¶ … Supreme Court's recent decision to ban the execution of mentally challenged individuals raises important ethical issues. Judges must be able to determine if a person is indeed mentally challenged. While the legal system and psychology have made important insights into this issue, there is still some inconsistency in the definition and application of mental retardation in the judicial system. Accordingly, an analysis of the ethical principles underlying the issue is useful. Ultimately, a combination of both deontological and teleological approaches may provide the best ethical guidelines for such a complex issue. The ethical factors involved in handing down any death sentence are complex. This is especially true when the accused is a mentally challenged individual. In the American criminal justice system, the court must be assured that an accused individual is fully responsible for their actions in order to hold responsible for their crime. In other words, in order to prove guilt, we must know that the accused in fully aware of and responsible for their behavior.

Currently, there is precedent for considering diminished mental faculties as a reason to legally absolve individuals from the responsibility of committing their crime. This is why the defence of "not guilty by reason of insanity" is acceptable in American courts. In this scenario, the accused is not held responsible for their actions, because their mental state precludes them of responsibility for any criminal actions. Thus, given this precedent, it may be easy to argue that a mentally challenged person, by virtue of their diminished intellectual capacity, is not responsible for their criminal actions.

Activists for the rights of the mentally challenged have long argued that people with mental retardation face additional difficulties in protecting their legal rights and securing a fair trial. They argue that individuals with mental retardation are not sufficiently mentally capable of determining whether to wave constitutional or statutory rights. Further, they argue that people with mental retardation to not have the intellectual capacity to determine if they should confess without the presence of council. Activists also note that people with diminished intellectual abilities are highly susceptible to coercion, pressure and intimidation, and that this may result in a number of false confessions (Human Rights Watch).

Advocates of the mentally challenged have pushed to have the death penalty revoked for all mentally challenged individuals. As a result of this action, federal and state governments have slowly moved to stop the executions of mentally challenged people.

Prior to the Supreme Court decision earlier this year, governments of several of the forty states that allow the death penalty had enacted legislation that would prohibit executing mentally challenged individuals. Further, the federal government had passed legislation that prohibited the execution of people with mental retardation in 1994 (American Association on Mental Retardation; Fact Sheet).

In June of 2002, the Supreme Court issued a ruling that ended the enactment of the death penalty on mentally challenged individuals. In the case of Atkins v. Virginia, the court held that the execution of death row inmates with mental retardation was a violation of the Eighth Amendment (Death Penalty Information Center; Supreme Court).

Prior to Atkins v. Virginia, the Supreme Court had ruled, in a narrow vote, in the case of Penry v. Lynaugh in 1989 that the execution of death row inmates with mental retardation was not a violation of the Eighth Amendment. Justice Sandra Day O'Connor noted that there was no "national consensus" against executing individuals with mental retardation. As of the Penry v. Lynaugh case in 1989, only Maryland and Georgia prohibited executions of mentally challenged persons. By the time of the Supreme Court's 2002, ruling in the Atkins v. Virginia case, eighteen states, as well as the federal government, had banned those executions (Death Penalty Information Center; Supreme Court).

The American Bar Association (ABA) established a policy that opposed the execution of mentally challenged individuals. The ABA noted that the execution of these individuals was unacceptable, whether they were guilty or innocence. The ABA called for a nationwide moratorium on the death penalty in 1989.

Despite this recent movement, there are some serious criticisms of the changes to the law. Michael Welner sees a potential danger in non-retarded inmates who attempt to take advantage of the changes. He suggests that some inmates, like Ernest McGarver on death row in North Carolina has recently had an IQ dip fro 70 to 88 in earlier years to a recent low of 67. While the specific validity of this suggestion is unclear, it certainly illustrates a potential for the abuse of IQ tests. Welner goes as far as to suggest that some inmates may fake or try to fool IQ...

It may be helpful to consider a specific instance. Let us examine a hypothetical situation that could occur in any courtroom in the United States, where the sentencing of mentally challenged individuals is no longer allowed.
When a judge is faced with the decision to determine whether or not a mentally challenged should be held accountable for their crime, may factors come into play. Importantly, the judge must first determine if the accused is in fact, mentally challenged to the degree that the judge cannot impose the death penalty. The judge must decide the degree of mental impairment that make a person no longer responsible for their crime in a court of law. As such, the judge must set specific criteria for this assessment, likely including IQ score, and life skills abilities. In making this assessment, a variety of ethical approaches must be examined.

In The Ethical Foundations of Criminal Justice, Richard Hall examines major ethical theories that underlie issues of criminal justice. Especially important is a discussion of how these theories of ethics relate to the issue of criminal and civil liability.

The complex interaction of ethical theories and individual culpability under the law is especially important when determining the degree to which mentally challenged individuals are responsible for their actions in a court of law. If ethics seem to dictate that a mentally retarded person is not responsible for their actions, then it is arguably ethically reprehensible to sentence such a person to death for a crime the did not commit knowingly. Further, it becomes crucial to examine the same ethical concerns when attempting determining if an individual is indeed mentally retarded, and, as such, can no longer face execution for their crimes.

In assessing the degree of mental impairment that make a person no longer responsible for their crime in a court of law it is important to consider the opinions of the psychological profession, in addition to ethical considerations. The American Association on Mental Retardation notes that mental retardation begins before the age of 18, and that it places severe limitations on intellectual functioning and adaptive behavior. These limitations are expressed in difficulties in social, practical and conceptual adaptive skills (Luckasson, 2002).

Currently, the intellectual criterion for the diagnosis of mental retardation is an IQ test score of approximately 70 or below. Given the standard error of measurement for most IQ tests is about five, the criterion is often extended to 75. However, mental retardation is assessed by not only limitations in intellectual criterion, but also limitations in adaptive behavior (Luckasson, 2002).

In order to determine limitations in adaptive behavior, an individual must be compared against the general populations. On standardized measures, significant limitations in adaptive behavior are defined as performance at least two standard deviations below the mean in specific types of adaptive behaviour. Adaptive behavior skills include money concepts, conceptual skills, reading and writing, social skills, naivete, and occupational skills (Luckasson, 2002).

Despite a reasonable consensus among mental health professionals as to the definition and criteria of mental retardation, individual state statues had set up significantly different criteria for establishing and defining mental retardation. Prior to the Supreme Court's decision to ban the execution of mentally challenged individuals, eighteen states had separately determined these specific criteria. The criteria used by each state were often significantly different, arguing that appears to be a great deal of room for the identification and classification of mental retardation.

Specifically, Florida Statutes, Sect. 921.137 noted that mental retardation was to be defined as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18" (Death Penalty Information Center; State Statutes). Court-appointed experts were to be charged with determining if an accused was mentally retarded, and were to report their findings before the final sentencing hearing.

Colorado's criteria were similar to Florida, and they did not specify a specific numerical IQ level. Colorado Rev. Stat. Sect. 16-9-401-403 further allowed that the requirements for documentation could be waived in the case of extraordinary circumstances (Death Penalty Information Center; State Statutes).

In contrast, Arkansas noted that mental retardation was presumed with any IQ of 65 or below, but that the assumption was rebuttable. Ark. Code Ann. Sect. 5-4-618 (1993) noted criteria for…