Topeka ? Experts warned Friday that Kansas’ death penalty law was unconstitutional and needed to be changed to ensure that mentally retarded people are not executed.

“Executing people with mental retardation does not serve justice,” said Jane Rhys, executive director of the Kansas Council on Developmental Disabilities.

The House-Senate Committee on Corrections and Juvenile Justice is considering changes to how the death penalty law considers defendants who say they are mentally retarded.

Kansas law exempts the mentally retarded from the death penalty, but how and when the law determines if a person is mentally retarded during a capital-murder trial are in question.

James Ellis, a University of New Mexico law professor, said several changes were needed in the Kansas law to comply with a 2002 U.S. Supreme Court decision that declared executing a mentally retarded person unconstitutionally cruel and inhuman. Ellis successfully argued that case before the Supreme Court.

Appearing by video-conference before the committee, Ellis attacked Kansas’ law on two fronts.

In Kansas, a defendant in a capital-murder case can be determined to be mentally retarded only after the trial and conviction. Ellis said this didn’t make sense because the state could have cases where “a capital trial has taken place for someone who is not death eligible.”

He said the state could save both the expense and trauma of a capital-murder trial by having a pre-trial hearing before to determine whether a person is mentally retarded.

Also, he said the statute’s definition of a mentally retarded person was too confusing because it mixed in the defense for insanity.

¢ Supreme Court will review cases on death penalty (10-01-03)¢ Death penalty case appealed to state court (9-9-03)¢ Death penalty costs to be focus of audit (9-4-03)

A bill introduced during the 2003 legislative session would provide for two phases to determine whether the defendant is mentally retarded — both before and after the trial.

The measure also would tighten the definition of retardation to include only those people who have “significantly subaverage general intellectual functioning,” to the extent that they can’t discern the criminality of their actions.

The bill was introduced by former state Rep. Rocky Nichols, D-Topeka, who is now executive director of Kansas Advocacy and Protective Services, an agency that advocates for the mentally retarded.

Nichols told the committee that Kansas law needed to be changed “in order to avoid litigation and expensive appeals costs, as well as undo stress upon the family of a victim and the court system as a whole.”

He added, “Most importantly, Kansas law should change because persons with mental retardation and cognitive disabilities should not be subject to the death penalty.”

Kansas reinstituted the death penalty in 1994. Since then, Kansas courts have sentenced seven people to die, but none have yet been executed. Several cases are on appeal, but none, so far, challenge the part of the statue that deals with mental retardation.

Even so, Rep. Ward Loyd, R-Garden City and chairman of the committee, said he expected the Legislature would consider changes to the law in light of the 2002 Supreme Court case.

“Some of these are matters of common sense that need to be implemented,” he said.