Death penalty measure criticized

Erin Neff

Wednesday, May 2, 2001 | 11:01 a.m.

CARSON CITY -- Sen. Mark James has argued passionately for a moratorium on the death penalty while a study of Nevada's capital punishment system is conducted.

Some expected an Assembly bill prohibiting the death penalty for mentally-retarded defendants would sail through James' Senate Judiciary Committee Tuesday.

Instead, James, R-Las Vegas, called Assembly Bill 353 "flawed," and said he saw no reason to approach the problems with the death penalty piecemeal.

"I think we're just trying to make ourselves feel good about a broken system," James said Tuesday during a hearing on AB353.

Assistant Federal Public Defender Michael Pescetta, who represents purported mentally-retarded death row inmate Thomas Nevius, testified in favor of the bill; he said such defendants are more likely to go along with others on a crime spree and give false confessions if caught.

Pescetta said Nevius -- the subject of last month's widely-publicized Pardons Board hearing on his mental competency -- has the mental age of a child between the ages of 7 and 9. Mentally-retarded people do not plan crimes.

"They are not sitting at home and thinking 'I am going to go commit these four steps in a targeted crime,' " Pescetta said.

But James asked why the bill is necessary. Juries already can consider mental retardation as a mitigating factor in the penalty phase of a trial.

Three prosecutors testified against the bill, arguing IQ tests used to determine mental retardation are flawed and that the alternate penalty of life without parole is equally cruel if the defendant did not understand culpability.

"The bill is quite flawed, and I think its sponsors, all of whom are against the death penalty, are confusing inherent problems with the death penalty, with strategic procedures we can tweak," James said.

"It's better to do a small good than do nothing," Pescetta said. "This is a category of people, like people under 16, that shouldn't get the death penalty at all."

Last week Arizona became the 14th state to outlaw the death penalty for the mentally retarded. Another 12 states have no death penalty.

But the Legislature has not warmed to death penalty reform this session. One bill that would have prohibited the death penalty from being imposed on those younger than 18 was amended to remove the age prohibition.

Assembly Bill 353, introduced by Sheila Leslie, D-Reno, faces an uncertain future in James' committee, and James' own moratorium proposal does not appear to have the votes to pass the Assembly.

During her brief testimony, Leslie said her bill is a separate issue from the moratorium.

"I would urge you to pass this bill," Leslie said. During an interview after the hearing, Leslie said, "I don't think we need to study this aspect. There is a consensus in this state that it's time to exempt the mentally retarded from the death penalty."