The Death Penalty and Intellectual Disability

By A. M. Foerschner
2010, Vol. 2 No. 09 | pg. 1/1

Should convicted criminals who are legally declared as mentally ill be excused from the death penalty? In 1981, Ricky Rector of Conway, Arkansas went on a shooting spree that resulted in the death of one man and the injury of two bystanders. Ricky also shot and killed Officer Bob Martin, who had gone to the home of Rector’s mother after Ricky agreed to surrender. In 1982, the mentally retarded thirty-six-year-old was sentenced to death for his crimes. In a revealing glimpse of his limited mental capacity, Rector set aside the piece of pecan pie that came with his last meal, announcing that he wanted to save it to eat for after his 1992 execution.

There have been many cases like Ricky Rector’s that have prompted an intense debate over the constitutionality and, furthermore, the moral implications of executing mentally retarded convicted criminals. Arguments that such individuals should be exempt from the death penalty claim that the mentally retarded are not fully culpable for their actions, cannot actively participate in their own defense, and cannot fully understand the true nature of the punishment. As a result, the death penalty’s main functions of retribution and deterrence would not be applicable. Counterarguments declare that a blanket exemption would lead to a deluge of appeals from death row inmates falsely claiming to be mentally retarded, that convicted criminals who have acted heinously enough to be eligible for the death penalty might end up serving lesser punishments or even someday could be released back into the general population, and that excusing convicted criminals solely based on their IQ scores would be a grave miscarriage of justice. 

With two landmark cases addressing the debate and twenty of the thirty-eight death penalty states still allowing mentally retarded criminals to be executed, this issue is far from being resolved. It remains on the minds of Americans because it concerns a vital aspect of American life—the legal system. This social problem is also significant because it requires Americans to closely examine their beliefs and obligations as moral beings who can greatly affect public policy and the lives of their fellow citizens. So, should all convicted criminals who are legally declared to be mentally retarded be excused from the death penalty?

Mental retardation pervades all aspects of the impaired individual’s life and, at its most profound level, is completely debilitating. Professional diagnosis is composed of four stages. First, the individual’s IQ score is assessed. Second, his/her adaptive skills are measured, identifying their strengths and weaknesses. Third, the age at which the condition first appeared is determined. Fourth, the collective results of the assessments along with the age of onset are evaluated against three criteria necessary for a diagnosis of mental retardation: 1) intellectual functioning is below average—an IQ score of 70 to 75 or lower, 2) “consequential limitations exist in several or many crucial areas of adaptive skill: two or more of the ten applicable areas including communication, self-care, home living, social skills, community use, self direction, health and safety, functional academics, leisure, and work” and 3) the onset of the disability arises during the developmental period, before the age of eighteen (Snell 9696). 

Once a diagnosis of mental retardation has been made, the impaired individual’s condition can be placed in one of four to five categories of severity depending on his/her IQ score. Mild retardation includes those with an IQ score of 50-55 to 70-75. The mildly retarded have an estimated mental age equivalent to that of an eight- to twelve-year-old normal functioning child. Their language ability is fluent by adolescence, their reading and arithmetic skills remain between first and sixth grade levels, and they are generally able to live and work independently. Moderate retardation includes those with an IQ score of 35-40 to 50-55. Moderately retarded individuals possess the mental age of a six- to eight-year-old child. Their language ability is functional by adolescence, although practical reading and arithmetic abilities are not attained, and they require some supervision in everyday living. Severe retardation is marked by an IQ score of 20-25 to 35-40. The severely retarded have the mental age of a four- to six-year-old normal functioning child, limited language ability, no academic skills, and require extensive supervision. The most debilitating category of this disability is profound retardation, which includes those with an IQ score below 20-25. Profoundly retarded individuals possess the mental age of a zero- to four-year-old normal functioning child. Their language ability is limited to, at most, single words; they have no academic skills, and require constant supervision. Sometimes a category of “borderline retardation” is observed, which includes those with IQ scores between 70-75 and 85 (Snell 9698). Although those who are considered borderline are not technically mentally retarded, they do suffer from significant cognitive impairments.  

Those living with mental retardation are confronted by great obstacles, but most can still lead meaningful and fulfilling lives with the aid of a support network. This unfortunately was not the case for many mentally retarded individuals who faced living on their own when they were forced out of assisted living facilities by various legal decisions as well as the deinstitutionalization movement of the 1960s. With the advent of new psychotropic medications, many believed that all debilitating mental conditions would be found to have a biological basis that could be cured with prescriptions. It was thought that community mental health facilities would be in place to help released patients successfully adjust to independent living. This expectation was never fully realized though. Compounding this problem, the 1982 Youngberg v. Romeo decision stated that mentally disabled patients must receive the following in their institutional care: “1. Reasonable care and safety, 2. Freedom from bodily restraints, 3. Adequate food, shelter, clothing, and medical care, 4. Those liberty interests to which convicted criminals are entitled, and 5. Adequate training or habilitation to ensure the enjoyment of liberty” (French). Many states could not afford the expense of maintaining their state schools and psychiatric hospitals under these provisions, and were forced to release large numbers of their mentally retarded occupants into communities ill-prepared to handle their care. The impact of deinstitutionalization and the Youngberg decision led many mentally retarded individuals to break the law with no network of supporters to guide them. Youngberg v. Romeo was not the only case that affected the legal fate of the mentally retarded. 

In City of Cleburne v. Cleburne Living Center (1985), the Court ruled that mental retardation is not a quasi-suspect class, and therefore “does not warrant special legal rights beyond those afforded all citizens under the Equal Protection Clause of the Fourteenth Amendment” (French). Consequently, mental retardation was changed from a clinical syndrome in Axis I of the DSM, or Diagnostic Statistical Manual of Mental Disorders, to a classification as an Axis II disorder. As a result of this move, mentally retarded inmates became death penalty-qualified, as Axis II disorders were not believed to be significant enough to supersede aggravating circumstances. This change in legality was seen in the first of two landmark cases involving mentally retarded criminals and the death penalty, Penry v. Lynaugh. 

John Paul Penry, brain damaged from birth, experienced extreme abuse during childhood that exacerbated his mental condition. Penry’s mother brutally beat him, breaking his arms, dipping him in scalding water, and burning him with cigarettes. She often locked him in his room without food, water, or sanitary facilities for twelve to fourteen hours at a time and then beat him when he could not help but relieve himself in his room, many times forcing him to eat his own feces and drink his urine (Fellner). Penry dropped out of school during first grade, and as an adult his mental age was equivalent to that of an average six-and-a-half-year-old--his IQ measuring at a score between 50 and 63, and categorizing his mental retardation as mild to moderate (Weier 45).

In 1979, twenty-two-year-old Penry was convicted and found guilty of raping, beating, and stabbing Pamela Mosely Carpenter to death with a pair of scissors in Livingston, Texas. A psychiatrist testified during Penry’s competency hearing that Penry scored at an IQ of 54, pointed out his equivalent mental age, and claimed that he possessed the social maturity of an average nine- to ten-year-old. Penry’s lawyers followed these arguments with an appeal to the court that there was “an emerging national consensus against executing the retarded,” but Justice O’Connor, in writing for the five-person majority, found that Penry was competent enough to stand trial, consult rationally with his defense, and understand the proceedings against him (Weier 45). She also noted that there was no evidence of a national consensus against imposing the death penalty on mentally retarded criminals. In addition, the Supreme Court ruled that Penry’s Eighth Amendment right was violated because the jury was not informed that they could consider mental retardation as a mitigating factor during sentencing, and, in 1990, Texas retried Penry. He was again found guilty and received the death penalty. 

In 2000, Penry appealed to the Supreme Court, arguing that his Fifth Amendment right was violated when a portion of an old psychiatric report was used in his 1990 retrial. During a 1977 trial in which Penry was arrested in connection with another rape, the state provided Penry with a psychiatrist to determine Penry’s competency. In Penry’s 2000 appeal, he argued that the psychiatrist was an “agent of the state,” and the prosecution’s use of the report during the 1990 retrial violated his right against self-incrimination. Penry also claimed that jury instructions were again inadequate (Weier 46). In 2001, the Supreme Court, in Penry v. Johnson, found that Penry’s Fifth Amendment right was not violated, but sent the case back to trial courts because, once again, the jury was not given appropriate instructions during sentencing about how to consider mental retardation as a mitigating factor. It was at this time that the second of the landmark cases, Atkins v. Virginia, garnered national attention.  

Daryl Atkins failed and was forced to repeat the second grade. Through eighth grade he received mainly Ds and Fs, and even though he did not meet the requirements to enter high school, he was placed in ninth grade where he continued to make poor marks. His performance improved once he was placed in classes for “slow learners,” but he still left high school without graduating. Atkins began exhibiting serious behavioral problems at the age of 13, when he was convicted of breaking-and-entering and petty larceny. In eighth grade he began abusing drugs, and at 17, Atkins was convicted of two counts of grand larceny. Later, he participated in two armed robberies, and two weeks before the murder for which he stood trial, Atkins attacked a woman and shot her in the stomach (Mossman). 

At the age of 18, Daryl Atkins was not capable of doing laundry or cooking his own meals, but he participated with William Jones in the 1996 armed robbery, abduction, and fatal shooting of Langley Air Force Base airman, Eric Nesbitt. At Daryl Atkins’ trial, each man accused the other of killing Nesbitt, and Atkins was ultimately convicted of capital murder. During the trial’s penalty phase, a psychologist presented information about Atkins that he had obtained from acquaintances, pointed to his poor school and criminal records, and testified that Atkins tested at an IQ score of 59, qualifying him as mildly mentally retarded. Despite this testimony, Atkins was sentenced to death by two Virginia juries. Atkins’ lawyers appealed the death sentence on the grounds that Atkins was mentally retarded, but referencing the 1989 ruling in Penry v. Lynaugh, the Virginia State Court rejected the argument. 

The U.S. Supreme Court agreed to hear Atkins’ case, and thirteen years after ruling that executing mentally retarded criminals was not unconstitutional, the Supreme Court reversed its decision, 6-3, citing that executing the mentally retarded violates the Eighth Amendment’s forbiddance of cruel and unusual punishment. Justice Stevens delivered the opinion of the court, which pointed out that many states had barred the execution of retarded individuals as a response to society’s changing opinion that the mentally retarded are less culpable than average criminals. The Court expressed that mentally retarded individuals have significant difficulty understanding and processing information, communicating, learning from experience, engaging in logical reasoning, and controlling their impulses. “Their deficiencies do not warrant an exemption from criminal sanctions,” they concluded, “but they do diminish their personal culpability” (Weier 47). The Court also pointed out that capital punishment is meant to serve as a deterrent to potential murderers, but the theory does not apply to mentally retarded criminals, as their sub-average cognitive abilities prevent them from appreciating a possible punishment of death. Henceforth, the federal government would spare any criminal with a diagnosis of mental retardation from capital punishment. Federal legislation did not end with this case, though. 

The Anti-Drug Abuse Act of 1988 permits the death penalty for any individual working to further a “criminal enterprise or any person engaging in a related felony offense, who intentionally kills or counsels, commands, or causes the intentional killing of an individual,” but it prohibits anyone who commits such a crime and is mentally retarded from capital punishment (Weier 56). When Congress enacted the Federal Death Penalty Act in 1994 that added over fifty crimes punishable by death, it also exempted the mentally retarded from capital punishment. 

Following these decisions, the individual states of America were left to determine their own definitions of mental retardation and subsequent legal policies. In 1988, Georgia became the first state to categorically ban the execution of murderers found “guilty but mentally retarded.” Maryland passed similar legislation that took effect in July of 1989. Sixteen more states outlawed the execution of mentally retarded convicted criminals between 1989 and 2001. Currently, eighteen of the thirty-eight death-penalty states have such legislation, including California, Louisiana, Nevada, and Virginia. 

Legal procedures for determining a convicted criminal’s mental retardation vary from state to state. For example, in New Jersey the judge holds a pretrial hearing in which the defendant bears the burden of proving his or her mental retardation by examination of the evidence. If the defendant clearly and convincingly proves his or her mental retardation, the State is barred from seeking the death penalty. If the individual proves that he or she is “more likely than not” mentally retarded then the trial proceeds as a capital case. Should the defendant be found guilty, a trial by the same jury will be held, and the State will have to disprove the defendant’s mental retardation beyond a reasonable doubt. If the State cannot meet this burden then the Atkins claim will be considered comparable as a final verdict. If the State does meet this burden, then the defendant will be eligible for the death penalty and can raise mental retardation as a mitigating factor during the penalty phase (Sentivan 26). All thirty-eight states place the burden of proving mental retardation on the defendant, and all but six require that this be done by examination of the evidence. 

Confusion is preventing many states from clearly correcting their statutes to comply with the Atkins decision. Joshua Marquis, district attorney in Clatsop County, Oregon, said that the delay is due to the fact that “the court didn’t really say what [the states] needed to do” (Jost). All of the states have different definitions of mental retardation, some citing the DSM, others the American Association of Mental Retardation. As mentioned before, eighteen states categorically bar the execution of mentally retarded convicted criminals, and the remaining twenty favor case-by-case determinations to examine the defendant’s competency before the trial, if they can constructively participate in their own defense, and if they fully understand the nature of the punishment (Jost). This can be a very frustrating and lengthy process. 

Mental health, civil liberties, and human rights groups are known supporters of the movement to categorically ban the execution of mentally retarded convicted criminals. The American Association of Mental Retardation is one of many mental health groups that signed on to amicus curiae, or friend-of-the-court, briefs during the Atkins trial, urging the Supreme Court to excuse the mentally retarded from capital punishment. The executive director of the AAMR, Doreen Croser, was relieved when the Atkins decision was released, declaring that the practice of putting to death inmates that suffer from this condition was “barbaric” as they do not have the intellectual capacity to understand their crimes (Mossman). 

The American Psychological Association, which also signed on to the amicus curiae briefs, agrees with this view and said that IQ cut-off scores (that could become a life or death declaration for criminals) determined through psychiatric diagnoses are reliable because they are verified with time-tested instruments and protocols, such as the Wechsler Adult Intelligence Scale and the Stanford-Binet Intelligence Scales (Mossman). It has also been recommended that other, lesser-known tests be performed by psychologists and mental retardation specialists to determine the extent of the inmate’s adaptive skills and be taken into consideration when making a diagnosis of whether or not the inmate is mentally retarded. This would ensure that only the most culpable criminals are faced with the possibility of a death sentence and spare those “less guilty,” who many believe it would be morally wrong to execute. As for arguments that criminals might be able to fake this condition, mental health groups assure that the task is very difficult, considering the battery of reliable tests as well as the paper trail of academic and mental health records that generally follow a person diagnosed with mental retardation. 

Human Rights Watch is another group that has been very vocal about the legal plight of mentally retarded criminals. HRW opposes capital punishment in all circumstances, believing it to be cruel and a “violation of the right to life and of the fundamental dignity all human beings possess,” but they hold the execution of mentally retarded offenders to be “particularly unconscionable,” considering their limited mental functioning and subsequent disabilities (“Beyond”). They claim that persons with mental retardation suffer from difficulties as a result of their condition, including trouble with communication, logic, learning, planning, and strategic thinking. Mental retardation also impairs judgment, attention, memory, and the ability to understand consequences and abstract concepts. Human Rights Watch concludes that all of these disabilities result in difficulty learning and understanding causality, rendering mentally retarded criminals less culpable of their offenses and certainly not deserving of the death penalty. 

HRW also touches on an issue that many other like-minded groups point out—that mentally retarded criminals are especially vulnerable and frequently taken advantage of during legal proceedings. Because of their limited cognitive abilities, unreliable memories, and characteristic suggestibility, it is very difficult for these defendants to comprehend abstract legal concepts and to assist in their own defense by helping their lawyers to develop the facts of the case. Those who suffer from mental retardation are also eager to please, especially persons of authority, as well as unable to cope with stressful situations. As a result, many waive their rights to remain silent and even make false confessions. 

This is illustrated by the case of Earl Washington, a former farmhand from Virginia, whose IQ score has been assessed to be between 57 and 69. He knows some--but not all--letters of the alphabet, and like other mentally retarded individuals, is eager to please as well as easily confused and suggestible. In 1983, Earl was questioned by police after being arrested for a minor assault. His interrogation was lengthy and resulted in Earl’s confessions to various crimes, including the rape and murder of a young woman, Rebecca Williams, in 1982. Police found Earl’s other confessions to be false, but prosecuted him in the Williams case, basing this decision on his confession (although it had been full of factual errors) as well as Earl’s decision to waive his right to remain silent. He was sentenced to death after a three-day trial; the jurors later stated that their conviction was influenced significantly by Earl’s confession. A series of DNA tests eventually proved Earl innocent of the murder a mere matter of days before his scheduled execution. After 18 years in prison, Earl Washington was released on February 12, 2001 (“Beyond”). 

In addition to the previously mentioned disadvantages, because mentally retarded individuals are unable to understand the proceedings, it is not uncommon that the defendants alienate jurors by smiling, sleeping, staring off in court, or otherwise acting in a way that may be interpreted as callous and unremorseful. Others with mental retardation are ashamed of their disabilities and try to hide them, preventing their defense, the judge, and the jury from fully appreciating the effect their condition has on their conduct. Human Rights Watch also notes that mentally retarded defendants, especially those who are not financially well-to-do, are often represented by ineffective counsel. They claim that courts often appoint trial attorneys who are “too inexperienced, overworked, or uninterested” to properly defend their clients, pointing to numerous cases in which lawyers failed to present evidence of the defendant’s mental retardation, made “unintelligible, unfocused, and…remarkably prejudiced comments,” and left their clients to make their own closing arguments (“Beyond”). Finally, mentally retarded defendants face participants in the criminal justice system—including defense attorneys, prosecutors, judges, and juries—who are vastly ignorant of the nature and significance of mental retardation, are often more concerned with the political and professional consequences of obtaining a “victorious” death sentence than seriously considering the effect this condition has on the defendant’s comprehension and behavior, and frequently confuse the difference between guilt and culpability, not wanting to be perceived as condoning a murder when presented with a terrible crime. 

These arguments have led Human Rights Watch, along with many others, to conclude that executing mentally retarded individuals does not fulfill any of the central purposes of capital punishment--retribution, deterrence, and incapacitation--and HRW has made several recommendations to ensure equality and morality when dealing with mentally retarded offenders. They start by asking state legislatures to prohibit the possibility of death sentences for any individual with mental retardation or other mental disabilities. Adequate funds should be allocated to investigating offenders’ mental health status through the use of comprehensive psychological testing. Pre-trial procedures for settling disputed claims of mental retardation diagnoses should be put into practice and defendants should be allowed to raise the issue of their condition any time before sentencing and/or execution. HRW also recommends that state legislatures strengthen laws and procedures to make certain that all capital defendants have access to competent counsel, ideally experienced in representing clients with mental retardation, and financially-disadvantaged defendants are appointed free and adequate counsel for initial trials as well as post-conviction proceedings. It has also been proposed to create a “legislative presumption against the validity of waivers of Miranda rights” by suspects with mental retardation, especially those who confess without benefit of counsel (“Beyond”). Human Rights Watch has asked that all police investigators, prosecutors, defense counsel, judges, and juries become more familiar with the nature and significance of mental retardation and that accommodations be made to respect the rights of those with the disability. The use of expert witnesses when questioning a defendant’s mental retardation has been emphasized along with the employment of specially trained professionals who are experienced in the testing and diagnosis of this condition. As an alternative to capital punishment, Human Rights Watch insists that mentally retarded offenders be placed in specialized programs. When incarceration is necessary, HRW strongly recommends that the individual’s disabilities should be considered and that “confinement should be in a safe, habilitative setting” (“Beyond”).

“Respect for the inherent dignity of all humans and the inviolability of the person” is what Human Rights Watch cites as the cornerstone of human rights and their moral reasoning, as well as many others supporting a categorical ban of executing the mentally retarded (“Beyond”). The Arc, one of the oldest and largest organizations dealing with mental retardation, is among the supporters, as is The American Bar Association, which adopted a recommendation in line with the ban in 1989 (“Beyond”). The UN Economic and Social Council, in 1984, declared an elimination of the death penalty for “persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution” (Welsh). Amnesty International and the European Union have also appealed to cases in which mentally retarded defendants faced a sentence of death, arguing that executing such individuals is contrary to international standards. In fact, only three countries in the world still allow executions of mentally disabled offenders—Japan, Kyrgyzstan, and the United States. At least 35 inmates with mental retardation have been executed since the reinstatement of the death penalty in the United States in 1977 (Welsh). It is estimated that two-hundred to three-hundred current death row inmates qualify for a diagnosis of mental retardation.

These inmates could very likely be put to death if law enforcement advocates, capital punishment supporters, and strict constructionists have their way on this issue. Each of these groups strongly opposes a blanket exemption of mentally retarded criminals from the death penalty. Some are more lenient than others, still opposing a court-made ban but proposing that capital trials involving mentally retarded criminals be determined case-by-case instead of excusing a defendant solely based on their IQ score. They fear a “miscarriage of justice” and “guarantee of unequal treatment” if these defendants are not tried on an individualized basis (Jost). Handling cases individually will allow for the defendant’s personal culpability to be determined, ensuring that defendants who may be diagnosed as mentally retarded but who are as culpable as average mentally-functioning criminals are held accountable for their actions. Opponents of the ban are also concerned that instituting a categorical exemption will encourage fabricated defenses and appeals from criminals claiming to be mentally retarded who are truly of average mental functioning and adaptive skill. Prosecutors around the country have also expressed this concern, along with the idea that a ban would create a “cottage industry of psychologists…who will make people mentally retarded who have never been mentally retarded in their lives” (“Atkins”). 

Another argument presented by opponents is the unreliability of the mental retardation definition. The American Association of Mental Retardation has revised its criteria defining mental retardation ten times over the past century, the most recent revision published five days before the Atkins decision, in AAMR’s tenth edition of their official classification manual. The current definition is “a disability characterized by significant limitation both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before the age of 18” (Mossman). The American Psychological Association has a similar definition but categorizes mental retardation according to its severity—mild, moderate, severe, or profound. AAMR has rejected this approach since 1992, instead urging diagnosticians to examine limitations in the mentally retarded individual’s everyday living and categorize the extent of the condition by the degree of support they require—either “intermittent,” “limited,” “extensive,” or “pervasive” (Mossman). 

The reliability of IQ testing has also been called into question. The Flynn Effect is the observed pattern of intelligence test performance improving over time, causing IQ test norms to become obsolete generally within a generation. Major intelligence test manufacturers are forced to re-norm their tests every 15 to 20 years, requiring test-takers to answer more and more questions correctly. It has been observed that nearly 38% of test-takers who scored on the cusp of being eligible for a diagnosis of mental retardation (IQ score of 70) dropped into the definite retardation category when they took re-normed intelligence tests (Ceci). Since intelligence test-takers scores increase by default of the Flynn Effect the closer time gets to re-norming, it begs a clarification of who can really be diagnosed as mentally retarded on the basis of intelligence test scores. This phenomenon could have a significant impact on the criminal justice system. For example, cases in which the defendant was convicted in either the beginning or end of a re-norming period would mean that the defendant’s IQ score could be artificially higher or lower. Should a ban be mandated barring all mentally retarded offenders from the death penalty, their diagnosis dependent on their IQ score, this would certainly lead to inequality. Offenders whose IQ scores are considered borderline mental retardation could be tested again as definitely qualifying for a mental retardation diagnosis or definitely not qualifying, depending on when the intelligence test is next to be re-normed. This means that, dependent on when the offender was tested, an inmate who would qualify as mentally retarded could be put to death while an inmate who would qualify as normal-functioning could be barred from the same sentence for an equivalent crime. Therefore, many have concluded that IQ score determinations of mental retardation are arbitrary and even dangerous. 

Opponents of a blanket exemption that would excuse diagnosed mentally retarded inmates from the death penalty point out that the Atkins decision makes exactly the same kind of categorical distinction that has been illegal since the passage of the Americans with Disabilities Act. Ratified in July 1990, the ADA provides protections against discrimination based on physical and mental disabilities so that individuals are not denied jobs, accommodations, or public services solely based on their conditions (Mossman). Yet the Supreme Court majority stated that all persons diagnosed with mental retardation lack the capacity to be fully responsible for their crimes. Opponents not only view this decision as hypocritical but also fear that it could lead to more categorical exemptions for inmates with other mental limitations as a result of brain damage, mental disorders like schizophrenia, psychiatric conditions such as ADHD, and low levels of the neurotransmitter serotonin. Many are concerned that, with these exemptions available, psychiatrists will misuse their practice in an attempt to slowly eradicate the death penalty entirely. This would not only harm the profession but also the legal system (Mossman). 

Chief concerns underlying opponents’ arguments are that a blanket exemption from the death penalty for mentally retarded convicted criminals could mean that individuals who are just as culpable for their crimes as normal-functioning inmates would not receive the same punishment for equivalent offenses, leading to inequality and injustice. Also, retribution as one of capital punishment’s main functions would not be served. Opponents interpret this to mean that there would be no justice for the victim or their family. The most significant concern, though, is that inmates spared from death could someday be released back into the general population, possibly putting others at risk should the inmates repeat/resume their violent, criminal behavior. Samuel Francis, a syndicated columnist, expresses this perspective most clearly when he once wrote that, should the estimated 360 mentally retarded inmates currently on death row be released from incarceration, they may “pay you…your family…someone else or his family a visit,” and when these “brainless killers” do, “remember who it was that decided [that they] are not really to blame for what they are about to do to you” (Francis). 

I have struggled in my attempt to establish a position on whether all convicted criminals who are legally declared to be mentally retarded should be excused from the death penalty. Valuing the right to human life, I do not believe that any individual is entitled to take another’s life, whether they are the criminal or the authorities punishing the criminal. Valuing integrity, I also believe that the government sends a mixed message of condoning murder by essentially committing the very same act they are speaking out against when they execute an offender. For these reasons, I do not support the death penalty. The issue in this paper, though, is not my opinion on the death penalty but how this act should be applied to a specific group of individuals, which is why I have struggled to remain objective and establish a position. After much consideration of my research, I believe that there should be a ban on executing mentally retarded offenders, although with certain qualifiers, not because of my beliefs about the death penalty but because I feel that it would be the most ethical decision and would serve the greatest amount of good. 

Because a crime was committed, criminals who are suspected to be mentally retarded should be required to stand trial, but they should not bear the burden of proving their mental retardation. This task should be done by an impartial professional experienced in diagnosing this condition and who will thoroughly examine the individual’s mental functioning and adaptive abilities. Should a diagnosis of mental retardation be made and the trial finds the defendant guilty, a verdict of “Guilty but Mentally Retarded” should be employed and the defendant should be excused from a possible sentence of death. I believe that this specific verdict is necessary considering the fact that mentally retarded offenders may be just as guilty of their crimes as average-functioning offenders, but due to their condition they are not as culpable, and valuing equality, I do not believe that it would be fair to impose the same punishment that would be given to an offender who does not suffer from the same cognitive and adaptive limitations. 

A verdict of “Guilty but Mentally Retarded” should not mean that mentally retarded criminals exempt from a sentence of death should be allowed as free citizens back into the general population. Because they have proved capable of acting in a manner that puts themselves and others in danger, they pose a threat and releasing them would be socially irresponsible. Instead, they should be eligible for a life sentence spent in a facility that understands mental retardation and is sensitive to the inmate’s limitations and special needs. I believe that this proposed solution serves the greatest good as it provides some retribution or justice for the victim(s) and their loved ones, it ensures that the offender is incapacitated or unable to re-offend, and it spares the inmate from a sentence that would be too extreme and grossly unfair considering his/her condition and subsequent impairments. 

The debate over a categorical ban exempting mentally retarded criminals from the death penalty is a significant issue in America because it affects the legal system that is vital to the country’s success and social order. This debate also touches the lives of many citizens, as an estimated two- to three-hundred current death row inmates qualify for a diagnosis of mental retardation. I believe that it is imperative for America to come to a uniform decision that would benefit the greatest good, keeping in the mind the moral and ethical ideals that this country claims to hold so dear.


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