Capital Punishment (Death Penalty) and Mentally Retarded In July 2002, the United States Supreme Court ruled it unconstitutional to execute mentally retarded prisoners. This ruling reflects a shift in the Court's previous position, when it ruled in 1989 that such executions did not entail "cruel or unusual punishment" nor did they violate the Constitution's Eighth Amendment.

Despite the ruling, however, the debate about the death penalty and mental retardation continues. Human rights activists have hailed the decision as a triumph for the rights of the disabled. Critics, however, contend that the task of assessing a retarded defendant's culpability belongs to a jury.

This paper examines both sides of the argument regarding the death penalty for mentally retarded prisoners, focusing particularly on death penalty cases in Texas. The first part of the paper looks at the legal standards for mental retardation. In the second part, the paper details the criticism against these standards and evaluates the other arguments for allowing the execution of the mentally retarded.

The third part of the paper looks at the arguments against capital punishment for criminals who are proven to be mentally deficient. In the conclusion, the paper evaluates how the Supreme Court's ruling reflects a shift in societal attitudes regarding capital punishment and mental retardation.

Legal Standards

Mental retardation is a medical condition characterized by impaired or incomplete mental development. With early diagnosis, a mentally retarded person can learn coping and life skills. However, there is no cure for mental retardation.

There are three widely-used criteria to determine mental retardation. First, the condition causes significantly lower than average leves of intellectual function. Second, this limited intellectual function is often accompanied by related limitations in other adaptive skill areas. Finally, these conditions manifest themselves by the age of 18 (AAMR).

Intellectual function is often measured in terms of intelligence quotient or I.Q. An IQ of 100 is considered average, while majority of Americans have IQs ranging from 80 to 120. If an IQ test is administered properly, a person who scores below 70 ranks in the bottom two percent of the American population and is deemed significantly below average in terms of intellectual function. As such, a person with an IQ below 70 meets the primary condition for determining mental retardation (Reed 14).

Aside from intellectual function, mentally retarded persons often lack other skills required for coping with daily life. This could include problems with following directions, communications and social skills. Because of this, many people with mental retardation require a family or other comparable social support network to provide assistance (AAMR).

Finally, mental retardation is present from childhood, and could be caused by impairments to brain development before, during or after birth. Factors like prenatal care, illness during infancy, physical abuse or malnutrition can cause or contribute to mental retardation. However, by definition, mental retardation occurs during a person's developmental period, which some experts believe can take up to age 22 (AAMR). This means that school and other childhood records could be used to verify claims to mental retardation.

Executing the mentally retarded

Prior to the Supreme Court's 2002 decision, 11 states including Georgia and Maryland have already made it illegal to execute criminals who were deemed mentally retarded. In 1999, a similar statute in the Texas legislature faced stiff opposition from many members of the Texas District Attorney's office.

People cite a four-fold argument for opposing a blanket ban on the execution of convicted mentally retarded criminals.

First, they argue that questions of IQ or mental retardation do not apply in capital punishment cases. Rather than intelligence, former assistant district attorney Cathleen C. Herasimchuk proposes that responsibility in a criminal proceeding should be determined by "moral blameworthiness." This idea of moral blameworthiness goes beyond intelligence, to include the sum of a person's full character. In this regard, IQ is an inadequate measure of moral culpability (189).

Furthermore, they argue that the state or federal...

The question of whether a person's mental handicaps constitute mitigating circumstances in sentencing should be debated by the citizens of Texas (Herasimchuk 190).
Third, critics charge that tests to determine a person's IQ are unreliable. Thus, a convicted murderer can simply make mistakes on purpose, scoring low on an IQ test to avoid capital punishment. When testifying in front of the Senate Committee, one district attorney remarked that the day the bill is passed, the collective IQ points of all death row inmates would drop by 1,000 points (Herasimchuk 190). When faced with an opportunity for self-preservation, conventional wisdom dictates that people will lie on an IQ test to escape the death penalty.

Third, there is a lack of strict guidelines regarding the reliability of IQ tests. It is common for people to score differently, depending on who gives the test or how it is administered. Seen in this light, IQ tests are far from an objective or accurate measure of a person's intelligence. Theoretically, this opens the door allowing defendants to keep taking IQ tests until they achieve a low score (Herasimchuk 190).

Finally, death penalty advocates in Texas as well as around the country expressed concerns that a blanket ban on executions of the mentally retarded is just another step towards banning capital punishment altogether. While the statute is based on compassion and good intentions, critics believe it is ill conceived (Herasimchuk 191-192).

In 1980, a Texas jury debated the sentence for John Paul Perry, a death row convicted of a rape/murder. The trial revealed that Penry had the IQ of a six-year-old boy and had been tortured by his mother. At the sentencing hearing, the jurors were instructed not to focus on the issue of Perry's mental retardation, but on his whether Perry killed deliberately, without provocation and was a danger to society. The jury answered yes on all counts and sentenced Perry to death (Reed 48).

In summary, opponents of a blanket ban on executing the mentally retarded do not argue that all criminals with low IQ scores should be given the death penalty.

Rather, evaluations regarding the mitigating effects of mental retardation should be done on a case-to-case approach. A jury should be allowed to debate the appropriate punishment - including the death penalty - based on a person's moral blameworthiness, not just on intelligence or IQ alone.

The mentally retarded should be exempt from execution

People who advocate a ban on executing the mentally retarded cite a mixture of scientific, legal and moral reasons.

With regard to scientific measurements of mental retardation, it is impossible to fake mental retardation. After all, the condition is based on three criteria, not merely on one recently administered IQ test. Since mental retardation occurred over the period of a person's development years, experts can go back over a person's school records to evaluate the early manifestations of the condition. Furthermore, they will be able to evaluate whether mental retardation symptoms exist in the other person's skills and functions (AAMR).

In fact, experts maintain that most people with mental retardation take great pains to hide their disability. Throughout their lives, they have often been stigmatized as "the least smart." Many are therefore ashamed and fearful of revealing any hint of their disability. Instead, they hide their retardation behind a "cloak of competence." This makes them particularly susceptible to making false confessions during interrogation. It also hampers them from seeking help based on their disability, including from their own lawyers (Edgerton 22-25).

This is evident in cases such as Oliver Cruz, who was executed in Texas in 2000. Analysts have assessed Cruz's IQ as between 64 and 76. Cruz, however, repeatedly told reporters that although he was "slow in reading, slow in learning," he was not mentally retarded (Bonner and Rimer).

In a legal sense, executing the mentally retarded does nothing to fulfill the central purposes of the death penalty. Advocates of capital punishment argue that the death penalty is needed for both deterrence and retribution. First, the deterrent ability of the death penalty is already highly suspect. In addition, because a mentally retarded person generally cannot anticipate the consequences of their actions, it is unlikely that the death penalty will deter the commission of capital crimes. If mentally retarded offenders were excluded from the death penalty, other capital offenders will still be liable (Ellis and Fiorenza 186).

Corollary to this, to fit the goal of retribution, a convicted offender must deserve the punishment being meted. This is hardly the case for someone who is mentally retarded. Contrary to the arguments put forth by Herasimchuk, many other analysts maintain that mental retardation precludes any form of moral blameworthiness. By meting the death penalty to those who lack the mental faculties to fully understand the consequences of their actions, the state would thus be imposing an excessive punishment on the retarded.

Finally, proponents of the ban on executing the mentally retarded frame the issue in moral terms. There is no way to be sure if a retarded person with a mental age of 10 and below could truly appreciate the consequences of his or her actions. After all, blameworthiness and ideas about morality develop as people…