~ the mentally retarded as criminal defendants ~

The California Supreme Court, In re ANDERSON HAWTHORNE, JR., the Court was faced with the dilemma of reviewing a habeas petition of a mentally retarded man under sentence of death, as a new law (Penal Code 1376) was enacted, barring the execution of the mentally retarded. The Court notes, "By its terms, section 1376 applies only to preconviction proceedings. We issued an order to show cause to determine how to resolve postconviction claims of mental retardation. " Read the decision

Penal Code 1376 exerpt: a) As used in this section, "mentally retarded" means the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18. (b) (1) In any case in which the prosecution seeks the death penalty, the defendant may, at a reasonable time prior to the commencement of trial, apply for an order directing that a mental retardation hearing be conducted.

The Court concludes: "The new legislation makes no provision for cases in which the death penalty has already been imposed. The task thus falls to this court to formulate appropriate procedures for resolving post conviction claims. "

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