Mental Retardation and the Death Penalty

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Argument Escalates on Executing Retarded: NY Times Jul 23, 2001 (reg. req'd)

Mental Retardation and the Death Penalty in the U. S. A.
by Dave Reynolds, Inclusion Daily Express
May 15, 2001
This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

Is it 'cruel and unusual punishment'?
The new death penalty bans: Can we have it both ways?

"When the student is ready, the teacher will appear."

Sometimes the teacher shows up without announcing herself and without explaining that she is the teacher and you are the student.

Twelve years ago, Darlene taught me a valuable lesson about discrimination and justice. I also learned that the most difficult advocacy work involves stopping to listen and being willing to look hard at ourselves.

The story is full of irony. That, of course, is why it had such an impact on me. MORE.

Capital punishment is popular in the United States. Thirty-eight states plus the federal military have death penalty laws.

The death penalty is not so popular when it comes to people who have mental retardation. Even though an estimated 35 people with mental retardation have been executed under capital punishment laws since 1977, many states either do not allow such executions or are moving in that direction.

As of last August, thirteen states had separate laws specifically banning the death penalty for people with mental retardation: Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, Nebraska, New Mexico, New York, South Dakota, Tennessee, Washington, and the District of Columbia.

Here are some recent events:

PHOENIX, ARIZONA - In late April, Gov. Jane Hull signed a bill that bans the execution of criminals that have mental retardation. Senate Bill 1551 sets stringent requirements for demonstrating mental retardation, including evidence that the condition began before the defendant was 18 years old.

TALLAHASSEE, FLORIDA - With a 110-1 vote, the state House on May 4 passed a ban on executions of prisoners who have mental retardation. The Senate passed the same bill unanimously in March. The measure now goes to Governor Jeb Bush, who had said he would not allow the execution of convicts who have mental retardation, with or without the bill. The legislation takes into account an inmate's "intellectual functioning and behavior", but does not include IQ scores in the criteria. A hearing would take place after the person's conviction to determine whether the person has mental retardation.

AUSTIN, TEXAS - A Senate panel voted on May 8 to ban the execution of capital murderers with mental retardation. Under the measure, a court would determine whether a person accused of committing a capital murder is able to understand the consequences of the crime. If the person fits the legal definition of having mental retardation, the most severe punishment he or she could possibly get would be life in prison. Unlike the state of Florida, this would happen before the actual trial to decide whether the person is guilty.

RALEIGH, NORTH CAROLINA - On April 23, the state Senate voted 31-18 to bar the execution of people with mental retardation. The legislation would prohibit prosecutors from seeking the death penalty for anyone who has an IQ of 70 or below. Such a level of intelligence must be documented before age 18, most likely with a test taken in school. The measure must be passed by the House and signed by the governor.

CARSON CITY, NEVADA - By a 28-11 vote, the state Assembly on April 24 passed a measure that would to prevent the execution of anyone a judge deems has an intelligence quotient of 70 or less. One legislator who supported Assembly Bill 353, mentioned that she is a special education teacher. She explained that mental retardation has been clearly defined by law for the last 40 years. "It is very much an illness," she said. "It is very much a disease." (Editor's note: Actually, mental retardation has been clearly defined as not being an illness or a disease for the last 40 years.)

JEFFERSON CITY, MISSOURI - Lawmakers last week approved a ban on executing people who have mental retardation. The legislation now goes to Governor Bob Holden for his signature. Measures passed by the state House and Senate do not specify an IQ threshold, but instead define mental retardation as "substantial limitations in general functioning" with "significantly sub-average intelligence". To be spared the death penalty, the person must have been younger than 18 when the condition was documented.

HARTFORD, CONNECTICUT - A Quinnipiac University poll of 910 registered voters last month found that although supporters of the death penalty outnumber opponents by a ratio of 2-to-1, more than three-quarters, 77 percent of respondents said they oppose the death penalty for people with mental retardation. The poll shows support for a bill sent to the Senate two weeks ago that would exclude mentally retarded people from being sentenced to death.

Is it "Cruel and Unusual Punishment"?

John Paul Penry was convicted in 1980 of stabbing a woman to death with a pair of scissors. Penry's defenders said he had IQ scores of between 50 and 64. They said that executing Penry would be "cruel and unusual punishment" which is banned by the U.S. Constitution.

The U.S. Supreme Court in 1989 disagreed. The court said that society decides what is considered "cruel and unusual punishment", and that there was no "national consensus" against such executions. At that time only two states banned executions of people with mental retardation.

That "consensus" may now be in place, just in time for the most significant challenge in twelve years. The Supreme Court has agreed to hear arguments in the case of Ernest McCarver, a death row inmate in North Carolina, who two months ago came within hours of being executed for murdering a coworker.

A decision is expected next year.

You can read more about the death penalty as it relates to people with mental retardation, by going to this Inclusion Daily Express web page: http://www.InclusionDaily.com/news/deathpenalty.htm

The New Death Penalty Bans: Can We Have it Both Ways?

In 1977 the U.S. Supreme Court determined that the death penalty was not "cruel and unusual punishment" as defined under the Eighth Amendment to the Constitution. Twelve years later, the high court ruled that the death penalty for people considered to have mental retardation also was not "cruel and unusual punishment."
At that time only two states that had the death penalty specifically banned execution of convicts who have mental retardation. As of this writing, 14 of the 38 states with a death penalty have ruled it out for inmates with mental retardation. Several other states are considering similar measures.
This is certainly good news for those inmates, their supporters, and people considered to have mental retardation that may be accused of capital crimes now or in the future. It is also good news for lawmakers, judges, prosecutors, jurors - and much of the American public -- who now have a relatively simple answer to a very complicated issue.
What does this mean for other people that have been labeled as having mental retardation or other disabilities but are law-abiding citizens?
I worry that the trend toward banning executions for this one group of people actually has the potential to set disability rights, particularly the self-advocacy movement, back a couple of decades. I am also concerned that the ways in which it is decided who lives and who dies is unfair and discriminatory.
Before going any further I need to explain that I oppose the death penalty and think it should be banned across the country. Perhaps, if a loved one of mine had died violently, I would feel differently, but as it is I can find no good reason to support it. Capital punishment is a barbaric practice for a society that considers itself "civilized."
It is also not given fairly. Minorities and people who grow up in poverty are executed much more often than whites and those who have money. As technology improves, we are seeing more and more cases where people who had been convicted and sentenced to death were later cleared through DNA tests, or from confessions from the real killers. We often read or hear about people who were "framed", or were with the "wrong bunch of people" at the wrong time.
The United States prides itself on fairness and justice and as Americans we feel particularly bad about executing innocent people. We also feel bad about executing people who commit a crime, but who might not have realized that what they did was wrong, did not understand the consequences of what they did, or who do not understand the legal system enough to defend themselves.
Defense attorneys are chosen and are given the moral, legal, and ethical obligation to defend their clients to the best of their ability. This means pleading their defendantšs case before judges and juries. In recent cases, defenders have also appealed to state legislators, the public, the media and Supreme Court justices.
Some of the current and proposed laws simply use an IQ score to determine whether a defendant is competent. If the person scored below a certain number, they are not put on the executioneršs list. In other states, defense attorneys have to work harder to prove that the accused has mental retardation and does not fully understand what they were doing or what the results of those actions would be.
This issue about competence gets us into trouble: The self-determination movement is based on the assumption that people are competent enough to guide their own lives, regardless of their label or "level" of disability. The "ban-the-death-penalty-for-the-mentally-retarded" movement is based on the assumption that people labeled as having mental retardation are not competent.
What happens when we try to have it both ways?
When a convict is considered to have mental retardation, defenders try to make the audience feel pity and guilt, by showing the person as helpless and child-like. After all, no judge or jury would want to give a lethal injection to a child. Missouri death row inmate Antonio Richardson is often referred to as "a 26-year-old man with the mind of a 6-year-old child". Convicted murderer John Penry is quoted as believing in Santa Claus and described as enjoying drawing stick figures with crayons. The focus on what the person cannot do in order to give the impression he cannot do anything, let alone kill somebody.
Efforts to rescue these convicts by showing them as stupid or childish strengthen the negative stereotypes that we have been trying to get rid of for so long. How can that possibly be a positive thing for, as an example, a 26-year-old woman with a label of "mild mental retardation", who is trying desperately to advocate for herself, to have some independence and control over her life? How can she convince those around her that she knows what is best for herself, if by association she is seen as a "child in an adult body"?
Another problem with singling out one group of people is that it reinforces the idea that people labeled as having mental retardation are "special" and ought to have "special" treatment. After decades of working toward equality, the bans on death sentences for one specific group further separate people from one another and widen the "Us versus Them" gap.
These new laws also reinforce the public perception that all a convict has to do to stay alive is "cheat" by pretending to have mental retardation or to be an underachiever during or before IQ testing. While this may rarely happen, recent news events where people have successfully faked having a disability have strengthened this idea. If ten men without disabilities can successfully win gold medals as members of Spain's "intellectually disabled" Paralympic basketball team, what might a person do to save his own life?
Some states choose the IQ test, or a battery of other "objective" standardized tests, because it is considered by many experts to be a fair and impartial tool to decide if the person has mental retardation. After all, outside the criminal justice system such tests have been used for millions of people to determine who would or would not be eligible for government benefits or services.
Usually, but not always, a person who scores at or below 70 is considered to have mental retardation. So in death penalty cases, a person scoring 68 lives, while a person scoring 72 dies. That can be hard to figure out for somebody like Oliver David Cruz who scored 63 on an IQ test one time and 76 another. (Incidentally, Cruz, a Texas death row inmate executed last August, was reported to have said that he would rather die than be called "retarded.")
There are two big problems with taking a tool designed to determine eligibility for services, and using it to decide if a person was competent enough to face the ultimate punishment.
One is that standardized testing is far from objective. Test scores can reflect the skills, attitudes or motives of the tester more than we would want to believe. Išve seen it myself. A simple nod here, or a smile or frown there from the person giving the test could make the difference of several points, whether the test-giver realizes it or not. Also, I have personally known of many cases where a professional admitted to deliberately "fudging" scores in order to help an adult or a child qualify for services.
Of course, defense attorneys, prosecutors and judges often bring in specialists who know how to administer such tests in a professional manner. But, to keep "cheating" at a minimum, many states require the "evidence" of whether the person has mental retardation to have been documented any time before he or she was 18 or 21. Does it make sense to base a life or death decision on, for example, a test done 25 years ago by an elementary school teacher who may have "fudged" a studentšs test score to show others how good a teacher she was?
Another problem is that even if these tests were objective, they could not determine whether the person was innocent or competent. My own experience has shown me that IQ scores are only good at telling how well a person does on IQ tests. Not much more, not much less.
I've known people that were labeled as being in the "severe level of mental disability" who were much more skilled at understanding human behavior than the PhDs administering the tests. I've also known so-called "geniuses" with IQ scores above 140 who did not understand the difference between right and wrong or the consequences of their actions. I donšt know anybody who understands the criminal justice system.
There are countless examples of people labeled with mental retardation who have confessed to crimes they did not commit, who were represented by incompetent attorneys, who did not understand their rights under the legal system, or who were "framed" by others. However, there are countless examples of people without those labels who have experienced the same types of injustices.
So, while there is a death penalty, there do need to be safeguards in place within the legal system to keep people who have disabilities from being treated unfairly. And we do need to work toward there being a level playing field.
But to say those injustices happen because these convicts are incompetent, helpless and child-like, insults not only them, but also people with disabilities who are making good choices every day.
When we make "special" laws and say this person lives because of his "competency" score and this one dies because of his, we throw up more barriers for people who struggle to get others to recognize their abilities and the right to direct their own lives.
We canšt have it both ways.
Discrimination is, after all, discrimination.

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