Opponents of the death penalty sail against a stiff wind. Public support for it is strong, executions are on the rise, and political pressure is most often exerted to expand the list of crimes that carry the severest penalty.
Yet there is an exception to the general trend. It is resistance - established by the courts, evident in public opinion, and enacted in law by a growing number of states - to capital punishment for those with mental deficiencies.
Now, a California case is testing the depth of that sentiment - and outlining for the nation the difficulties in defining appropriate justice for the impaired.
Horace Kelly, the murderer of three, including a young boy, was scheduled to be executed April 14. But prison officials could not confirm his mental competency for execution, as required by state law. So Mr. Kelly's life now rests in the hands of a 12-member jury, which will continue to hear testimony this week in a courthouse north of San Francisco.
The question jurors must answer is simple: Is Kelly aware he is to be executed, and why?
Both the United States Supreme Court and common law prohibit execution of the insane, so the principle here is not new. But legal experts can cite no other case in recent memory where these issues were played out publicly, in a jury setting. Usually, competency decisions are made by elected or appointed individuals in government.
For death-penalty opponents, the case is also notable on its merits because of the number of psychiatric evaluations that have labeled Kelly as severely ill and incompetent. "This will be a test case in many ways. After hearing all that psychiatric evidence, if the jury still votes for execution, it will set us back tremendously," says Lance Lindsey, an opponent of capital punishment and executive director of Death Penalty Focus of California.
Kelly's lawyer argues that his client, who has been jailed since 1984, should be spared the death penalty but imprisoned for life. He argues that Kelly is schizophrenic, mentally retarded, brain damaged, and incapable of understanding he is on the verge of execution. One of the court-appointed doctors, who evaluated Kelly recently and testified last week, agreed. Two prison doctors earlier came to the same conclusion.
The prosecution is expected to offer opposing testimony this week, including the view of another court-appointed doctor, Diane McEwen. In a letter to presiding Judge William McGivern, she concluded that while Kelly is a "pitiable figure" she found no evidence he is "unaware of the punishment he is about to suffer or why he is to suffer it."
For many legal experts, the case highlights the lack of any clear definition of "competency" as it applies to the death penalty. Although the US Supreme Court in 1986 found it unconstitutional to execute the insane, it did little to define the standard for determining competency, says James Ellis, a professor of law at the University of New Mexico in Albuquerque. California's statute also offers no clear definition.
In the wake of that Supreme Court ruling, Mr. Ellis helped draft guidelines under the auspices of the American Bar Association that could be adopted by states or judges. But Ellis says there remains no consensus on "what features of a person's [mental] illness" should shield him from execution. The most commonly used standard simply requires that the perpetrator understand he is to be executed. In this case, the judge is requiring that the jury be convinced Kelly understands he is to be executed and why.
The Supreme Court has left the decision of whether to execute the mentally retarded - as distinct from the mentally ill - essentially up to the states. Earlier this month Nebraska became the 12th state to outlaw capital punishment for the retarded, though, according to the Death Penalty Information Center, the number of mentally ill being put to death continues to grow and now numbers 33.
Opinion polls show strong public opposition to executing the retarded. In California, for instance, where 75 percent favor the death penalty, 71 percent opposed its use on the mentally retarded, according to a 1997 Field Poll.
Attitudes are murkier on mental illness, partly because medically it has so many gradations. The public has also grown suspicious of it as a legal strategy used by lawyers to excuse their clients from responsibility.
In the Kelly case, the jury is considering only his mental competency now, not when he committed his crimes. But for death-penalty advocates, that distinction matters little. "He should be punished for his crime regardless of his condition now," says Maggie Elvey, executive director of the Doris Tate Crime Victims Bureau in Sacramento, Calif.