derived from a U.S. Supreme Court ruling, Arizona's current standard is whether inmates are aware of their death sentence and the reason it was imposed.
"It's a very, very low standard to be executed," Napolitano said.
If condemned people are found to be incompetent, state law says their disease or "defect" is supposed to be treated so the people can be restored to competency, allowing them to go to the death chamber.
That approach is unfair and unworkable, said commission member Jim Bush, a mental health advocate and lobbyist.
Bush said treatment to restore competence for retarded people makes no sense because their condition "is probably not treatable."
Bush also cited the existing ban on executing people who were 15 or younger when their crimes were committed.
For a retarded person whose functional age is less than 15, Bush said, "unless you're going to execute children from 15 down to 9, what's the difference?"
For people found incompetent due to mental illness, there is a constitutional issue, Bush said.
The Arizona Supreme Court ruled in a 1987 that the state Constitution's privacy protections creates a right to refuse medical treatment.
That creates a serious question of whether the state can force a condemned prisoner to undergo treatment aimed at making an execution possible, said Bush. "As a matter of principle, you shouldn't force it."
A related issue is whether requiring physicians to treat condemned inmates to restore competency violates medical ethics, said defense lawyer Lee Stein, a commissioner and former Napolitano assistant. "It's not treatment to make their life better."
Bush and others advocating a ban want Arizona to adopt Maryland's system of commuting an incompetent's person death sentence to life in prison.
Yuma County Attorney Patricia Orozco said it would be better to continue letting trial judges consider a person's mental state and history as possible mitigating factors than to try to draw a "bright line" standard.
There could be a street-wise person with an IQ of 65 who should be eligible for execution but a person with an IQ of 72 who should not, Orozco said.
While ban supporters said it should be adopted as a statement of principle with implementation criteria decided later, other commission members said how it would be implemented needs to be considered up front.
"The whole problem is going to be a determination" of who falls under whatever standard is used, said Charles R. Hastings, a prosecutor who recently stepped down as Yavapai County attorney.
One set of mental-competency criteria already in state law "sounds like a description of half the defendants that have ever appeared in my courtroom," said another commissioner, Superior Court Judge Steven Conn of Mohave County.
Conn also questioned whether a person's death sentence should be scrubbed because of a competency finding based on a limited snapshot of a person's mental health. "Everyone has ups and downs."
