Will Rick Perry Execute A Mentally Disabled Man Tonight?

| Tue May 13, 2014 9:47 AM EDT
Texas Governor Rick Perry

Update (5:24 pm): The Fifth Circuit Court of Appeals has stayed Robert Campbell's execution on the grounds that the new evidence of his intellectual disability was "more than sufficient" to warrant a closer look by the courts. His lawyer, Robert C. Owen, said in a statement, "Given the state’s own role in creating the regrettable circumstances that led to the Fifth Circuit’s decision today, the time is right for the State of Texas to let go of its efforts to execute Mr. Campbell, and resolve this case by reducing his sentence to life imprisonment. State officials should choose the path of resolution rather than pursuing months or years of further proceedings."

Texas Gov. Rick Perry (R) has presided over more executions than any other governor in American history. He's ignored pleas for clemency for people who committed crimes as juveniles, who were mentally disabled, or who were obvious victims of systemic racism. He even signed off on the execution of a likely innocent man. So the odds don't seem good for Robert Campbell, a man set to be executed in Texas tonight. This is despite the fact that new evidence has surfaced showing that the state withheld information documenting an intellectual disability that should make him ineligible for the death penalty.

Unlike Clayton Lockett, the Oklahoma murderer whose botched execution last month has become a rallying cry for abolishing the death penalty, Campbell is actually something of a poster child for all that's wrong with capital punishment in this country. 

Four months after his 18th birthday, Campbell commit three armed car jackings. In one of those, a 20-year-old bank employee, Alexandra Rendon, was kidnapped at a gas station, sexually assaulted and shot to death. Campbell was quickly arrested, largely because he drove Rendon's car around his neighborhood, gave her coat to his mother and her jewelry to his girlfriend as gifts, and basically blabbed to everyone that he'd been involved in the crime. He wasn't alone during the commission of the crime. But his co-defendant, Leroy Lewis, was allowed to plead guilty and is already out on parole.

But Campbell, who is black, went to trial in 1992 in Houston during a time when prosecutors there were three times more likely to pursue a capital case against African-American men than against white men. He had an incompetent lawyer whose many missteps included failing to either investigate his case or to present evidence that would have mitigated his sentence, notably the fact that Campbell was mentally retarded. (This term generally isn't used anymore to describe people with intellectual disabilities—except with regard to the death penalty, where it has a specific definition in the law.)

More bad lawyering over the years, along with hostile Texas courts, left Campbell without many avenues to appeal, even though in 2002, the US Supreme Court banned the execution of the mentally disabled. What's more, Campbell's lawyers only recently discovered that prosecutors and other state officials long had substantial evidence of his limited cognitive functioning—including school records and test results placing his IQ at 68—that should have spared him from the death penalty. Yet they failed to turn it over to defense counsel until just days before his scheduled execution. Last week, the Texas Court of Criminal Appeals nonetheless denied Campbell's request to stay the execution, despite clear concerns from several judges on the court that his claims of mental retardation were compelling and justified further review.

“It is an outrage that the State of Texas itself has worked to frustrate Mr. Campbell’s attempts to obtain any fair consideration of evidence of his intellectual disability,” said Robert C. Owen, an attorney for Mr. Campbell. “State officials affirmatively misled Mr. Campbell’s lawyers when they said they had no records of IQ testing of Mr. Campbell from his time on death row. That was a lie. They had such test results, and those results placed Mr. Campbell squarely in the range for a diagnosis of mental retardation. Mr. Campbell now faces execution as a direct result of such shameful gamesmanship.”

Campbell's attorneys have filed an emergency request for relief with the US Fifth Circuit Court of Appeals, where his odds also seem relatively slim. The Fifth Circuit is notoriously hostile to death penalty appeals. One of its judges, Edith Jones, is famous for reinstating a death sentence for a man whose lawyer slept through his trial. She has said publicly that the death penalty provides criminals with a "positive service" because it gives them an opportunity to get right with God right before the state kills them. She's also facing an unusual ethics complaint over allegedly racist remarks she made at a lecture at the University of Pennsylvania last year, where she reportedly claimed that blacks and Hispanics were predisposed to crime and "prone" to violence. Notably, too, she insisted that defendants who raise claims of mental retardation "abuse the system" and she criticized the Supreme Court's decision prohibiting the execution of the mentally disabled. (She's said that anyone who can plan a crime can't be mentally retarded.)

If Campbell can't make any headway with the Fifth Circuit, his next appeal goes to Supreme Court Justice Antonin Scalia, who reviews emergency death penalty appeals for the Fifth Circuit and is on the record as opposing the ban on executing the mentally retarded. (He also objected to the ban on executing juveniles.) So Campbell's best hope, at least in the short run, is Perry, the three-term GOP governor with presidential aspirations. Perry has the authority to issue a 30-day stay of execution, and if the parole board recommends clemency, as Campbell's lawyers are requesting, he could commute Campbell's sentence to life in prison.

Execution politics aren't pretty. As governor of Arkansas, Bill Clinton left the campaign trail in 1992 to personally oversee the execution of a brain-damaged man, Ricky Ray Rector, and prove his tough-on-crime bona fides. Perry, though, has long and documented track record of executing hundreds of people already, and the politics of the death penalty have unexpectedly and quickly started to change. A vote for clemency isn't likely to affect Perry's future political prospects. In this case, it might even help them. He has a few hours more to decide.