Doil Edward Lane shuffles into the small cage that is the visiting room for death row inmates at the Polunsky Unit in Livingston. His head hangs down as he turns to let the guards remove his handcuffs. When he looks up, his eyes are red, his cheeks splotchy and wet. He crinkles up his face, picks up the telephone that allows him to talk with the visitors on the other side of the window, and says, "It's hard to talk about." So hard, in fact, that Lane sets down the phone, puts his face in his hands, and cries.
Lane is weeping not because he is facing execution, nor even because of his incarceration on death row. He's broken-hearted because prison officials have moved him to another cellblock -- away from his best friend, Marion. Now he has no one to talk to, no one to read and write letters for him. "I really miss him," Lane says more than once, whining like a 7-year-old whose best friend just moved out of town. He cries intermittently, and then asks, "Do you want to see a picture I drew?" When he's sure no guard is watching, he pulls from the waistband of his pants a pencil drawing of his two best friends, Marion Dudley and Leo Little. Lane says Dudley is the only other inmate who will take the time to read and explain things to him. Little helped Lane get books from the prison library -- not books to read (Lane is essentially illiterate), but books with good pictures so that Lane could look at them, trace the images, and color them in with his pencils. His favorite book is The Apple Tree. "It has really good pictures," he says.
Lane has been on death row for more than nine years. He was found guilty and sentenced to death by a jury in San Marcos in 1994 for the kidnapping and murder of 8-year-old Bertha Martinez. The crime was a parent's worst nightmare -- Bertha was in her neighborhood playing with some friends when she went off with a couple who said they needed help looking for their lost dog. Her battered and bruised body was found many days later in a small shack not far from her home.
Almost 12 years later, Lane confessed to the crime, saying that his stepfather and mother forced him to participate (neither was ever prosecuted). His confession came while he was being questioned in Kansas about the disappearance of 9-year-old Nancy Shoemaker, who had also been kidnapped and killed. Lane also confessed to having participated in that crime, this time saying that his friend Donnie Wacker made him do it.
Lane's confessions were unusual in a number of ways. His statements about what happened changed frequently during questioning; details he recounted were inconsistent with facts already known to the police; and there was neither physical evidence nor eyewitness testimony linking Lane to either crime. But the most unusual thing about Lane's confession was his situation when he gave it: Lane, then 30 years old and rather burly, was sitting in the lap of the police officer taking his statement, with his arm around the officer's neck and his face buried in the officer's chest, weeping.
Doil Lane is mentally retarded; doctors believe his brain may have been deprived of oxygen during his birth. His biological father was 74 years old and died shortly after Lane was born. His mother and her new husband neglected him, and later abused him both psychologically and sexually. Lane was placed in special-education classes at school, and consistently did poorly there. Eventually the state of Kansas stepped in, removed him from his home and sent him to the Brown School in San Marcos, a residential treatment center for children with developmental disabilities. Testing from his time at the Brown School, and later for his appeals, shows that his intellectual functioning is significantly impaired, that his full scale IQ is 65-67 -- among the lowest 1% of the population -- and that his mental and emotional development is that of an 8- to 10-year-old child.


Slow Wheels TurningIn 2001, the Texas Legislature passed a bill that would have banned the execution of the mentally retarded. Gov. Rick Perry called it unnecessary and vetoed it, saying, "We do not execute mentally retarded murderers today." The governor's statement was inaccurate on its face -- nobody involved in the capital cases of Mario Marquez and Terry Washington disputes that both were mentally retarded at the time of their Huntsville executions in the late 1990s -- but at the time, Perry could at least have argued that no national standard required Texas to refrain from such executions. Then last year, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the "evolving standards of decency" in this country would no longer tolerate the execution of people with mental retardation, noting that no other Western democracy allows their execution. The court thereby officially abolished capital punishment for the mentally retarded.
Since the national reinstatement of the death penalty in 1976, prosecutors had been acting under the assumption that seeking a death sentence for a person with mental retardation was permissible as long as the jury was able to consider the issue in deciding whether to impose a sentence of death. The Atkins decision changed that -- but the Supreme Court left it to the individual states to adopt procedures for ensuring that no person with mental retardation would be executed. The court gave scant guidance as to what those procedures should be, but did suggest that a finding of mental retardation require that the defendant have subaverage intellectual functioning, significant limitations in adaptive skills, and that the deficiencies manifest before the age of 18 -- requirements consistent with both medical and governmental definitions of mental retardation.
Whatever their opinions of the death penalty, Texans should wonder why, more than a year after the Atkins decision, Doil Lane remains on death row.
The prosecution in Lane's case has never disputed that he is mentally retarded. In fact, at trial, Hays Co. District Attorney Michael Wenk presented the fact of Lane's mental retardation as part of the expert opinion regarding whether Lane would be a danger to the community if he were not sentenced to death. In his questioning of the state's expert witness on the issue of future dangerousness, Wenk asked the expert to assume "that [Lane] has been diagnosed as borderline or mildly retarded, with an IQ in the range of 70." Wenk told the jury: "There is no question that there is something wrong with [Lane]. ... He's mildly retarded; he comes from a dysfunctional family. We're not disputing that."