Texas Execution Tests the Limits of Comprehension

The execution chamber in Huntsville, Tex., will be busy Wednesday night. Two inmates are scheduled to die by lethal injection — one of whom, Oliver David Cruz, has repeatedly tested below the threshold for mental retardation — and Governor George W. Bush will not be there.

In the wake of the Gary Graham execution, which garnered significant international media attention, Bush may be quite pleased to relinquish control over these cases; with the governor on the national campaign trail, the responsibility for passing final review falls to Lieutenant Governor Rick Perry. Unfortunately for Bush, the long-term legal and moral questions (should mentally retarded inmates be exempt from capital punishment?) raised by Cruz's case will always end up back on his desk.

Oliver David Cruz, whose IQ has been variously measured at 83 and 63 — below 70 being the generally accepted threshold for mental retardation — has become a focal point for yet another emotional debate over Texas's execution practices. Cruz was convicted 12 years ago of the rape and stabbing murder of 24-year-old Kelly Donovan, an Air Force linguist in San Antonio. Cruz has confessed, and, his advocates argue, shows anguished remorse. His is not, however, the kind of remorse one might expect from an adult, Cruz's lawyers insist. Cruz's comprehension of his crime and the implications of his actions are childlike, similar to the reaction of a five-year-old who knocks over a glass of milk and has no idea he's done something wrong until his parents scold him and reduce him to tears.

Cruz's lawyers hope to establish that their client's mental limitations were not adequately addressed during his trial; prosecutors insist that state-sponsored IQ tests, which placed Cruz well above the 70-point IQ mark, show Cruz to have the capacity to distinguish right from wrong.

They don't have much time, or much reason to hope: Republican presidential nominee Governor George W. Bush, who has had more executions during his five-year tenure in Austin than any other governor in the nation since capital punishment was reinstated, has made his support for executing mentally retarded inmates clear. In 1995, the newly minted governor rejected a clemency plea from lawyers for Mario Marquez, a mentally retarded adult whose verbal and reasoning skills were comparable to those of a 7-year-old child.

Since then, Governor Bush has upheld his position, refusing to take mental capacity into account when reviewing last-minute pleas. The Texas Board of Paroles, the only body in the state with the authority to grant full-out clemency, voted unanimously to refuse Cruz's requests.

Cruz's chances for an appeal are diminishing by the minute: Under Texas law, Perry can grant Cruz a one-time, 30-day reprieve — a cushion of time that might allow Cruz's lawyers to pursue their appeals to the U.S. Supreme Court, which ruled in 1998 that capital punishment for retarded inmates was not "cruel and unusual punishment." (Federal law contradicts the Court: Legislation passed by President Reagan prohibits the execution of mentally retarded federal inmates.)

As always, this issue gains special weight in a presidential election year. And the American public is increasingly uneasy with the idea of executing mentally retarded inmates; even in Texas, support for this execution is less than enthusiastic. Bush, who has effectively washed his hands of Cruz's case, may yet be haunted by the questions raised by the pending execution. Just as Bill Clinton showed himself to be "a new Democrat" when he bared his law enforcement chops and flew home to oversee the 1992 execution of brain-damaged Arkansas inmate Rickey Ray Rector, George W. Bush is currently confronted with an opportunity to demonstrate his compassion by stepping in and granting Cruz a reprieve. If he doesn't — and all indicators say he won't — he may be answering questions about this case long after the November elections have come and gone.