Lambert v. State

CHAPEL, P.J.,

concurring in part and dissenting in part:

¶ 1 A majority of the Court today approves the execution of a mentally retarded man who has the mental age of an eight-year-old boy. The Court blithely rejects the claim that the execution of the mentally retarded violates our state and federal constitutions. In deciding to allow the killing of mentally retarded citizens, the majority swallows all sense of decency, disregards the will of the people of Oklahoma and ignores the principles and values of Article II, section 9 of the Oklahoma Constitution. 1 Because our State constitution will not tolerate the execution of a mentally retarded man, I respectfully dissent to the imposition of the death penalty in this case. 2 I concur in affirming Robert Wayne Lambert’s convictions, but I would modify the sentences to life without the possibility of parole and order the sentences to run consecutively.

¶ 2 Although he is a grown man, Lambert cannot make change. He spells no better than a seven year old and reads at a third grade level. When Lambert was seventeen years old, the Oklahoma Juvenile Services Division tested him. The State’s testing revealed that Lambert has an IQ of 68 and that he is mentally retarded. Prior to this testing, Lambert struggled through special education classes. Lambert barely managed to get through kindergarten. Finally he dropped out of school when he was in the seventh grade. Lambert was never able to function successfully in a school setting, and after he dropped out of school, his mental retardation limited his ability to work or survive in the outside world. Lambert’s entire life has been shaped by his mental retardation. Although he is now thirty years old, he has the mental age of an eight year old. His thinking and reasoning are equivalent to that of a child in the second or third grade. His moral culpability is, of necessity, on the same level.

¶ 3 At issue is not whether Robert Wayne Lambert should be punished for his actions; he should. The question is how we as a society should punish the mentally retarded. The answer to this question speaks volumes about us as civilized, decent people. The majority’s answer is shameful.

¶4 Oklahoma does not execute children 3 *241 or the insane 4 because to do so would violate our common, evolving sense of decency. 5 It is incompatible with this sense of decency and it is morally indefensible then to kill someone who thinks, reasons and operates at the level of a third grader. Executing such a man is comparable to executing an eight year old boy.

¶ 5 The Diagnostic and Statistical Manual of Mental Disorders (1994) (DSM-IV) 6 defines a mentally retarded individual as one whose disability manifests itself before age eighteen and who has “significantly subaver-age intellectual function,” i.e., an IQ below seventy, accompanied with “significant limitations in adaptive functioning.” 7 Unlike mental illness, 8 mental retardation is a permanent developmental condition marked by low intellectual capacity. This low intelligence affects and limits the mentally retarded person’s ability to think, plan and function. It cannot'be ameliorated by drugs or psychotherapy, although the mentally retarded individual may be taught skills and strategies to better function in society. In contrast to mental illness, the likelihood of “faking” mental retardation is minimal.

¶ 6 Oklahoma recognizes the unique niche that the mentally retarded occupy in our society and in Title 10 of the Oklahoma Statutes the State provides institutional care for mentally retarded persons who have a mental age not above that of an average nine year old. 9 Oklahoma recognizes that it needs to step in and provide care and assistance to the mentally retarded. Today, the Court sanctions killing these same individuals.

¶ 7 In choosing to allow the execution of the mentally retarded, the majority relies on Penry v. Lynaugh, 10 in which the United States Supreme Court held that the federal constitution requires states to allow a defendant to introduce evidence of his mental retardation as a factor mitigating against the imposition of the death penalty. However, the Court refused to bar completely the execution of the mentally retarded under the federal constitution. 11 At the time the Supreme Court decided Penry, only the federal government and two states prohibited the execution of the mentally retarded. Even under those circumstances, four Supreme Court justices believed that the Eighth Amendment barred outright the execution of the mentally retarded. Justice O’Connor, who authored the plurality opinion, was unwilling to go that far concluding that she could not say that at that time there existed a national consensus barring the execution of the mentally retarded. However, Justice O’Connor noted that the Court’s position could well change should a national consensus to ban the execution of the mentally retarded emerge.

*242 ¶ 8 Since Penry the national landscape has changed dramatically. Ten more states have banned the execution of the mentally retarded. 12 Now, twelve death penalty states, the federal government and thirteen non-death penalty jurisdictions 13 ban the execution of the mentally retarded. New Hampshire has not imposed the death penalty on anyone since 1976. Missouri currently has legislation pending to bar the execution of mentally retarded persons. 14

¶ 9 Other states, while not explicitly banning the execution of mentally retarded persons, prohibit the execution of persons with limited mental abilities. For example, Connecticut provides, “The court shall not impose the sentence of death on the defendant if ... at the time of the offense ... his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution.” 15 California also provides “evidence of diminished capacity or of a mental disorder may be considered by the court ... at the time of sentencing or other disposition or commitment.” 16 Courts have overturned or modified death sentences in part because of a defendant’s mental retardation. 17

*243 ¶ 10 As evidenced by state and federal legislation as well as public opinion polls, 18 the American people disfavor executing the mentally retarded. A majority of Oklaho-mans oppose the imposition of the death penalty on mentally retarded defendants. 19 The American Bar Association and the American Association of Mental Retardation recommend banning the execution of mentally retarded persons. Thus, while the death penalty continues to be an accepted form of punishment, the execution of the mentally retarded is out of step with the values of society.

¶ 11 The growing ban on the execution of the mentally retarded has much in common with the ban on the execution of two other traditionally protected groups: children and the insane. The rationale for barring the execution of children was set out in Thompson v. Oklahoma. 20 Of great importance to the Thompson Court was the fact that under Oklahoma law children were treated differently from adults. The Court was also swayed by the eighteen states that specifically required that persons be at least sixteen years old to be eligible for the death penalty 21 and by the American Bar Association’s recommendation that children be exempt from the death penalty. In barring the execution of the insane, the United States Supreme Court had a visceral reaction against the execution of such persons finding that the execution of the insane offended humanity and constituted a barbaric act of “exacting mindless vengeance.” 22

¶ 12 The same concerns and interests involved in the ban on the execution of children and the insane are at issue in the execution of the mentally retarded. Oklahoma provides extra-protection and treats mentally retarded persons differently from non-mentally disabled persons, as evidenced by Title 10 of Oklahoma Statutes. Every caring human being experiences a visceral reaction of revulsion at the thought of executing an individual whose social and mental abilities are no greater than that of an eight year old boy. Indeed, because of the society’s protective role over the mentally retarded, the systemic execution or extermination of the mentally disabled is a crime against humanity that fills one with shock and horror 23 The repugnance evoked by the image of executing the mentally retarded is evidenced by the growing consensus of states, citizens and professional organizations that now ban or urge the banning of the execution of the mentally retarded.

¶ 13 As the State of New York noted when it exempted the mentally retarded from the death penalty, the execution of the mentally retarded fails to serve the penological goals of retribution or deterrence, which underpin and justify the imposition of the death penalty. 24 The heart of retribution is that “a criminal sentence must be directly related to the personal culpability of the criminal of *244 fender.” 25 “Among the mentally retarded, ‘reduced ability is found in every dimension of the individual’s functioning, including his language, communication, memory, attention, ability to control impulsivity, moral development, self-concept, self-perception, suggestibility, knowledge of basic information, and general motivation.’ ” 26 Mentally retarded individuals have limited reasoning powers and are highly impulsive. 27 They are far less likely to understand or foresee the consequences of their actions. 28 These fundamental and immutable characteristics compel the conclusion that mentally retarded citizens, like children, lack the moral culpability to subject them to the ultimate penalty of death, even though they may be subject to other severe punishments such as life imprisonment or life imprisonment without the possibility of parole. The execution of the mentally retarded “is ... ‘nothing more than the purposeless and needless imposition of pain and suffering.’ ” 29

¶ 14 Moreover, due to the restricted thinking and reasoning powers of the mentally retarded, it is highly unlikely that the threat of the death penalty would have any deterrent effect. A mental retarded person, whose ability to engage in abstract thinking is minimal, at best, will have great difficulty in comprehending his own execution. It is unlikely then that the threat of this punishment will deter capital crime any more than the execution of children or the insane will operate as a deterrent.

¶ 15 The Oklahoma Constitution bars “cruel or unusual punishments.” 30 It is our duty to interpret and enforce the Oklahoma Constitution. Given Oklahoma’s traditional protection of the mentally retarded, the growing national ban on the execution of the mentally retarded, and the lack of penological goals advanced by the execution of these individuals, I believe the execution of the mentally retarded is a cruel or unusual punishment prohibited under Oklahoma law. I therefore respectfully dissent to the execution of a mentally retarded man who has the mental age of an eight-year-old boy.

. Article II, section 9 of the Oklahoma Constitution prohibits cruel or unusual punishment.

. Courts and judges are often criticized for "legislating” or making "sociological” decisions. Usually such criticism comes from extreme political factions or other persons ignorant of our system of government. When, however, a judge is presented with a properly raised justiciable issue, it is his or her duty to decide that issue in accordance with the law. In this case we are squarely presented with the issue of whether or not the imposition of the death penalty on a mentally retarded person violates the Eighth Amendment to the United States Constitution or Art. 2, § 9 of the Oklahoma Constitution. The issue is properly raised, and we must decide it. Certainly, a judge might come down on either side of the issue; he might decide it wrongly, but he must decide. To suggest that the issue in today’s opinion can or ought to be decided by the legislature, while politically correct in some circles, is patently absurd. The legislature cannot determine the constitutionality of its own acts. In our system, the constitutionality of legislative acts can only be determined by the courts. See Marbury v. Madison, 1 Cranch 137 , 5 U.S. 137 , 2 L.Ed. 60 .

. Thompson v. Oklahoma, 487 U.S. 815, 837 , 108 S.Ct. 2687, 2700 , 101 L.Ed.2d 702 (1988) (Eighth Amendment prohibits execution of person who is under age of sixteen at time of commission of crime).

. Ford v. Wainwright, 477 U.S. 399, 410 , 106 S.Ct. 2595, 2602 , 91 L.Ed.2d 335 (1986) ("Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane”). See 22 O.S.1991, § 1005 et seq.

. Trop v. Dulles, 356 U.S. 86, 100-01 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630 (1958) (plurality opinion) (stating that "the words of the [Eighth] Amendment are not precise and their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”).

. Put out by the American Psychiatric Association, this treatise is recognized as the most comprehensive classification and reference manual on mental disorders, their manifestations and treatment.

. DSM-IV at 39.

. For a discussion on the differences between mental illness and mental retardation see Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L.Rev. 414, 422-26 (1985) (hereinafter Mentally Retarded Criminal Defendants ).

. 10 O.S.1991, § 1414 provides: Mentally retarded persons who are legal residents of this state and who have a mental age not above that of the average nine-year-old child ... may be admitted to an institution ... or provided community services ... Other mentally retarded persons who are residents of this state and who are above such mental age may be admitted or provided community services ... upon recommendation of the superintendent of the institution and approval of the Director.

. 492 U.S. 302, 340 , 109 S.Ct. 2934, 2958 , 106 L.Ed.2d 256 (1989) (plurality opinion).

. Of course, the United States Supreme Court did not and could not speak to this issue under the Oklahoma Constitution. Only this Court can answer the question of whether the execution of the mentally retarded violates the Oklahoma Constitution.

. Ark.Code Ann. § 5 — 4—618(b) (Michie 1993) ("No defendant with mental retardation at the time of committing capital murder shall be sentenced to death”); Colo.Rev.Stat. § 16-9-403 (Supp.1994) ("A sentence of death shall not be imposed upon any defendant who is determined to be a mentally retarded defendant pursuant to section 16-9-402. If any person who is determined to be a mentally retarded defendant is found guilty of a class 1 felony, such defendant shall be sentenced to life imprisonment”); Ga. Code Ann. § 17-7-131 (j) (1990 & Supp.1994) ("In the trial of any case in which the death penalty is sought which commences on or after July 1, 1988, should the judge find in accepting a plea of guilty but mentally retarded or the jury or court find in its verdict that the defendant is guilty of the crime charged but mentally retarded, the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life”); Ind.Code Ann. § 35-36-9-6 (West Supp.1994) (“If the court determines that the defendant is a mentally retarded individual under section 5 of this chapter, the part of the state’s charging instrument filed under IC 35-50-2-9(a) that seeks a death sentence against the defendant shall be dismissed.”); Kan. Stat. Ann. § 21-4623 (d) (Supp.1994) ("If, at the conclusion of a hearing pursuant to this section, the court determines that the defendant is mentally retarded, the court shall sentence the defendant as otherwise provided by law, and no sentence of death shall be imposed hereunder”); Ky.Rev. Stat. Ann. § 532.140 (Michie 1990) ("no offender who has been determined to be a seriously mentally retarded offender under the provisions of KRS 532.135, shall be subject to execution”); Md.Code Ann. Art. 27, § 412(g)(1) (1992) ("If a person found guilty of murder in the first degree was, at the time the murder was committed, less than 18 years old or if the person establishes by a preponderance of the evidence that the person was, at the time the murder was committed, mentally retarded, the person shall be sentenced to imprisonment for life or imprisonment for life without the possibility of parole and may not be sentenced to death”); Neb.Rev.Stat. §■ 28-105.01(2) (1997) ("Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person with mental retardation"); N.M. Stat. Ann. § 31 -20A-2.1(B) (Michie 1994) ("The penalty of death shall not be imposed on any person who is mentally retarded”); N.Y.Crim. Proc. Law § 400.27(12) (1995) ("In the event the defendant is sentenced pursuant to this section to death, the court shall thereupon render a finding with respect to whether the defendant is mentally retarded. If the court finds the defendant is mentally retarded, the court shall set aside the sentence of death and sentence the defendant either to life imprisonment without parole or to a term of imprisonment for the class A-I felony of murder in the first degree other than a sentence of life imprisonment without parole”); Tenn.Code Ann. § 39-13-203(b) (1991 & Supp.1994) ("Notwithstand-' ing any provision of law to the contrary, no defendant with mental retardation at the time of committing first degree murder shall be sentenced to death"); Wash. Rev.Code Ann. § 10.95.030(2) (West Supp.1995) ("In no case, however, shall a person be sentenced to death if the person was mentally retarded at the time the crime was committed”).

. These jurisdictions include twelve states and the District of Columbia.

. Missouri SB 1288 (1998). In addition, on Sept. 29, 1995, Missouri Governor Mel Carnahan pardoned a mentally retarded man who had been on death row for eight-and-a-half years after evidence emerged showing the man was innocent. Protecting the Mentally Retarded, from Capital Punishment: State Efforts Since Penry and Recommendations for the Future, 22 N.Y.U. Rev. L. Soc. Change 59, 61 (1996).

. Conn. Gen.Stat. § 53a-46a(h) (1997).

. Ca. Penal Code § 25.

. See, e.g., Hadley v. Alabama, 575 So.2d 145 (Ala.Crim.App.1990); Arizona v. Jimenez, 165 *243 Ariz. 444 , 799 P.2d 785 (1990); Brown v. Florida, 526 So.2d 903 (Fla.1988), ce rt. denied, 488 U.S. 944 , 109 S.Ct. 371 , 102 L.Ed.2d 361 (1988).

. See D.W. Keyes & W.J. Edwards, Mental Retardation and the Death Penalty: Current Status of Exemption Legislation, American Bar Association (1997).

. Id. at 2, 2n.l5.

. 487 U.S. 815 , 108 S.Ct. 2687 , 101 L.Ed.2d 702 (1988).

. It should be noted that sixteen was the lowest age allowed by statute. Many states and the federal government bar the execution of anyone who is eighteen at the time they committed the crime.

. Ford v. Wainwright, All U.S. 399, 409-10, 106 S.Ct. 2595, 2602 , 91 L.Ed.2d 335 (1986).

. This repugnance was evident in the Nurem-burg trials, which prosecuted war criminals for executing the mentally retarded as well as for other war crimes and crimes against humanity.

. In reinstating the death penalty in Gregg v. Georgia, 428 U.S. 153, 182-83 , 96 S.Ct. 2909, 2929-30 , 49 L.Ed.2d 859 (1976), the Supreme Court stated:

Although we cannot "invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of penology,” the sanction imposed cannot be so totally without penological justification that it results in gratuitous infliction of suffering.

The death penalty is said to serve two principle social purposes: retribution and deterrence of capital crimes by prospective offenders.

. Tison v. Arizona, 481 U.S. 137, 149 , 107 S.Ct. 1676, 1683 , 95 L.Ed.2d 127 (1987).

. Penry, 492 U.S. at 345 , 109 S.Ct. at 2961 (J. Brennan dissenting) (citation omitted).

. Mentally Retarded Criminal Defendants, at 427-32.

. Id.

. Thompson, 487 U.S. at 838 , 108 S.Ct. at 2700 .

. Okl. Const. Art. 2, § 9. In contrast, the Eighth Amendment of the federal constitution bars the imposition of "cruel and unusual punishments.” (emphasis added) See Dodd v. State, 1994 OK CR 51 , 879 P.2d 822 (Chapel, concurring in part and dissenting in part).