EDITORIAL: Judging Retardation: Take the Onus Off Juries

By The Daily Oklahoman

Jan. 9–The issue of who should determine whether first-degree murder defendants are mentally retarded made news last week when the Oklahoma Court of Criminal Appeals decided such defendants can ask for a jury to decide instead of a judge.

The lone dissent came from Vice Presiding Judge Gary L. Lumpkin, who said the ruling should serve to prompt the Legislature to clarify the situation. A spokesman for the attorney general says that office is working with a lawmaker to do just that. Our hope is that any legislation that’s crafted takes some of the onus off of juries.

Under last week’s ruling by the appeals court, first-degree murder defendants who claim to be mentally retarded must ask the court for a jury trial within 60 days of the time prosecutors file for the death penalty. If a jury finds the defendant mentally retarded or can’t reach a verdict, the trial proceeds and the death penalty is taken off the table. If the jury finds mental retardation isn’t an issue, the defendant can face the death penalty and the issue of mental retardation can only be raised during the sentencing phase.

Defendants who don’t meet the 60-day deadline to ask for a jury can still request a hearing before a judge.

The Court of Criminal Appeals has been wrestling with this issue since 2002, when the U.S. Supreme Court ruled it unconstitutional to execute mentally retarded killers and left it to states to determine for themselves what constitutes retardation. Our state court has written a number of opinions on issues such as whether retardation should be decided before or after trial, or whether one jury should decide guilt or innocence and another should decide retardation.

Lumpkin is right to ask the Legislature for help, and perhaps that’ll come this session. If so, we hope lawmakers give serious consideration to whether everyday Oklahomans who are fulfilling their civic duty should be asked to determine whether a first-degree murder defendant is retarded.

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