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Making a Case for Mental Retardation
For Convicts, Defining Mental Retardation a Life and Death Issue

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Ernest McCarver

Ernest McCarver is on death row for killing a man in a Concord, N.C., cafeteria. His lawyers say McCarver is mentally retarded, and under state law, cannot be executed.
Photo: North Carolina Department of Corrections

Feb. 16, 2002 -- The U.S. Supreme Court next week is scheduled to consider whether to ban the execution of convicted criminals with mental retardation. Eighteen states already have such prohibitions in place. But as NPR's Joseph Shapiro reports for Weekend Edition Saturday, determining who is mentally retarded is not always easy.

Fifteen years ago, Ernest McCarver was arrested for robbing and killing a 71-year-old man at a shopping mall cafeteria in Concord, N.C. McCarver had met the victim, Woody Hartley, when he worked for a time at the K&W Cafeteria washing dishes.

According to North Carolina Supreme Court record, three years after he quit the cafeteria, McCarver and a friend, Jimmy Rape, were looking for a way to get money. They thought of Hartley, who was known to carry a large sum of money with him after payday. McCarver told his co-workers that Hartley was also an easy target because he arrived early in the morning to open the cafeteria.

Dennis Andrade

Police officer Dennis Andrade sits outside the shopping mall of the murder he investigated 15 years ago. Andrade has doubts about claims that McCarver is mentally retarded.
Photo: Susan Stone, NPR

Court documents say that shortly after 5 a.m. on Jan. 2, 1987, McCarver approached Hartley in the cafeteria, talked with him for a few minutes, and then Rape grabbed Hartley from the back and attempted to strangle him. Police officer Dennis Andrade, who helped solve the murder, says McCarver then took a large knife out of his pocket, and thrust it into Hartley's chest three times.

"McCarver stepped on Mr. Hartley's throat with his foot and proudly announced that he weighed 200 pounds as he was doing it."

There is no question about McCarver's guilt. He was captured just a few hours after the murder. He confessed. He was tried, convicted and sentenced to death in 1992.

A year ago, McCarver was just a few hours from being executed, when a phone call came from the U.S. Supreme Court. The court had stayed the execution. McCarver was about to become its test case on executing the mentally retarded.

Making a Diagnosis

Mental health professionals look for three criteria before making a diagnosis of mental retardation in an adult:

1. An IQ below 70. Psychologists evaluate an adult's general intelligence abilities through tests like the Wecshler Adult Intelligence Scale. The tests measure a person's ability to solve problems using both verbal and nonverbal information. For instance:

• Asking a person to identify what's wrong or absurd in a picture, like a calendar with no Sundays.

• Can a person put a series of pictures in a sequence to tell a logical story?

• How well can a person recite a series of numbers forward and backward?

2. Poor adaptive behavior skills. Psychologists look to see how well a person gets along in the world: how a person interacts socially and his ability to take care of himself. For instance:

• Can a person prepare a complete meal or make a new meal out of leftovers?

• Can a person use a phone book to order a pizza?

3. Evidence of retardation before the age of 18. Investigators look through school and medical records and talk with school teachers, past employers, friends and family in a search for proof that mental retardation existed in a person as a child.

McCarver's attorneys, Seth Cohen and Stanley Hammer, gave him the news. "I'm not sure he fully understood," says Hammer.

"He kinda wants to know, 'Is it good or bad? Did we win or did we lose? Am I going to live or am I going to die?' " says Cohen. "It's like you're talking to a 12-year-old kid: 'Am I going to the circus or am I not going to the circus?' "

Five months later, North Carolina became the 18th state to pass a law barring the execution of mentally retarded. The Supreme Court moved on to a different test case. It looked like a win for McCarver, but it wasn't.

Now McCarver has to prove he's retarded.

That might seem like a clear-cut thing to establish. But it's not. Retardation is a limitation on learning. It limits some more than others, and there are no exact lines where retardation starts and where it ends.

In McCarver's case, it will fall to a judge to draw one. The judge will hear different kinds of evidence.

First, he'll consider McCarver's ability to think and reason -- his IQ. But an IQ score is not hard evidence, like fingerprints of DNA. So the courts require another measure of what are called adaptive skills -- how a person manages with the routine functions of daily life. The last piece of evidence a judge must hear is that retardation existed before the person turned 18.

McCarver's attorneys have a challenge on each of these points. McCarver has scored above and below the IQ cutoff for mental retardation on different tests. He's been stumped by such adaptive behavior skills as ordering a pizza from a phone book. But critics like Andrade say Carver is just being a clever criminal.

And evidence of early retardation is elusive. McCarver's attorneys knew only a little about his childhood. They knew his parents included him in their crimes when he was just a boy, and that he spent time in an orphanage when his parents were sent to prison. A former director at the orphanage says he remembers McCarver out of the thousands of children he knew -- because McCarver was retarded.

"We didn't really have many children who were retarded," says Bob Noble. "I'm trying to think of another youngster who was mentally retarded and I think that's one reason he stands out in my mind."

Others who knew and worked with McCarver, however, don't think he's retarded. They say he isn't like other retarded people they know. But advocates for the retarded say the differences aren't always evident. The majority of people with mental retardation have mild retardation. Many hold jobs, get driver's licenses, marry and even have children.

All the evidence before the judge will be contradictory, and the execution ban is forcing the criminal justice system to reconsider stereotypes of retardation.

"Everyone in North Carolina is on a learning curve, lawyers and the judges. This will be a learning process for everyone," says North Carolina Judge Robert Hobgood.

When North Carolina lawmakers banned the execution of the retarded, they expected just a handful of appeals. Now at least 43 of the 213 men and women on death row claim they are mentally retarded.

Join the Discussion

Weigh in on McCarver's case and the debate over the death penalty and defining mental retardation at NPR's discussion board.

In Depth

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Other Resources

• Read McCarver's criminal record, posted on the North Carolina Department of Correction Web site.

• Read a biography of McCarver, posted on the North Carolina Chapter of the Campaign to End the Death Penalty's Web site.

• Read the North Carolina law banning the execution of convicted criminals with mental retardation.

• Read details of McCarver's crime in a 1994 appeal before the North Carolina Supreme Court.

• Read a break down of state laws regarding the death penalty and the mental retardation.

• Read about recent actions states have taken on executing the mentally retarded.

• Read the American Association on Mental Retardation fact sheet on mental retardation and the death penalty.

• Read the AAMR's definition of mental retardation.