Salt of the Earth: The death penalty and the mentally retarded

Stat house
July 2001

Armed and dangerous. . .at 7?
The death penalty and the mentally retarded

The death penalty and the mentally retarded
Executing the mentally retarded is not cruel or unusual punishment, the U.S. Supreme Court ruled in 1989. The majority justices argued the criminal justice system already protected those who could not distinguish right from wrong or understand the consequences of their actions. They also said the country displayed no "national consensus" against executing the mentally retarded.

Today 23 states still permit the execution of the mentally retarded, 15—plus the federal government—forbid it, and 12 prohibit executions entirely. Since the death penalty was reinstated in 1976, the states have executed 35 mentally retarded men, DPIC says. According to a Human Rights Watch (HRW) report released in March, 200 to 300 may be on death row now. A North Carolina death penalty case involving a retarded killer should go before the U.S. Supreme Court this fall. Activists hope the court might this time recognize a national consensus.

"Executing adults with the minds of children is nothing short of barbaric," says Jamie Fellner, HRW associate counsel and author of the death penalty report. "It's time for legislators to outlaw this senseless cruelty."

Executions of the mentally retarded are especially controversial because mental retardation is not completely understood by the medical community. Experts generally describe it as a lifelong condition, noticeable before the age of 18, in which a person has significantly below-average intellectual abilities and related difficulty with everyday skills such as communication or personal independence.

A common indicator of the disability is a very low I.Q. score. A mentally retarded person usually has an I.Q. below 70 to 75, the HRW report says. An average I.Q. score is 100. A person with a 70 is in the bottom 2 percent of Americans and tests only as well as a normal third grader. Those who oppose executions of the mentally retarded say the disability's symptoms leave its sufferers unable to understand their rights or aid in their own defenses, so eager to please they may offer false confessions, and sometimes incapable of understanding the consequences of their actions.

Those who don't want to exclude the mentally retarded from capital cases, including President Bush, argue adequate safeguards exist to prevent executions of the mentally disabled. "Our court system protects people who don't understand the nature of the crime they've committed nor the punishment they are about to receive," Bush told European reporters in June. The European nations have outlawed capital punishment and America's willingness to execute the mentally retarded has been especially controversial in Europe. Bush has also said he believes people can learn the difference between right and wrong regardless of their I.Q. scores.

On June 17 the new Texas governor, Rick Perry, vetoed a bill that would have banned administration of the death penalty against the mentally retarded in Texas. The legislation would have allowed a jury to evaluate a convicted defendant's mental health. If it found a defendant retarded, life in prison would have been the maximum penalty allowed. Perry said the law was not about the death penalty but about who determines mental retardation in the criminal system.—Anne Graber

More info:
Death Penalty Information Center
DPIC's resources on executions of the mentally retarded
Defendants with mental retardation executed
Human Rights Watch
HRW's report: "Beyond Reason: The Death Penalty and Offenders with Mental Retardation"
"Texas governor vetoes ban on death penalty for mentally retarded" (from CNN)
Prodeathpenalty.com
The Death Penalty—A Defense
The Arc (national organization for the mentally retarded)

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