June 21, 2001

The Confession

By BOB HERBERT

Earl Washington Jr. was both brain-damaged and mentally retarded. He grew up in a hard-drinking, violent family in rural Virginia in the 1960's and 70's. He performed dismally in school and dropped out when he was 15. On a good day, his I.Q. could be measured in the high 60's. On at least one occasion, his score was 57. Reciting the alphabet was too tough for him.

But Earl Washington liked to please. So when he found himself in police custody in 1983 he began telling the cops whatever they wanted to hear. He waived his Miranda rights and confessed to all sorts of crimes, including burglary, rape and murder. His performance was farcical. He knew nothing about a string of crimes he confessed to, and when eyewitnesses were contacted, they basically rolled their eyes and told the police they had the wrong guy.

But prosecutors went ahead and pinned an awful crime on Earl Washington anyway. They charged him with the rape and murder of a young woman named Rebecca Williams.

The ever-helpful Mr. Washington readily confessed to that crime, too.

There were some problems. Mr. Washington said the victim was black. She was white. He said she was short. She was tall. He said he had kicked in the door to her residence. The door had not been damaged. He said he stabbed her two or three times. She had been stabbed 38 times.

None of these outlandish discrepancies deterred the authorities. The only evidence they had was Mr. Washington's absurd "confession," but that was enough to bring a capital case against him. At the end of a three-day trial he was convicted and sentenced to death.

Most Americans do not believe the criminal justice system functions this ludicrously. But it does. Frequently.

In 1985 Mr. Washington came within nine days of being executed. His lawyers, working frantically, managed to secure a stay. Meanwhile the use of DNA testing was evolving, and early tests seemed to offer concrete evidence of Mr. Washington's innocence. On the basis of that evidence, his death sentence was reduced in 1994 to life in prison.

Last year more sophisticated DNA tests were conducted and they showed conclusively that Earl Washington, despite his confession, had not attacked Rebecca Williams.

Mr. Washington was pardoned by Gov. James S. Gilmore III and was freed from prison in February.

The death penalty is always problematic. I am opposed to it in all cases. But if it is used, it should be reserved for the most blameworthy perpetrators of the most heinous acts. Even when mentally retarded defendants are clearly guilty, it is extremely difficult to determine their level of culpability.

A recent report by Human Rights Watch, titled "Mental Retardation and the Death Penalty," mentioned the case of a retarded man convicted of raping and murdering an elderly woman. When asked at his trial to explain why rape was wrong, the defendant struggled to find an answer, finally blurting out, "Maybe it's against her religion." Executing such an individual is not the same as executing Timothy McVeigh.

Beyond that, as the report notes, there is wide acknowledgment among mental health experts that "the mentally retarded's characteristic suggestibility and willingness to please" leads them to confess to crimes they may not have committed, including murder.

It is also difficult, often impossible, for retarded individuals to assist in their own defense. Their memories are often unreliable and they have trouble grasping abstract concepts.

All of this was lost on the governor of Texas, a man named Rick Perry. The Texas Legislature, in an uncharacteristically progressive move, passed a law banning the execution of the retarded. But Governor Perry vetoed it on Sunday, saying there was no need for the law.

It would have been a big deal if Texas — the undisputed champion when it comes to executions in the United States — had decided it was morally unacceptable to execute retarded individuals. But Governor Perry shrank from that challenge.

The United States will someday ban the execution of the retarded, and probably — in the long term — all other individuals as well. Governor Perry could have given us a big push in that direction, but chose not to.

Copyright 2001 The New York Times Company