A bill to determine whether a judge or jury should decide if a person accused of a crime is mentally retarded was delayed by the Utah Senate Thursday morning.

The Senate Judiciary Committee unanimously approved Senate Bill 8. This decision will align Utah with the June ruling of the United States Supreme Court that the execution of the mentally retarded is unconstitutional. The mentally retarded individuals sentenced to death row in Utah do not have protection.

Sen. Lyle Hillyard, R-Logan, a member of the Judiciary Committee, said although the committee unanimously agreed the mentally retarded should not be on death row, the real debate between members is who decides if the accused is mentally retarded.

Paul Boyden, executive director for the Statewide Association of Prosecutors, said judges are already making similar decisions.

"Judges make those decisions with competency issues," Boyden said. "They make those decisions under Fifth Amendment confession issues and under Fourth Amendment search and seizure issues. Why should they not make them under Eighth Amendment cruel and unusual punishment issues as directed by the Supreme Court?"

Boyden said if the jury decides on issues of mental retardation it will takes more time and money, create more roadblocks for the prosecution and increase the chance for error.

Hillyard said as the bill stands, if the defense lawyer claims his or her client is mentally retarded, the judge would hold a preliminary hearing to make that decision. The trial would continue and the jurors would have no influence on the decision.

"It is our constitutional right to let the jury decide those decisions in court," Hillyard said.

Sen. James Evans, R-Salt Lake City, told The Associated Press that the decision by a jury would eliminate any injustice.

"We need to make absolutely sure we're not executing someone who's mentally retarded," Evans said.

According to SB 8, mental retardation is defined as a "significant general sub average intellectual reasoning" or "a significant deficiency in adaptive functioning." These conditions must be manifest before the age of 22.

The judge decides if the accused fits the definition of mentally retarded by looking at IQ tests, school records and psychological evaluations.

Hillyard said 11 people sit on Utah's death row, and he will not be surprised if some of them claim mental retardation. He added people need to know that although the mentally retarded cannot be executed, they can be sentenced to life in prison with no parole.

The bill clearly outlines that mental retardation is not the same as mental illness, which is a disease or defect that substantially impairs a person's mental, emotional and behavioral functioning.

The U.S. Supreme Court in Atkins v. Virginia ruled in favor of Atkins, who was convicted of shooting an Air Force enlisted man in 1996 for beer money. Atkins' lawyer claimed his client was mentally retarded. Atkins had an IQ of 59 and had never lived on his own or held a job.

Boyden said the Supreme Court ruled the mentally retarded could not be executed because of the number of states that had already added statues to their state law stopping the executions.

"There was a national consensus, and, therefore, it became cruel and unusual punishment for those states that didn't exclude the whole class," Boyden said.

Boyden said, however, anyone who has mental illness, brain dysfunctions or injury to the head cannot be treated the same way across the board as those who have mental retardation. He said the U.S. Supreme Court would most likely have to deal with this issue again.

"The Atkins' decision is not really sound because the fact that someone is mentally retarded shouldn't be the only criterion," Boyden said. "It should be that they are mentally retarded, and then add other criteria to it."



Copyright Brigham Young University 7 Feb 2003