PA two steps closer to protecting developmentally disabled

In two months, we'll mark the fourth anniversary of the Atkins v. Virginia decision, which ruled the execution of the developmentally disabled, i.e. mentally retarded, as a violation of the 8th amendment's prohibition on cruel and unusual punishment. All these years later, the Commonwealth of Pennsylvania has yet to implement a procedure for determining if a defendant is disabled.

But now, after one amazing night and one amazing day at the capitol, PA stands on the cusp of creating a structure to abide by the Atkins decision. Miraculously, unbelievably, incredibly both chambers of the General Assembly could be on the verge of doing it right.

Let's start with last night's debate in the House of Representatives. House Bill 698, which creates a procedure to determine disability post-trial by jury, was on the chamber's agenda, but Representative Kathy Manderino, a Democrat from Philadelphia, offered an amendment to change the procedure to pre-trial by the court (the judge). Manderino cited support for that procedure from advocates for the mentally retarded, church groups, and the attorney who successfully argued the Atkins case, Professor James Ellis of University of New Mexico School of Law.

Rep. Dennis O'Brien, the prime sponsor of 698 and a Republican from Philadelphia, objected to the amendment and offered a motion to vote on the constitutionality of the amendment, claiming it was a violation of the 6th amendment of the US Constitution and of the PA Constitution, which guarantees the Commonwealth's right to a trial by jury. This farce was smelt out by the House and voted down, 106-87. A diverse group spoke in favor of Manderino's amendment, including Rep. John Pallone, a Democrat from Westmoreland and Armstrong Counties; Rep. Russ Fairchild, a Republican from Union and Snyder Counties; and Rep. Curtis Thomas, an African-American Democrat from the city of Philadelphia.

While Manderino's amendment was not ultimately voted on, the constitutionality vote is a reason for optimism.

Then, at mid-day today, the PA Senate Judiciary Committee had Senate Bill 631 on its agenda. SB 631 creates a pre-trial procedure for the determination of disability. Senator Charles Lemmond (R-Luzerne) offered an amendment to create a post-conviction procedure, claiming the jury "will have seen the behavior (of the defendant) in different situations." Mind you, this is the same Senator Lemmond who a few years ago introduced the same amendment by saying that it wasn't really his amendment but the District Attorneys asked him to introduce it. Lemmond also noted the support of the Attorney General.

Senator Mary Jo White, the prime sponsor of SB 631, retorted, "It's unfortunate that Attorney General Corbett never called me...but I have spoken with the judiciary of Florida." Senator White noted that the Florida Supreme Court changed its criminal procedure to a pre-trial determination due to problems with having a death-qualified jury and the costs of a capital murder trial.

"Why would you go through a death penalty trial only at the end to say, 'Oh, by the way, this isn't a death penalty trial'?"

Senator Stewart Greenleaf (R-Montgomery), the chair of the committee, noted that allowing a jury to determine disability is "certainly prejudicial against the defendant."

Lemmond's amendment failed, 5-9, and the bill was sent to the Senate floor, 11-3.

Now what? These are important victories, but there is still work to be done. In the House, the Manderino amendment still needs to come up for a vote and then the final bill will have a vote. In the Senate, a post-trial amendment will likely be introduced before final passage. It's not over yet, but we have reason to feel good.