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Open Letter to Governor Bentley

On Thursday, June 16, 2011 the State of Alabama will execute a mentally retarded man.  Eddie Duval Powell has been on death row in Alabama since 1998 for the assault and murder of 79 year old Mattie Wesson of Tuscaloosa. The crime was truly horrific in nature.  Mrs. Wesson was robbed, assaulted, and shot multiple times.  Even so, Mr. Powell’s execution raises questions of justice and our understanding of mental retardation.

At the time of Mr. Powell’s sentencing, evidence of mental retardation was only something that could be put forth in mitigation.  Mr. Powell’s attorneys had no reason to prove his mental retardation at his trial. However, the Supreme Court declared it to be unconstitutional to execute a mentally retarded person, in the 2002 case of Atkins v. Virginia. That decision came four years after Mr. Powell’s death sentence was imposed.

During post-conviction proceedings, after the Supreme Court’s decision, Mr. Powell alerted the courts that he had been diagnosed as mentally retarded in fifth grade and that he had been in special education classes.  Alabama state courts found that these statements did not describe mental retardation “with sufficient specificity” and the federal courts upheld the state’s rule of specificity in Mr. Powell’s case.  The state courts also found that because of evidence presented at trial – prior to the Atkins decision – Mr. Powell could not show that he was mentally retarded.  The trial evidence was that Mr. Powell could read, had assisted other inmates,  had been married, and had helped care for his elderly grandfather.

Clearly, these are things that those with mental retardation are capable of doing.  Had Mr. Powell ever been given an opportunity to present evidence of his mental retardation, he would have shown that he spent years in special education classes, that his own special education teachers considered him to be one of their lower-performing students, that his family and friends were aware that he could not retain or learn basic information, and that his IQ and test scores place him in the mentally retarded range even now, after years in prison.  Anyone familiar with mentally retarded citizens knows that, despite their very real intellectual limitations, the mentally retarded are as capable and deserving of loving relationships as any other person.  But the courts apparently think that this quality of being human forecloses mercy.

Last Friday, the Alabama Supreme Court refused to stop Mr. Powell’s execution and hold a hearing on his mental retardation.  Now, when he is facing execution, Mr. Powell’s possibility for a commutation of his sentence to life without parole lies in the hands of Governor Bentley. But, rather than allowing Mr. Powell to finally have a voice in some setting, Governor Bentley has instructed his staff not to meet with any counsel seeking clemency.

The power of executive clemency is a weighty power, given to the Governor by our state Constitution.  According to Justice Rehnquist, it has been “the historic remedy for preventing a miscarriage of justice where judicial process has been exhausted.  . . . .Executive clemency has provided the ‘fail safe’ in our criminal justice system.”  Failure to allow Mr. Powell a full hearing diminishes that power.

Governor Bentley should re-think his refusal to have any formal clemency process.  The State of Alabama must have a remedy that prevents us from executing a mentally retarded man.