A total of 40 inmates have filed retroactive motions to receive reduced sentences under the mental retardation exemption bill passed by the N.C. General Assembly last summer.
Mark Kleinschmidt, a lawyer with the Center for Death Penalty Litigation and a Chapel Hill Town Council member, said the number of filings was expected.
"It's not surprising that people with low intelligence abilities find themselves in situations where they are not able to act rationally," Kleinschmidt said. "These people cannot adequately defend themselves and therefore are presented with a death penalty sentence."
But Rep. J. Russell Capps, R-Wake, an ardent opponent of the bill, said he had expected the percentage of death row inmates filing claims under the bill to be much higher.
"I expected all of them would file," Capps said. "I figure anytime a person is on death row they would take any opportunity to get out. If I was on death row I would do anything I could to get out."
The suits were all filed locally, and at the present time have no involvement with the state attorney general's office.
To receive a death penalty exemption, it must be proven that an inmate has an IQ of 70 or below as well as an inability to adapt to society before the age of 18.
Sen. Ellie Kinnaird, D-Orange, said the determination process will be meticulous.
"It's going to be expensive and time consuming," she said. "Evidence has to be presented from experts."
Kleinschmidt said the proceedings will utilize information that surfaced during extensive trial proceedings to determine the legitimacy of inmates' claims.
He said that he and other attorneys defending death row inmates filed for protection only after extensive research into the defendants' personal lives.
"The ones I file I strongly believe are mentally retarded," Kleinschmidt said. "Hopefully the state will recognize they're mentally retarded as well."
Kleinschmidt said the law's standards might be too strict and cause some mentally retarded inmates not to qualify for protection.
"Psychologists never use IQ scores as a precise evaluation for an individual's intelligence abilities," he said. "Professional psychologists would not distinguish between 70 and 71 for instance."
But Capps said the new law is both unnecessary and problematic.
"We have plenty of laws that already protect criminals," he said. "With this law the criminals get better protection than the citizens."
But Kleinschmidt said there are many people on death row, like Sherwin Elwood Skipper, who are obviously mentally retarded and were still given the death penalty.
So far, Skipper is the only inmate who has received protection under the law.
Skipper was convicted of killing his girlfriend and her grandson in 1990, and is now serving a life sentence without parole.
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