Lambert v. State

¶1concur in part/dissent in part

¶2concurring in part and dissenting in part:

¶3¶ 1 A majority of the Court today approves the execution of a mentally retarded man who has the mental age of an eight-year-old boy. The Court blithely rejects the claim that the execution of the mentally retarded violates our state and federal constitutions. In deciding to allow the killing of mentally retarded citizens, the majority swallows all sense of decency, disregards the will of the people of Oklahoma and ignores the principles and values of Article II, section 9 of the Oklahoma Constitution.1 Because our State constitution will not tolerate the execution of a mentally retarded man, I respectfully dissent to the imposition of the death penalty in this case.2 I concur in affirming Robert Wayne Lambert’s convictions, but I would modify the sentences to life without the possibility of parole and order the sentences to run consecutively.

¶4¶ 2 Although he is a grown man, Lambert cannot make change. He spells no better than a seven year old and reads at a third grade level. When Lambert was seventeen years old, the Oklahoma Juvenile Services Division tested him. The State’s testing revealed that Lambert has an IQ of 68 and that he is mentally retarded. Prior to this testing, Lambert struggled through special education classes. Lambert barely managed to get through kindergarten. Finally he dropped out of school when he was in the seventh grade. Lambert was never able to function successfully in a school setting, and after he dropped out of school, his mental retardation limited his ability to work or survive in the outside world. Lambert’s entire life has been shaped by his mental retardation. Although he is now thirty years old, he has the mental age of an eight year old. His thinking and reasoning are equivalent to that of a child in the second or third grade. His moral culpability is, of necessity, on the same level.

¶5¶ 3 At issue is not whether Robert Wayne Lambert should be punished for his actions; he should. The question is how we as a society should punish the mentally retarded. The answer to this question speaks volumes about us as civilized, decent people. The majority’s answer is shameful.

¶6¶4 Oklahoma does not execute children3*241or the insane 4 because to do so would violate our common, evolving sense of decency.5 It is incompatible with this sense of decency and it is morally indefensible then to kill someone who thinks, reasons and operates at the level of a third grader. Executing such a man is comparable to executing an eight year old boy.

¶7¶ 5 The Diagnostic and Statistical Manual of Mental Disorders (1994) (DSM-IV)6 defines a mentally retarded individual as one whose disability manifests itself before age eighteen and who has “significantly subaver-age intellectual function,” i.e., an IQ below seventy, accompanied with “significant limitations in adaptive functioning.”7 Unlike mental illness,8 mental retardation is a permanent developmental condition marked by low intellectual capacity. This low intelligence affects and limits the mentally retarded person’s ability to think, plan and function. It cannot'be ameliorated by drugs or psychotherapy, although the mentally retarded individual may be taught skills and strategies to better function in society. In contrast to mental illness, the likelihood of “faking” mental retardation is minimal.

¶8¶ 6 Oklahoma recognizes the unique niche that the mentally retarded occupy in our society and in Title 10 of the Oklahoma Statutes the State provides institutional care for mentally retarded persons who have a mental age not above that of an average nine year old.9 Oklahoma recognizes that it needs to step in and provide care and assistance to the mentally retarded. Today, the Court sanctions killing these same individuals.

¶9¶ 7 In choosing to allow the execution of the mentally retarded, the majority relies on Penry v. Lynaugh,10 in which the United States Supreme Court held that the federal constitution requires states to allow a defendant to introduce evidence of his mental retardation as a factor mitigating against the imposition of the death penalty. However, the Court refused to bar completely the execution of the mentally retarded under the federal constitution.11 At the time the Supreme Court decided Penry, only the federal government and two states prohibited the execution of the mentally retarded. Even under those circumstances, four Supreme Court justices believed that the Eighth Amendment barred outright the execution of the mentally retarded. Justice O’Connor, who authored the plurality opinion, was unwilling to go that far concluding that she could not say that at that time there existed a national consensus barring the execution of the mentally retarded. However, Justice O’Connor noted that the Court’s position could well change should a national consensus to ban the execution of the mentally retarded emerge.

¶10*242¶ 8 Since Penry the national landscape has changed dramatically. Ten more states have banned the execution of the mentally retarded.12 Now, twelve death penalty states, the federal government and thirteen non-death penalty jurisdictions13 ban the execution of the mentally retarded. New Hampshire has not imposed the death penalty on anyone since 1976. Missouri currently has legislation pending to bar the execution of mentally retarded persons.14

¶11¶ 9 Other states, while not explicitly banning the execution of mentally retarded persons, prohibit the execution of persons with limited mental abilities. For example, Connecticut provides, “The court shall not impose the sentence of death on the defendant if ... at the time of the offense ... his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution.”15 California also provides “evidence of diminished capacity or of a mental disorder may be considered by the court ... at the time of sentencing or other disposition or commitment.”16 Courts have overturned or modified death sentences in part because of a defendant’s mental retardation.17

¶12*243¶ 10 As evidenced by state and federal legislation as well as public opinion polls,18 the American people disfavor executing the mentally retarded. A majority of Oklaho-mans oppose the imposition of the death penalty on mentally retarded defendants.19 The American Bar Association and the American Association of Mental Retardation recommend banning the execution of mentally retarded persons. Thus, while the death penalty continues to be an accepted form of punishment, the execution of the mentally retarded is out of step with the values of society.

¶13¶ 11 The growing ban on the execution of the mentally retarded has much in common with the ban on the execution of two other traditionally protected groups: children and the insane. The rationale for barring the execution of children was set out in Thompson v. Oklahoma.20Of great importance to the Thompson Court was the fact that under Oklahoma law children were treated differently from adults. The Court was also swayed by the eighteen states that specifically required that persons be at least sixteen years old to be eligible for the death penalty21 and by the American Bar Association’s recommendation that children be exempt from the death penalty. In barring the execution of the insane, the United States Supreme Court had a visceral reaction against the execution of such persons finding that the execution of the insane offended humanity and constituted a barbaric act of “exacting mindless vengeance.”22

¶14¶ 12 The same concerns and interests involved in the ban on the execution of children and the insane are at issue in the execution of the mentally retarded. Oklahoma provides extra-protection and treats mentally retarded persons differently from non-mentally disabled persons, as evidenced by Title 10 of Oklahoma Statutes. Every caring human being experiences a visceral reaction of revulsion at the thought of executing an individual whose social and mental abilities are no greater than that of an eight year old boy. Indeed, because of the society’s protective role over the mentally retarded, the systemic execution or extermination of the mentally disabled is a crime against humanity that fills one with shock and horror23 The repugnance evoked by the image of executing the mentally retarded is evidenced by the growing consensus of states, citizens and professional organizations that now ban or urge the banning of the execution of the mentally retarded.

¶15¶ 13 As the State of New York noted when it exempted the mentally retarded from the death penalty, the execution of the mentally retarded fails to serve the penological goals of retribution or deterrence, which underpin and justify the imposition of the death penalty.24 The heart of retribution is that “a criminal sentence must be directly related to the personal culpability of the criminal of*244fender.”25 “Among the mentally retarded, ‘reduced ability is found in every dimension of the individual’s functioning, including his language, communication, memory, attention, ability to control impulsivity, moral development, self-concept, self-perception, suggestibility, knowledge of basic information, and general motivation.’ ”26 Mentally retarded individuals have limited reasoning powers and are highly impulsive.27 They are far less likely to understand or foresee the consequences of their actions.28 These fundamental and immutable characteristics compel the conclusion that mentally retarded citizens, like children, lack the moral culpability to subject them to the ultimate penalty of death, even though they may be subject to other severe punishments such as life imprisonment or life imprisonment without the possibility of parole. The execution of the mentally retarded “is ... ‘nothing more than the purposeless and needless imposition of pain and suffering.’ ”29

¶16¶ 14 Moreover, due to the restricted thinking and reasoning powers of the mentally retarded, it is highly unlikely that the threat of the death penalty would have any deterrent effect. A mental retarded person, whose ability to engage in abstract thinking is minimal, at best, will have great difficulty in comprehending his own execution. It is unlikely then that the threat of this punishment will deter capital crime any more than the execution of children or the insane will operate as a deterrent.

¶17¶ 15 The Oklahoma Constitution bars “cruel or unusual punishments.”30 It is our duty to interpret and enforce the Oklahoma Constitution. Given Oklahoma’s traditional protection of the mentally retarded, the growing national ban on the execution of the mentally retarded, and the lack of penological goals advanced by the execution of these individuals, I believe the execution of the mentally retarded is a cruel or unusual punishment prohibited under Oklahoma law. I therefore respectfully dissent to the execution of a mentally retarded man who has the mental age of an eight-year-old boy.

¶48concur in the results:

¶49¶ 1 I concur in the results reached by the Court both as to the affirmance of the conviction and the judgment rendered as to the sentence.

¶50¶ 2 I dissented to the vacation of the murder convictions and sentences of death in the original Lambert appeal. Lambert v. State, 888 P.2d 494, 507 (Okl.Cr.1994). Therefore, I wholeheartedly agree with the affirmance of the murder convictions and sentence of death in this opinion. However, I am not sure the Court’s explanation of why it can vacate the convictions for the underlying felonies is totally correct. I did not amplify all the problems I had with the wording of the original opinion in my separate vote in that case. Now I believe some of that terminology needs to be discussed.

¶51¶ 3 I have failed to find authority for a trial court to legally “abrogate” a conviction which has been affirmed on appeal by a court of last resort. The only way a trial court reacquires jurisdiction and is empowered with authority to vacate an already final conviction in Oklahoma is through the Post-Conviction Relief Act. See 22 O.S.Supp.1995, § 1080, et seq. That act is not applicable to the fact situation in this case. In attempting to explain away this problem, the Court uses Greenwood v. State, 381 P.2d 895 (Okl.Cr.1963) as authority for the trial court to take this action as a part of our mandate. However, a reading of G'reenwood reveals its holding is in direct contradiction to what the opinion seeks to use as authority. In fact, *245the Court in Greenwoodcites to Reed v. State, 10 Okl.Cr. 444, 137 P. 369 (1914) for the following statement of law:

After a ease has been affirmed on appeal to the Criminal Court of Appeals, and is sent back to the trial court, the trial court has no power to set aside said judgment, but it must be carried into execution as directed by this Court; otherwise the enforcement of criminal law in Oklahoma would be involved in endless confusion.

¶52Following that citation to Reed, the Court then addresses the issue in Greenwoodand states:

[i]t is, therefore, the opinion of this Court that the trial court was without jurisdiction to vacate the original orders (most particularly the judgment and sentence) and allow new ones to be issued, based on the cases and authorities cited above.

¶53381 P.2d at 898. While 22 O.S.1991, § 1066, does provide “the appellate court may reverse, affirm or modify the judgment or sentence appealed from ... ”, I have been unable to find authority for the application of that statute to vacate a judgment and sentence which has already been affirmed. However, I agree with the Court’s discussion of continuing jurisdiction in this case and concur in the results as to the vacation of the underlying felonies of robbery with a dangerous weapon.

¶54¶ 4 I have also reviewed the application for evidentiary hearing and find it contains only speculations, not evidence. Appellant has failed to show this Court by clear and convincing evidence, the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in this appeal. The record on appeal in this case regarding the issue of change of venue as it related to media coverage contradicts the suppositions alleged in the application for evidentiary hearing. Therefore, the threshold showing has not been made for purposes of warranting an evidentiary hearing on this issue.

¶55¶ 5 My colleague’s empathy for the plight of the Appellant in this case is commendable. On a human plane, each of us is touched and saddened when we must witness the fruits of human tragedy, as well as the human imperfections which caused that tragedy. However, ours is a court of law which is bound to enforce the rule of law and apply it equally under established standards. Applying the rule of law requires adherence to these standards, even in those times we might wish from the human plane to be able to in some way change its application in a particular situation.

¶56¶ 6 Rather than making a sociological decision which would completely disregard the concept of separation of powers, we must follow and apply the law which is applicable at this time in this state. My colleague seeks a constitutional justification for modifying the sentence in this case based on Appellant’s level of mental retardation. However, this is an issue which is a matter for legislative determination. Each of the instances related in his separate vote reflects a state legislature in each of the respective jurisdictions which has made a public policy decision on this issue. The United States Supreme Court has already ruled the execution of a person with mental retardation is not a violation of the Federal Constitution. As noted, the United States Supreme Court decision in Penry v. Lynaugh is still controlling precedent. The Court said in that case:

[s]o long as sentencers can consider and give effect to mitigating evidence of mental retardation in imposing sentence, an individualized determination of whether ‘death is the appropriate punishment’ can be made in each particular case. While a national consensus against execution of the mentally retarded may someday emerge reflecting the ‘evolving standards of decency that may mark the progress of a maturing society,’ there is insufficient evidence of that consensus today.

¶57492 U.S. 302, 340, 109 S.Ct. 2934, 2958, 106 L.Ed.2d 256 (1989). Even though the United States Supreme Court may at some time in the future decide to consider a “national consensus” as it seeks to decide questions of law, I do not believe it is the function of this Court to make decisions based on public opinion polls or merely what other states have done. Our duty is to follow the law as our Constitution specifically sets out and as *246the Oklahoma Legislature speaks in establishing the policy for the citizens of this state.

¶58¶ 7 Specifically, facts reveal Appellant’s diagnosis of a sixty-eight (68) I.Q. indicates a higher level of functioning than that of Pen-ry, who was tested over the years as having an I.Q. of between fifty (50) and sixty-three (63). The following statement in Penry applies equally to Lambert:

Penry was found competent to stand trial. In other words, he was found to have the ability to consult with his lawyer with a reasonable degree of rational understanding, and was found to have a rational as well as factual understanding of the proceedings against him. (cite omitted).

¶59492 U.S. at 338,109 S.Ct. at 2954-55.

¶60¶ 8 Recently, the Texas Court of Criminal Appeals addressed this same issue in Bell v. State, 938 S.W.2d 35 (Tex.Cr.App.1996). In that case, Bell argued that “because ten states have passed legislation banning execution of mentally retarded individuals, there is a growing ‘national consensus’ against such executions.” As the Texas court stated, the appellant in that case did not discuss any of those statutes and pointed to no relevant caselaw from Texas or other states. The Texas court stated:

As appellant acknowledges, the United States Supreme Court in Penry v. Lynaugh, 492 U.S. at 335-38, 109 S.Ct. at 2955-57, held that the Eighth Amendment does not preclude execution of mentally retarded persons. ‘So long as sentencers can consider and give effect to mitigating evidence,’ the Court explained, ‘an individualized determination of whether ‘death is the appropriate punishment’ can be made in each particular case.’ Id.Although appellant introduced a great deal of mental retardation evidence at his trial, the jury chose not to give it sufficient weight to mitigate against imposition of the death penalty.

This Court addressed appellant’s claim in Penry v. State, supra, and held that because the jury was able to give mitigating weight to Penry’s mental retardation evidence, his death sentence did not violate the Eighth Amendment. 903 S.W.2d at 766-767. Likewise, we hold that appellant’s sentence does not violate the Eighth Amendment and overrule appellant’s twenty first point of error.

¶61938 S.W.2d at 55. Bell sought certiorari with the United States Supreme Court in that case, on the very issue presented here, and it was denied in October 1997. 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997). Therefore, as recently as October 1997, the United States Supreme Court was presented with this very issue in a Petition for Certiorari in Bell’s case and chose not to further amplify or modify its decision in Penry.

¶62¶ 9 While my colleague’s syntax seeks to tug at the heartstrings for the plight of the mentally retarded, and each of us would have empathy for those individuals as persons, that empathy does not allow us to subvert the legislative process. Matters of public policy and the values of society are to be decided by our legislative bodies through appropriate public hearings and true determination of what the public desires as public policy. That is a proper function of the legislature in our republic, as each member represents his or her constituents and votes on legislation based on decisions made in committees after public input and open discussion on the floor of the House and Senate. In this case the law as enacted by the Legislature, is to be enforced by the Executive branch and interpreted, as well as applied, by the Judicial branch. This cooperative triumvirate ensures the continuation of an ordered society and a threshold of moral values established through our statutes defining and prohibiting criminal conduct, together with a multitude of other statutes requiring or prohibiting conduct.

¶63¶ 10 Today, the only public policy we are to apply is what is in our statutes. The statutes which are applicable to this case provide the death penalty is an appropriate punishment under the procedures set out. The legislature has defined as a matter of public policy those aggravating circumstances which allow the death penalty to be considered for the crime of murder in the first degree. Our statutes only provide that execution is prohibited for those individuals who are insane. See 22 O.S.1991, §§ 1005, 1008. See also, Medlock v. State 927 P.2d 1069, 1072*247(Okl.Cr.1996). In addition, in 1998, the Oklahoma Legislature amended the language of section 152(3) of Title 21 to provide the following:

All persons are capable of committing crimes, except those belonging to the following classes: ... 3. Persons who are impaired by reason of mental retardation upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness;....

¶64The Legislature has also provided the protections of our competency statutes, which Appellant utilized at each trial of this case to ensure his competency to stand trial, and included the requirement for the trier of fact to answer the question “is the person mentally ill, mentally retarded, or a person requiring treatment as defined by Section 3 of Title 43A?” See 22 O.S.1991, § 1175.5. That determination has been made and affirmed in this case. The record in this case reflects that determination of Appellant’s ability to distinguish right from wrong has been made by a trier of fact and according to our law, and the issue of mental retardation was also presented to the jury as a mitigating factor. The jury in this case for a second time has determined that mitigating factor was not sufficient to overcome the proof of the aggrava-tors in this horrific crime.

¶65¶ 11 The issue before us is not an issue of constitutional magnitude, but one of public policy. Public policy is to be determined by the legislative and executive branches of government. The judicial branch of government, especially a court sitting only in review of appeals from criminal cases, is ill-equipped to make any determination of public policy. Historically, each time appellate courts have ventured into the public policy forum and disregarded the rule of law, it has resulted in not only turmoil, but a denigration of the respect of the judicial system and the rule of law. See e.g. Dred Scott v. Sandford, 60 U.S. 393, 19 How. 393, 15 L.Ed. 691 (1857); Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896); Lochner v. People of State of New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905); and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This Court has correctly decided it should not make that same type of mistake here.