The question in the title of this post is the headline of this lengthy article appearing in today's Forth Worth Star Telegram. Here are excerpts:
A mother's failures are etched on Mark Anthony Soliz's face. It's the damaged face of a child whose mother drank heavily, sniffed paint and used drugs while pregnant, the face of a youth who was largely abandoned. The face of a killer.
Now, with Soliz sitting on Texas Death Row awaiting an execution date, the long-ago failings of his mother could hold the key to sparing his life. Soliz's appeal of his capital murder conviction in the death of a Godley grandmother has joined a growing list of cases nationwide seeking to exclude the death penalty for defendants with fetal alcohol syndrome, a form of brain damage caused by maternal alcohol abuse.
Experts say the death penalty should be off the table in such cases, just as the U.S. Supreme Court has abolished the death penalty for defendants with mental retardation. Prosecutors and victims advocates, however, say it's a guise for going easy on killers who show no such mercy to their victims....
[I]n a groundbreaking decision in the Atkins case in 2002, the Supreme Court held that executing a person who is mentally retarded violates the Eighth Amendment's prohibition against cruel and unusual punishment. The deficiencies associated with mental retardation, the court concluded, reduce a person's culpability in the crime.
Experts say the same rules should apply to people with fetal alcohol syndrome. Those people have the same diminished capacities as those with mental retardation, they say, even though their IQs may test somewhat higher than the 70-75 range typically used to define mental retardation.
"The damage to the executive functioning of the brain is as severe as someone who is intellectually disabled," said John Niland, director of the Capital Trial Project with the Texas Defender Service, a nonprofit law firm in Houston and Austin that also provides training and consultation for attorneys in death penalty cases. "I don't think we've been aware of it long enough to identify all of the cases."
The U.S. Supreme Court has already rejected a request to review a fetal alcohol case involving Louisiana Death Row inmate Brandy Holmes, who was named after her mother's favorite liquor. But death penalty opponents say that does not rule out that other fetal alcohol cases could be considered by the nation's highest court.
Johnson County District Attorney Dale Hanna, who participated in the Soliz trial, said that fetal alcohol symptoms can vary widely and that such defendants should not be excluded outright from the death penalty. "It's certainly something a jury can consider," Hanna said, "but in the Soliz case, it didn't go very far."
Billy Edwards, a public defender in California who has helped pioneer some of the legal training to help defense lawyers recognize fetal alcohol syndrome, said the issue is gaining traction in the courts. "A lot of states are really looking at this issue," Edwards said. "What I'm seeing is a shift, hopefully, in public policy and having courts look at this as a mitigating factor, where in the past lawyers were just uneducated about it."
The State of Alaska just last month passed legislation that allows fetal alcohol spectrum disorder — the umbrella diagnosis for various fetal alcohol-related problems — to be considered as mitigation in criminal cases. The American Bar Association will also consider a resolution later this summer calling for increased education and training for court and corrections workers about the syndrome.
Prosecutors and victims advocates say anything less than the death penalty in the Soliz [case] would be an injustice. Soliz committed 13 crimes over eight days, including carjackings, armed robberies, a holdup, a drive-by shooting and the fatal shooting of Ruben Martinez, a deliveryman for Ben E. Keith who happened to be unloading beer at a north-side convenience store about 6 a.m. on June 29, 2010.
A few hours later, Weatherly was killed in her home. The ruthless nature of the crimes made them even more horrifying, prosecutors said. Soliz laughed in describing the crime to his girlfriend....
[V]ictims-rights advocates say the mothers are not to blame for their children's conscious decisions to kill. "In most of these cases, the victim survivors are extremely reluctant to accept this as an excuse to spare them from the death penalty or any other sanction," said Dudley Sharp, a longtime victims-rights advocate based in Houston. "Even in extremely severe cases ... you'll have some victim survivors who think, 'Better dead than alive.'"
