BY FAX: 850-487-0801

February 4, 2002

The Honorable Jeb E. Bush
Governor, State of Florida
The Capitol
Tallahassee, FL 32399-0001

Re: Linroy Bottoson

Dear Governor Bush:

On behalf of the American Civil Liberties Union, we strongly urge you to grant clemency to Linroy Bottoson, who is currently scheduled for execution on February 5, 2002.  Linroy Bottoson has been on death row since 1981.  His case raises very significant questions regarding his mental retardation and the lack of due process at his January hearing.

First, Linroy Bottoson suffers from severe brain damage and has been diagnosed as mentally retarded within the definition of the American Psychiatric Association.  In 2001, the Florida state legislature passed and you signed into law a provision prohibiting the imposition of the death penalty upon a mentally retarded person.  While this law does not have retroactive effect, and so does not strictly apply to Mr. Bottoson, the law reflects the evolving standard of decency regarding the execution of individuals who are mentally retarded.  Elizabeth Hirst, your spokeswoman, stated that you are not ""going to sign a warrant until [you are] sure . . . that this person is not mentally retarded.""  Linroy Bottoson is mentally retarded and deserves clemency.

In addition, the very constitutionality of executing a mentally retarded person is now under review by the United States Supreme Court.  The Court recently granted certiorari in Atkins v. Virginia to decide ""whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment (which prohibits cruel and unusual punishment).""  

Second, at Linroy Bottoson's evidentiary hearing on January 15th and 16th of 2002, the lower court violated his rights to due process by failing to articulate, as it must, what evidentiary standard it would use to determine whether Mr. Bottoson met the criteria for mentally retardation.  

Moreover at that hearing, the states' experts used, and the lower court relied on, a definition of mental retardation that is not used by the American Psychiatric Association and is not used in the Florida statute that you signed into law.

The ACLU opposes capital punishment in all cases as a barbarous anachronism and a violation of the Constitutional prohibition against cruel and unusual punishment.  Our country is almost alone among advanced nations in continuing to use the death penalty.  In this case, the extraordinary relief of clemency is justified because of Linroy Bottoson's mental retardation.

We respectfully urge you to grant clemency in this unjust case.

Sincerely,

Diann Rust-Tierney
ACLU Capital Punishment Project

Howard Simon
ACLU of Florida