Beyond Reason

The Death Penalty and Offenders with Mental Retardation

[1] Editorial, November 22, 1998, commenting on the case of Johnny Paul Penry.

[2] See Denis Keyes, William Edwards, and Robert Perske, "People with Mental Retardation and Dying, Legally," 35 Mental Retardation 1 (February, 1997).  A list of defendants with mental retardation executed in the United States since 1976, as updated by The Death Penalty Information Center, can be found at www.deathpenaltyinfo.org/dpicmr.  William Edwards, an attorney with the Office of the Capital Collateral Counsel in Florida and an expert in the death penalty and people with developmental disabilities, has identified at least nine other persons to add to the list. Human Rights Watch telephone interview with William Edwards, February 6, 2001.

[3] For example, a poll by the Houston Chronicle found that nationwide, among people who otherwise support the death penalty, only 16 percent said they would support the execution of a person with mental retardation.  Steven Brewer and Mike Tolson, "A deadly distinction," Houston Chronicle, February 6, 2001. A July 2000 poll by the Behavior Research Center found that 71 percent of the people polled in Arizona opposed the death penalty for those with mental retardation; a July 2000 poll by the Charlotte Observer found that 64 percent of people polled in North and South Carolina said people with mental retardation should be exempted from the death penalty.  These and other poll results are available at www.deathpenaltyinfo.org/polls, visited February 5, 2001. In a California poll, only 19 percent of those polled supported the execution of persons with mental retardation.  See Dan Smith, "Death Penalty Supported in State," Sacramento Bee, March 14, 1997.  Public opposition to executing persons with mental retardation is not new: over a decade ago, a national Harris poll found 70 percent of Americans polled rejected such executions. See,  Saundra Torry, "High Court to Decide Whether Mentally Deficient Criminals Can Get the Death Sentence," Washington Post, January 11, 1989.

[4] Arizona, Florida, Missouri, Nevada, North Carolina, Oklahoma, and Texas.

[5] U.N. Commission on Human Rights resolution, "Question of the death penalty," E/CN.4/RES/1999/61, para. 3(e), adopted April 28, 1999; U.N. Commission on Human Rights resolution, "The Question of the death penalty," E/CN.4/RES/2000/65, para. 3(e), adopted April 27, 2000.

[6] See generally, James Liebman et al., "A Broken System: Error Rates in Capital Cases, 1973-1995," available on the web at http://justice.policy.net/jpreport/index.html. See also "Defense called lacking for death row indigents: But system supporters say most attorneys effective," Dallas Morning News, September 10, 2000, reporting that of 461death row inmates in Texas, fully one quarter had been represented by attorneys who had been reprimanded, placed on probation, suspended, or disbarred by the Texas Bar Association.

[7]Penry v. Lynaugh, 492 U.S. 302, 395 (1989).

[8] See the analysis of the prevalence of retardation by the Arc, at www.thearc.org/faqs/mrqa.html.  The Arc is a national organization representing people with mental retardation and their families.

[9] American Association on Mental Retardation (AAMR), "Definition of Mental Retardation," available at www.aamr.org/policies/faqmentalretardation.html, visited September 15, 2000. For the most part, statutes prohibiting the execution of persons with mental retardation adopt a version of this AAMR definition. Seven states and the federal government do not specify an I.Q. level in their definition, making this an issue for the court to determine based on expert testimony. Two state statutes say that an I.Q. of 70 or below "shall be presumptive evidence of mental retardation," thus leaving open the possibility that a person whose I.Q. is above 70 may also, through expert testimony, establish his or her mental retardation.

[10] The Arc, "When People with Mental Retardation go to Court," available at www.the arc.org/court/html, visited September 10, 2000. (The Arc was previously called the Association of Retarded Citizens.) See also Emily Fabrycki Reed, The Penry Penalty: Capital Punishment and Offenders with Mental Retardation (Lanham, Md.: University Press of America, 1993), p. 14.

[11] See George S. Baroff, Mental Retardation: Nature, Cause and Management, 3rd ed.(Philadelphia, Pa.: Brunner-Routledge, 1999).

[12] The intellectual capacity of children was historically the benchmark for assessing the extent of retardation. In 1910, the American Association on Mental Deficiency identified the three "levels of impairment" characterizing the "feebleminded": there were  "idiots," people "whose development is arrested at the level of a 2 year old";  "imbeciles," people "whose development is equivalent to that of a 2 to 7 year old at maturity"; and "morons," people "whose mental development is equivalent to that of a 7 to 12 year old at maturity." Fred J. Biasini, et al., "Mental Retardation: A Symptom And A Syndrome," in S. Netherton, D. Holmes, & C. E. Walker, eds., Comprehensive Textbook of Child and Adolescent Disorders (New York: Oxford University Press, 2000); also available at www.uab.edu/cogdev/mentreta.htm. The terminology entered common discourse as epithets reflecting the country's shameful history of prejudice and mistreatment of people with mental retardation. The punitive, exclusionary, and racist historical manipulation of the concept of "mental retardation" are addressed in Robert Perske, Deadly Innocence? (Nashville: Abingdon Press, 1995); Stephen Jay Gould, The Mismeasure of Man (New York: WW Norton, 1981); and J. David Smith, Minds Made Feeble (Austin: Pro-Ed, Inc., 1985).

[13]  Patricia Perez-Arce, Ph.D., "Neuropsychological evaluation of Luis Mata," January 27, 1992 (on file at Human Rights Watch).

 [14] See Biasini, "Mental Retardation." See also R.C. Sheerenberger, A History of Mental Retardation (Baltimore: Brookes Publishing Co., 1983) .

[15] American Association on Mental Retardation, Mental retardation: Definition, classification, and systems of supports (Washington, D.C.: American Association on Mental Retardation, 1992).

[16] With the upper ceiling on mental retardation reduced from an I.Q. of 85 to an I.Q. of 70, far fewer Americans are today diagnosed as "mentally retarded" than before. Although the lower I.Q. ceiling for mental retardation was agreed upon in part to avoid applying stigmatizing labels to so many people whose intelligence was below average, the changed I.Q. ceiling ironically had the effect of cutting off from social services such as special education many people who would have otherwise benefited from the extra support. Scholars have emphasized that because of the possibility of testing error, a person with an I.Q. of up to 75 should be considered "retarded" if the diagnosis is necessary to ensure access to special education or other assistance. See, e.g., H. J. Grossman, ed., Manual on Terminology in Mental Retardation (Washington, D. C.: American Association on Mental Deficiency, 1977).

[17]  H.J. Grossman, ed. Classification in Mental Retardation (Washington D.C.: AAMR, 1983), p. 11.

[18]  In Re Billy Dwayne White, Petition for Clemency and Request for Reprieve, April 22, p. 6 (on file at Human Rights Watch).

[19]  Human Rights Watch interview with Johnny Paul Penry at Ellis Unit, Huntsville, Tex., May 17, 1999.

[20] While most states that prohibit the execution of the mentally retarded use eighteen as the outside age, two states, Maryland and Indiana, set the age at twenty-two.

[21] During the early years of the twentieth century, people with mental retardation suffered from the widespread but erroneous public belief that they were utterly incapable of caring for themselves, potentially dangerous, and "unfit" to reproduce. People with this disability were forced into state institutions and often coercively sterilized -- a practice that was actually upheld by the Supreme Court in Buck v. Bell, 274 US 200 (1927).

[22]  Human Rights Watch telephone interview with Dr. Ruth Luckasson, Regents Professor of Educational Specialties, University of New Mexico at Albuquerque, N.Mex., June 2, 1999.

[23] For a thorough discussion of the ways in which people with mental retardation struggle to mask their disability, see Robert B. Edgerton, The Cloak of Competence (Berkeley, Calif.: University of California Press, 1993).

[24] Raymond Bonner and Sarah Rimer, "Executing the Mentally Retarded Even as Laws Begin to Shift," New York Times, August 7, 2000.   

[25] Human Rights Watch telephone interview with Scharlette Holdman, Executive Director, Center of Capital Assistance, San Francisco, Calif., May 31, 1999.

[26]  Human Rights Watch telephone interview with Sean O'Brien, Executive Director, Public Interest Litigation Clinic, University of Missouri, Kansas City, Mo., May 13, 1999.Name of defendant withheld at request of attorney.

[27]  Penry v. Lynaugh, 492 U.S. 302, 345 (Brennan, J. dissenting), quoting from Brief for the AAMR as Amici Curiae at p. 5.

[28]  Ruth Luckasson, "The Death Penalty and the Mentally Retarded," 22 American Journal of Criminal Law 276 (1994).

[29] George S. Baroff, "Capital Cases: Why Mental Retardation is 'Mitigating,'" The Champion (National Association of Criminal Defense Lawyers, August, 1998), available at http://209.70.38.3/Champion/articles/98aug02.htm, visited January 20, 2001.

[30] Robert Perske, Unequal Justice? What Can Happen When Persons with Retardation or Other Developmental Disabilities Encounter the Criminal Justice System (Nashville: Abingdon Press, 1991), pp. 100-101.

[31]  Human Rights Watch telephone interview with Nicholas Trenticosta, post-conviction attorney for Sawyer, January 24, 2001. Sawyer was executed in 1993.

[32] Tim McGlone, Matthew Dolan, and Bill Sizemore, "A Near-Fatal Injustice," Virginian-Pilot, January 22, 2001.

[33]  Hines. V. State, 384 So. 2d 1171, 1175 (Ala. Crim. App. 1980).

 [34] Perske, Unequal Justice, p. 19. Welcome is also mentally ill. His mental condition deteriorated so severely after he was put on death row that the prosecutor agreed in a hearing before the Louisiana Pardons Board in 1987 that he should not be executed. Human Rights Watch telephone interview with Nicholas Trenticosta, post-conviction counsel for Herbert Welcome, February 21, 2001.

[35] Human Rights Watch interview with Richard Burr and Mandy Welch, counsel for Fairchild and White, Houston, Tex., May 18, 1999. Fairchild was executed in 1995, White in 1992.

[36] See James W. Ellis and Ruth Luckasson, "Mentally Retarded Criminal Defendants," 53 George Washington Law  Review 423, 426 (1985).

[37] See, Leigh Ann Davis, "People with Mental Retardation in the Criminal Justice System," available at www.thearc.org/faqs/crimqa.html, visited September 2, 2000.

[38] According to psychologist and mental retardation expert Dr. Timothy Derning, people with mental retardation are "easy prey for designing others." Human Rights Watch telephone interview with Timothy Derning, June 4, 1999.

[39] Human Rights Watch interview with Timothy Derning. The co-defendants of a person with mental retardation are usually able to better protect their interests in the criminal justice system. According to Derning, "Many times a co-defendant [with normal intelligence] will just roll over. A guy with mental retardation will be left holding the bag. The bright guy cuts a deal because he knows how to get out of it."

 [40] Name changed to protect his identity.

[41]  Appendix J, In Re Billy Dwayne White, Petition for Clemency and Request for Reprieve, before the Governor of Texas and the Texas Board of Pardons and Paroles, April 16, 1992 (on file at Human Rights Watch).

[42] See Luckasson, "The Death Penalty and the Mentally Retarded".

[43] Reed, Penry Penalty, p. 17.  On appeal, Smith's confession and waiver of Miranda rights were ruled invalid because of his mental retardation.

[44]  A high proportion of death row inmates have extensive histories of poverty, abuse, and mental disorders. "The nexus between poverty, childhood abuse and neglect, social and emotional dysfunction, alcohol and drug abuse, and crime is so tight in the lives of many capital defendants as to form a kind of social historical 'profile.'" Craig Haney, "The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, 35 Santa Clara Law Review 547, 580 (1995).

[45]  Phyllis L. Crocker, "Childhood Abuse and Adult Murder: Implications for the Death Penalty," 77 North Carolina Law Review 1143, 1158 (1999).

[46]  "The degree of risk and the severity of the violent behavior are exacerbated when the abused child, as an adult, has other psychological, neurological, and cognitive impairments." Ibid., p. 1160.

[47] Patricia Peres-Arce, Ph.D., "Neuropsycholological Evaluation of Luis Mata," January 27, 1992; In Re the Application of Luis M. Mata, Application for Executive Clemency, submitted to the Arizona Board of Executive Clemency (on file at Human Rights Watch).

[48] Ramsey Campbell, "Lawyers Cite Horrors On 2 Sides In Hall Resentencing," Orlando Sentinel Tribune, December 13, 1990. More than twenty years ago, Freddie Lee Hall and a partner, Mack Ruffin Jr., killed a young woman, and then killed a police officer while fleeing from the crime. Ruffin was sentenced to life imprisonment, even though he may have been the one who pulled the trigger -- but Hall, despite his retardation, was given the death sentence in 1978. When his sentence was handed down, his three public defenders wept openly in court. See Peter Wallsten, "Does the State of Florida really need to execute this man?" St. Petersburg Times, December 5, 1999; Bill Bond, "Court Performances Can't Be Dismissed," Orlando Sentinel Tribune, December 19, 1990; see also Frank Stansfield, "20 Years Of Waiting; Passing Time Takes Its Toll On Murder's Many Victims," Orlando Sentinel Tribune, March 22, 1998.

[49]  Carter's execution for a crime committed when he was seventeen violated international prohibitions against the execution of youthful offenders. See Article 6 of the International Covenant on Civil and Political Rights.

[50]  Affidavit of Dorothy Otnow Lewis, M.D., May 23, 1985 (on file at Human Rights Watch).

 [51] See generally Biasini, "A Symptom And a Syndrome."   

[52] Information about Nollie Martin was drawn from Chris Lavin, "Videotape of doomed inmate is released," St. Petersburg Times, April 29, 1992 and from Amnesty International's "United States of America: Open letter to the President on the death penalty," AI index AMR 51/01/94.

[53]  Human Rights Watch interview with Gregory Wiercioch, counsel for Emile Duhamel, Texas Defenders Services, Houston, Tex., May 18, 1999.

[54]  Universal Declaration of Human Rights, adopted by U.N. General Assembly Resolution 217A(III), December 10, 1948.

[55] See, e.g., Statement of Rt. Hon. Chris Patten, delivered to European Parliament, October 25, 2000; Declaration by President, European Union, February 8, 2000; and other European Union statements on the death penalty available on the European Union website, www.european.eu.int.

[56]  See Death Penalty Information Center website for updated information on the death penalty internationally, www.deathpenaltyinfo.org.

[57]  U.N. General Assembly, "Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty," G.A. res. 44/128, annex, 44 U.N. GAOR Supp. (No. 49) at 207, A/44/49 (1989), entered into force July 11, 1991.

[58] U.N. Commission on Human Rights, "Extrajudicial, summary or arbitrary executions: Report by the Special Rapporteur," E/CN.4/1997/60, para. 89 (1996); U.N. Commission on Human Rights, "Extrajudicial, summary or arbitrary executions: Report by the Special Rapporteur," E/CN.4/1995/61, para. 380 (1994); U.N. Commission on Crime Prevention and Criminal Justice, "Capital punishment and implementation of the safeguards guaranteeing the protection of the rights of those facing the death penalty: Report of the Secretary-General," E/CN.15/1996/19,para. 74, (1996).

[59] U.N. Economic and Social Council resolution 1989/64, "Implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty," ESC/RES/1989/64, adopted May 1989.

[60] U.N. Commission on Human Rights Resolution, "Question of the Death Penalty," E/CN.4/RES/1999/61, adopted April 28, 1999; U.N. Commission on Human Rights Resolution, "The Question of the death penalty", E/CN.4/RES/2000/65, adopted April 27, 2000.

[61] U.N. Commission on Human Rights, "Extrajudicial, summary or arbitrary executions: Report by the Special Rapporteur," E/CN.4/1998/68/Add.3, para. 145 (1998).

[62]  Ibid., para. 58.

[63]  U.N. Commission on Human Rights, "Extrajudicial, summary or arbitrary executions: Report of the special rapporteur," E/CN.4/2000/3, para. 97 (2000),.

[64]Penry v. Lynaugh, 492 U.S. 302 (1989).

[65] Ibid., 492 U.S. at 328. The jury was to determine whether to impose the death penalty by answering three questions: "Did Penry act deliberately when he murdered Pamela Carpenter? Is there a probability that he will be dangerous in the future? Did he act unreasonably in response to provocation." 492 U.S. at 319. 

[66] Ibid., 492 U.S. at 330 (citations omitted).

[67] Ibid., 492 U.S. at 334.

[68] Ibid., 492 U.S. at 336-337.

[69] Ibid., 492 U.S. at 345.

[70] Ibid., 492 U.S. at 346.

[71] Ibid., 492 U.S. at 348 (Brennan, J. dissenting) (citations omitted).

[72]Arkansas,Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, Nebraska, New Mexico, New York, South Dakota, Tennessee, and Washington all prohibit such executions.  New York state forbids the execution of the mentally retarded except in the case of a prisoner who commits murder. See Death Penalty Information Center at www.deathpenaltyinfo.org, visited February 6, 2001. 

[73] Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin as well as the District of Columbia prohibit the death penalty.

[74]  The Anti-Drug-Abuse Amendments Act of 1988 states that a "sentence of death shall not be carried out upon a person who is mentally retarded." 21 U.S.C. §848(1).In 1994, Congress passed the Violent Crime Control and Law Enforcement Act, which expanded applicability of the federal death penalty but retained the prohibition on the execution of persons with mental retardation. 18 U.S.C. §3596(c).

[75] See Bonner and Rimer, "Executing the Mentally Retarded." In addition to the polls cited in footnote 3 above, see the results of the sixteen polls included in Denis W. Keyes and William J. Edwards, "Mental Retardation and the Death Penalty: Current Status of Exemptions Legislation," 21 Mental and Physical Disabilities Law Reporter 687, 688 (1997).

[76] The AAMR submitted an amicus brief of to the U.S. Supreme Court in Penry v. Lynaugh urging a constitutional prohibition on the execution of persons with mental retardation.  Ten mental heath organizations joined the brief, including the American Psychological Association, the Association for Persons with Severe Handicaps, the American Association of University Affiliated Programs for the Developmentally Disabled, the National Association of Superintendents of Public Residential Facilities for the Mentally Retarded, and the Mental Health Project.

[77] See The Arc, "Position Statement on Access to Justice and Fair Treatment under the Criminal Law," at www.thearc.org/position-statements.htm, visited February 20, 2001.

[78]  See Resolution of the ABA House of Delegates (Feb. 1989).  See also American Bar Association,  "Q & A's on the Death Penalty," December 1999, available at www.abanet.org/media/deathpenaltyqa, visited August 23, 2000.

[79] Human Rights Watch telephone interview with Ruth Luckasson, January 29, 2001. Luckasson provided another example of Sawyer's limited comprehension of basic concepts.  When asked to define "grave uncertainty" Sawyer explained that it meant "you dig a grave."

[80]  SeeColorado v. Connelly, 479 U.S. 157 (1986); Edwards v. Arizona, 451 U.S. 477 (1981).

[81] Human Rights Watch interview with Clive Stafford-Smith, Executive Director, Louisiana Crisis Assistance Center, New Orleans, La., May 19, 1999.  Robert Perske, who has written extensively on the fate of mentally retarded offenders in the criminal justice system, notes that some mentally retarded people may think that waiving one's rights means waving at the "right" rather than at the "wrong," or has something to do with ocean waves.Human Rights Watch interview with Robert Perske, Darien, Conn., July 11, 1999.

[82] Article 14.3(g), International Covenant on Civil and Political Rights.

[83] The Supreme Court established the constitutional requirement of the warning in Miranda v. Arizona, 384 U.S. 436 (1966), and recently affirmed the obligation of the police to expressly provide it in Dickerson v. U.S., 530 U.S. 428 (2000).  These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda v. Arizona, 384 U.S. at 479.

[84]  Miranda v. Arizona, 384 U.S. at 444.

[85] In a recent study, researchers tested groups of individuals with and without mental retardation on their comprehension of Miranda rights.  They found that individuals with mental retardation had significant problems understanding the Miranda warning; that considerably more persons with mental retardation than without did not meet minimum criteria for competence; and that considerably more persons with mental retardation did not understand any of the substantive portions of the warning. Caroline Everington and Solomon Fulero, "Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental Retardation," 37 Mental Retardation 212 (June, 1999).

[86]  See, Solomon Fulero and Caroline Everington, "Assessing Competency to Waive Miranda Rights in Defendants with Mental Retardation," 19 Law and Human Behavior 533 (1995); George S. Baroff, Mental Retardation: Nature, Cause and Management (Hemisphere Publishing Corporation, 1986).

[87]  Ellis and Luckasson, "Mentally Retarded Criminal Defendants," p. 448 (citations omitted).

[88]  Part of the transcript of Washington's questioning about his Miranda waiver is reproduced in Paul T. Hourihan, "Earl Washington's Confession, Mental Retardation and the Law of Confessions," 81 Virginia Law Review 1471, 1482 (1995) (citations omitted).

[89]Hines v. State, 384 So. 2d 1171, 1181 (Ala. Crim. App. 1980).

[90] The American Bar Association's Criminal Justice Standards recognize the impact of mental retardation on the voluntariness of confessions.  "Official conduct that does not constitute permissible coercion when employed with non-disabled persons may impair the voluntariness of statements of persons who are mentally ill or mentally retarded." Standard 7-5.8, passed by the ABA House of Delegates on August 10, 1988.

[91] See Carol Sigelman et al., "When in Doubt, Say Yes: Acquiescence in Interviews with Mentally Retarded Persons,"  Mental Retardation (April 1981), reporting on the tendency of mentally retarded individuals to respond "yes" to questions regardless of their content.

[92] President's Panel on Mental Retardation: Report of the Task Force on Law, 33 (1963), quoted in Ellis and Luckasson, "Mentally Retarded Criminal Defendants," pp. 414, 451.

[93]  Colorado v. Connelly, 479 U.S. 157 (1986).

[94]  Hourihan, "Earl Washington's Confession," p. 1482 .

[95] A survey of clients in the New Jersey Developmentally Disabled Defenders program found that 63% believed that being arrested meant one must be guilty. Suzanne Lustig, "The Hidden Population in the Criminal Justice System: Providing Successful Advocacy Services to Defendants with Mental Retardation," submitted to The President's Committee on Mental Retardation August 7. 1998, p.15, (on file with Human Rights Watch).  Ms. Lustig is the Director of the Developmentally Disabled Defenders Program, sponsored by The Arc of New Jersey. As Robert Persketold Human Rights Watch, "people with mental retardation just don't trust their own thinking." Human Rights Watch interview with Robert Perske, Darien, Conn., July 11, 1999.

[96] See generally Note, "Constitutional Protection of Confessions Made by Mentally Retarded Defendants," 14 American Journal of Law and Medicine, 431 (1989); Hourihan, "Earl Washington's Confession."       

[97] See generally Peter Brooks, Troubling Confessions (University of Chicago Press, 2000); Donald Connery, ed., Convicting the Innocent (Cambridge: Brookline Books, 1996).

[98] Dana Priest, "At Each Step, Justice Faltered for Virginia Man," Washington Post, July 16, 1989.

[99] Ibid.

[100]Human Rights Watch interview with Scharlette Holdman.

[101] See, e.g., Stephen B. Bright, "Counsel for the Poor: The Death Penalty Not for the Worst Crime but for the Worst Lawyer," 103 Yale Law Journal 1835 (1994).

[102]In cases involving prejudicial error, more than 80 percent of the capital defendants were found by juries or judges to merit sentences less severe than death once the error had been cured, and a full 7 percent of capital defendants in cases involving prejudicial error were later found to be completely innocent. See generally Liebman, et al.,"A Broken System."

[103] Ibid.

[104] See Dallas Morning News, September 10, 2000.

[105] Reed, Penry Penalty, p. 115; Jones v. State, 381 So. 2d 983 (Miss. 1980); Jones v. Thigpen, 788 F. 2d 1101 (5th Cir., 1986).

[106]Jones v. Thigpen, 788 F. 2d 1101 (5th Cir., 1986).

[107]  Petition for Writ of Habeas Corpus, In Re Robert Wayne Sawyer, Oct. 8, 1990. The U.S. Supreme Court affirmed the lower federal courts' denial of Sawyer's habeas petition in Sawyer v. Whitley, 505 U.S. 333 (1992).

[108] Brief of Petitioner-Appellant and Reply Brief of Petitioner-Appellant, Robert Anthony Carter v. Johnson, (1996) (on file at Human Rights Watch).

[109] See generally Alisia St. Florian, "Fifth Amendment, Miranda Waiver And Fourteenth Amendment Voluntariness Doctrine In Cases Of Mentally Retarded And Mentally Ill Criminal Defendants," 4 Suffolk J. Trial & App. Adv. 271 (1999) and Kevin P. Weis, "Confessions Of Mentally Retarded Juveniles and The Validity Of Miranda Rights Waiver," 37 Brandeis Law Journal. 117 (1998). See also People v. Perez, 592 N.E. 2d 984 (Ill. 1992).

[110] "First, the defendant must show that counsel's performance was deficient.  This requires a showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.  Second, the defendant must show that the deficient performance prejudiced the defense.  This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose [sic] result is reliable."  Strickland v. Washington, 466 US 668, 686,  (1984).  To prove prejudice,  "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Ibid., at p. 694.

[111] See Annotation: "Propriety of Imposing Capital Punishment on Mentally Retarded Individuals," 20 A .L.R 5th 177 (citing cases in which counsel failed to present mitigating evidence of retardation).  Regarding ineffective assistance of counsel for capital defendants generally, see Bright, "Counsel for the Poor."

[112]  Human Rights Watch telephone interview with John Wright, October 11,2000.

[113]Tison v. Arizona, 481 U.S. 137 (1987).

[114]Ford v. Wainwright, 477 U.S. 390, 410 (1986). Ford addressed the question of whether the Eighth Amendment prohibits the execution of a defendant who has been convicted and sentenced to death but is insane at the time the execution is to occur. U.S. law, drawing on longstanding legal tradition, has held that if a person is determined to be mentally incompetent before trial, he or she cannot be tried at all until competence is regained.  Mental illness can also give rise to a finding of "not guilty by reason of insanity."

[115]Thompson v. Oklahoma, 487 U.S. 815 (1988).International human rights law, however, forbids the execution of any person who was under the age of eighteen when the crime was committed. International Covenant on Civil and Political Rights, Art.6(5); The Convention on the Rights of the Child, Art.37(a).  Of the thirty-eight U.S. states that permit the death penalty, fifteen prohibit executing any person who was under the age of eighteen when the crime was committed. Another four set the minimum age at seventeen. Death Penalty Information Center, "Juveniles," available at www.deathpenaltyinfo.org, visited August 24, 2000.

[116]Thompson v. Oklahoma, 487 U.S. at. 838.

[117]  Lambert v. State, 984 P.2d 221 (Okla. Crim. App. 1999) (Chapel, P.J., dissenting); cert. denied, 528 U.S. 1087 (2000).Judge Chapel dissented from the court's majority opinion approving the execution of a mentally retarded man convicted of murder.  The defendant could not make change, spelled no better than a seven-year-old, read at a third-grade level, and had an I.Q. of 68. According to Judge Chapel, the defendant's mental retardation had limited his ability to work or survive. 

[118]  In some cases the sentencer is a judge.

[119] Carol Steiker and  Jordan Steiker, "Defending Categorical Exemptions to the Death Penalty: Reflections on the ABA's Resolutions concerning the Execution of Juveniles and Persons with Mental Retardation," 61 Law & Contemporary Problems  89 (1998).

[120]  Penry v. Lynaugh, 492 U.S. at 346 (Brennan, J. dissenting).

[121] For an overview of strategies prosecutors may use when prosecuting a defendant with mental retardation, see William J. Edwards, "How to Demystify the Prosecution's Efforts of Minimizing the Severity of Your Client's Mental Retardation," presented at the State Bar of South Dakota Criminal Law Continuing Legal Education course on October 9, 1998 (on file at Human Rights Watch).

[122]  Mike Tolson, "Death sentence heightens debate over executing retarded," Houston Chronicle, February 12, 1995.

[123] See generally Edward Miller, "Executing Minors and the Mentally Retarded: The Retribution and Deterrence Rationales,"43 Rutgers Law Review 15 (1990).

[125] There is no empirical evidence that the existence of the death penalty has any deterrence effect; to the contrary, there is considerable evidence that it has no such effect. For example, as a recent New York Times analysis of state homicide rates revealed during the last 20 years, the homicide rate in states with the death penalty has been 48 percent to 101 percent higher than in states without the death penalty. See, Raymond Bonner and Ford Fessenden, "Absence of Executions: A Special Report," New York Times, September 22, 2000.See also, Jon Sorensen, et al., "Capital punishment and Deterrence: Examining the Effect of Executions on Murder in Texas," Crime and Delinquency,  (October, 1999), pp. 481-493.

[126] General background information from Human Rights Watch telephone interview with John Blume, counsel for Arthur, June 1, 1999.

[127] John Blume and David Bruck, "Sentencing the Mentally Retarded to Death: An Eighth Amendment Analysis," 41 Arkansas Law Review 726 (1988).

[128] David Stout, "The Lawyers of Death Row," New York Times, February 14, 1988.

[129]  Joseph Frazier, "Too Retarded to Die for Crimes? Laws Say No," Los Angeles Times, April 17, 1988.

[130]  State v. Arthur, 374 S.E. 2d. 291, 293-194. (S.C. 1988); Human Rights Watch telephone interview with David Bruck, counsel for Arthur, February 26, 2001. Evidence of Arthur's retardation is detailed in Brief of Appellant, State v. Arthur, December 21, 1987 (on file at Human Rights Watch).

[131] Human Rights Watch interview with Ruth Luckasson, January 29, 2001. See also, South Carolina v. Arthur, Appellant's Brief, in the Supreme Court of South Carolina, December, 1987, p. 12-13.

[132]  Human Rights Watch interview with Ruth Luckasson, January 29, 2001.

[133] "Death sentence voided," Washington Post, November 15, 1988.

[134] Reed, Penry Penalty, p. 84.

[135] Ibid.

[136] Perske, Unequal Justice, p.  31.

[137] Ibid., quoting from the Application of Jerome Bowden for a 90-Day Stay of Execution and for Commutation of his Sentence of Death, submitted to the Georgia Board of Pardons and Paroles.

[138]Bowden v. Francis, 733 F.2d 740, 747 (11th  Cir. 1984).

[139]Bowden v. State, 239 Ga. 821 (1977).

[140] See testimony of Jerome Bowden at his December 6, 1976 trial (on file with Human Rights Watch).

[141] Joseph Frazier, "Too Retarded."

[142] Ibid.

[143] Editorial, Atlanta Journal and Constitution, June 21, 1996.

[144] Perske, Unequal Justice, p. 31, quoting from Application of Jerome Bowden.

[145] Ibid., p. 33.

[146] Frazier, "Too Retarded."

[147] Reed, Penry Penalty, p. 86.

[148] Information about Oliver Cruz comes from Human Rights Watch telephone interview with Jeffrey Pokorak, post-conviction counsel for Cruz,  February 25, 2001; Cruz v. Johnson, Petition for Writ of Certiorari to the United States (on file at Human Rights Watch); In Re Oliver David Cruz, Petition for a Reprieve of Execution, Before the Texas Board of Pardon and Paroles, (on file at Human Rights Watch); Bonner and Rimer, "Executing the Mentally Retarded." 

[149] Petition for Reprieve of Execution, p. 9.

[150] Petition for Certiorari, p. 7, quoting from trial transcript.

[151]  Cruz v. Johnson, 121 S.Ct. 11 (2000).

[152] See Tolson, "Death Sentence Heightens"; Robert Stanton, "Retarded Teen Guilty of Murder," Houston Post, February 4, 1995; wire reports, Fort Worth Star-Telegram, February 10, 1995.

[153] Jennifer Liebraum, "Trial to begin in slaying of popular dentist," Houston Chronicle, January 30, 1995.

[154] Tolson, "Death sentence heightens debate."

[155] John Makeig, "Retarded teen convicted in killing dentist for car," Houston Chronicle, February 4, 1995.

[156] Tolson, "Death sentence heightens debate."

[157]  Jennifer Liebraum, "Dentist's murderer gets death penalty," Houston Chronicle, February 9, 1995.

[158] Because he committed his crime when he was seventeen years old, Dixon's sentence violates international human rights law.  See Article 6 (5) of the ICCPR ("sentence of death shall not be imposed for crimes committed by persons below eighteen years of age").

[159]  Human Rights Watch interview with Tony Tyrone Dixon at Ellis Unit, Huntsville Tex., May 17, 1999.

[160] Information on Emile Duhamel from Human Rights Watch interview with Greg Wiercioch. See also, Duhamel v. Scott, Petition for Writ of Habeas Corpus and Motion for Stay of Execution and For an Evidentiary Hearing," filed September 26, 1995 (on file at Human Rights Watch).  Extensive information and documentation on Duhamel's case is available at www.lonestar.texas.net/~acohen. Voluminous documentation on Duhamel's mental condition was provided to Human Rights Watch by his counsel and is on file at Human Rights Watch.

[161]  Duhamel v. Collins, 955 F.2d 962 (5th Cir. 1992).

[162] Because Duhamel refused to leave his cell for legal visits, the attorney obtained a court order allowing Duhamel to interview him in front of the cell.

[163] Transcript of interview of Emile Duhamel, provided by Gregory Wiercioch, on file with Human Rights Watch and available on the web at http://lonestar.texas.net/~acohen/transcript1.html.

[164] Reed, Penry Penalty, p. 119; Joe Parham, "Condemned Man Called Most Retarded On Death Row," United Press International, October 12, 1987.    

[165] Parham, "Condemned Man."

[166]Holloway v. State, 361 S.E.2d 794 (Ga. 1987); Reed, Penry Penalty, pp. 119-120.

[167] Perske, Unequal Justice, p. 18.

[168] Reed, Penry Penalty, p. 111; Parham, "Condemned Man."

[169]  Lane's prolonged and bizarre series of interactions with the police -- including one in which he invited the police to come eat cantaloupe with him at his house -- are detailed in Kansas v. Lane, 940 P.2d 422 (Kan. 1997).

[170]  Debbie Hiott, "Jurors hear Lane's 1991 confession in 8-year-old's death," Austin American-Statesman, February 9, 1994. Lane's stepfather and mother were indicted as co-defendants but the charges were subsequently dropped.  The stepfather died in January 1994; Lane's mother is in a mental health facility. Debbie Hiott, "Lane sentenced to death for murder of 8-year-old girl," Austin American-Statesman, February 17, 1994.

[171]  Lane was subsequently returned to Kansas and was tried and convicted for the murder of Nancy S. He was then returned to the custody of Texas.

[172]  Human Rights Watch telephone interview with William Allison, post-conviction counsel for Lane, Austin, Tex., February 26, 2001.

[173]  Ibid.

[174] Monica Polanco, "40 years probing criminal minds, Williamson Sheriff Ready for a Change." Austin American Statesman, July 31 2000. William Allison points out that the fact that a "crusty, old Texas ranger" who would never permit a grown man to sit in his lap let Lane do, so showed the policeman's awareness of Lane's mental condition. Human Rights Watch interview with William Allison.

[175]  Bonner and Rimer, "Executing the Mentally Retarded."

[176]Kansas v. Lane, 940 P.2d 422 (Kan. 1997).

[177] Bonner and Rimer, "Executing the Mentally Retarded."

[178] Background information on Ramon Martinez-Villareal from Human Right Watch telephone interview with Sean O'Brien, attorney for Martinez-Villareal, April 29, 1999.

[179] Frank Murray, "U.S. Argues World Court Can't Halt Va. Execution" Washington Times, April 14, 1998.Vienna Convention on Consular Relations and Optional Protocols, U.N.T.S. Nos. 8638-8640, vol. 596, pp. 262-512, April 24, 1963.   Article 36 of the Convention requires that foreign nationals detained in member states be notified of their right to communicate with their consular officials. The U.S. ratified the Vienna Convention in 1969. Leigh Marjamaa, "Death Row Debate: Mexico Fights to Protect Citizens in U.S. Prisons," The News, June 14, 1998.

[180] Human Rights Watch interview with Sean O'Brien, April 29, 1999.

[181] Ibid.

[182]Arizona v. Martinez-Villareal, 702 P.2d. 670, 673 (Ariz. 1985).

[183] Ibid.; see also Bonner and Rimer, "Executing the Mentally Retarded."

[184] Human Rights Watch interview with Sean O'Brien, April 29, 1999.

[185] Michael Ross, "Don't Execute Mentally Disturbed Killers," The Humanist, January 1999.

[186] Forensic Unit Diagnostic Staff Conference report, Virginia Department of Mental Health and Mental Retardation,  November 28, 1975, (on file with Human Rights Watch). See also Reed, Penry Penalty, p.81.

[187] Ross, "Don't Execute."

[188] Case note by M. Maurice Ryans, M.D., Chief of Service, Forensic Unit, Virginia Department Mental Health and Mental Retardation, June 23, 1978, (on file with Human Rights Watch).

[189] "Executing Mentally Impaired Prisoners is Unjust and Cruel," Dallas Morning News, November 22, 1998.

[190] General information about Luis Mata provided by Jeffrey Kirchmeier, counsel for Luis Mata. Human Rights Watch  telephone interview with Jeffrey Kirchmeier, May 25, 1999.

[191] Declaration of Dr. Timothy Derning, psychologist, January 11, 1992, (on file with Human Rights Watch).

[192] See generally Affidavit of Michael Bayless, June 28, 1995, (on file with Human Rights Watch); see also Affidavit of Richard I. Lanyon, psychologist, August 13, 1993, (on file with Human Rights Watch).

[193] Declaration of Derning.

[194] Pamela Manson, "Death Row Appeal cites Brain Damage; Violent Childhood Described," Arizona Republic, July 3, 1995.

[195] Declaration of Clemente Mata, sister of Luis Mata, Exhibit 11, In Re Luis Mata , Application for Executive Clemency, Before the Arizona Board of Executive Clemency, (copy on file with Human Rights Watch).

[196] Peres-Arce, "Neuropsychological Evaluation."

[197] See declaration of Derning.

[198] See In Re the Application of Luis M. Mata, Application for Executive Clemency, submitted to the Arizona Board of Executive Clemency.

[199] Luis Mata, like many people, fought hard to keep his retardation a secret.  One of his attorneys said ruefully, "I had no idea [he was mentally retarded]… He would talk about 'habeas' and read the briefs. Later, I realized he used words without knowing what they meant." Human Rights Watch interview with Jeffrey Kirchmeier.

[200] Luis Mata Application for Executive Clemency, p. 24.

[201] Manson, "Death Row."

[202]State v. Mata, 609 P.2d 48 (Ariz. 1980).

[203] Death Penalty Information Center.

[204] General background information on Eddie Mitchell from Human Rights Watch interviews with Clive Stafford-Smith and Emily Bolton of the Louisiana Crisis Assistance Center, May 19, 1999, May 21, 1999 respectively.  See also State of Louisiana v. Eddie Mitchell, Brief Amicus Curiae of the Louisiana Public Defender's Association in Support of Eddie Mitchell's Request that this Court Grant Supervisory Writs and Hear Full Argument on Whether a Mentally Retarded Person who is Condemned to Death May be Denied Counsel and Funds for His Release, filed September 18, 1998, Case 98 KP 2445, Louisiana Supreme Court.

[205] Affidavit of Ivory Bellony, March 28, 1997 (on file at Human Rights Watch).

[206] Document on file at Human Rights Watch.

[207]When an attorney from the Louisiana Crisis Assistance Center asked Mitchell if he had understood what "waiving his rights" meant, Mitchell raised his right hand and waved. Human Rights Watch interview with Emily Bolton.

[208] There is extensive information on Penry's case in the published court decisions and numerous press accounts.  Good summaries of Penry's mental retardation and childhood history are also provided in Request for Clemency or Reprieve for Johnny Paul Penry, December 13, 2000, filed with Texas Board of Pardon and Paroles, p. 4, (on file with Human Rights Watch); also see generally Petition for Writ of Habeas Corpus, No. H-97-CV-04094, S.D. Tex.,  March 2, 1998, (on file with Human Rights Watch). See also Reed, Penry Penalty and Perske, Unequal Justice..

[209] Petition for Writ of Habeas Corpus, p. 9.

[210] Penry Request for Clemency, p. 9; Ibid., Perske, Unequal Justice, p. 63; Penry Petition for Writ of Habeas Corpus, p. 9.

[211] Reed, Penry Penalty, p. 2; see also Penry v. Lynaugh, 492 U.S. 302, 307, 309 (1989).

[212] Perske, Unequal Justice, p.  65.

[213]Penry Petition for Writ of Habeas Corpus, p. 9.

[214] Perske, Unequal Justice, p.  63.

[215] Ibid,. p. 64.

[216] See Penry v. Lynaugh, 492 U.S. 302, 307 (1989).

[217] Ibid.

[218] Ibid., p. 65; see also Raymond Bonner and Sarah Rimer, "Mentally Retarded Man Facing Texas Execution Draws Wide Attention," New York Times, November 12, 2000.

[219] See Penry v. Lynaugh, 492 U.S. 302, 328 (1989).

[220] Perske, Unequal Justice, pp. 68, 71

[221] Bonner and Rimer, "Mentally Retarded."

[222] General information about Anthony Porter from Human Rights Watch telephone interview with Daniel Sanders, attorney for Anthony Porter, May 5, 1999.

[223] Eric Zorn, "Questions Persist as Troubled Inmate Faces Electrocution," Chicago Tribune, September 21, 1998, describing the reaction Washington's defense experts initially had to him.

[224] Human Rights Watch interview with Daniel Sanders.

[225] Ibid.

[226] Adriana Colindres, "Death Row Dilemma," State Journal-Register, Springfield, Ill., October 4, 1998.

[227] Zorn, "Questions persist."

[228] CNN, "Struggle to be Normal, Part 4: Criminal Justice, " October 2, 1994.

[229] General background information on Earl Washington from Human Rights Watch telephone interview with Gerald Zerkin, attorney for Washington, May 13, 1999. A detailed review of his case is presented in McGlone, et al, "A Near-Fatal Injustice."

[230]  Ibid.

[231] Ted Koppel, "Crime and Punishment - A Matter of Life and Death," ABC News Nightline, September 14, 2000; Jim Dwyer, "Testing the Rush to Death Row," New York Daily News, September 7, 2000.

[232] CNN, "Struggle."

[233] Tim McGlone, et al., "A Near-Fatal Justice."

[234] Dwyer, "Testing the Rush."

[235] Ibid.; see also Washington v. Virginia, 323 S.E. 2d. 577 (1984), cert. denied, 471 US 1111 (1985), rev'd on other grounds.

[236] Ibid; also Koppel, "Crime and Punishment."

[237] Koppel, "Crime and Punishment."

[238] Dwyer, "Testing the Rush"; Perske, Unequal Justice, p. 55; Hourhian, "Earl Washington's Confession," p. 1502.

[239] When reporters asked him why he had volunteered so many details to the police, Washington struggled to find words:

Reporter:               Why did you tell them she was black?

Washington:         I don't know. I didn't--I didn't see a picture of her in the newspaper where she got killed or  nothing. I just

figured she was black.

Reporter:               You figured she was black?

Washington:         Yes, sir. Reporter:               Without knowing what her color was? Washington:         Yes, sir. Reporter:               Do you normally tell people things you think they want to hear? Washington:         At times, yes, sir. Reporter:               Do you? Why do you do that? Washington:         I don't know.

BBC interview with Washington, cited in Koppel, "Crime and Punishment."

[240] CNN, "Struggle."

[241] Koppell, "Crime and Punishment."

[242] Human Rights Watch telephone interview with Gerald Zerkin, attorney for Earl Washington, May 13, 1999.

[243]Washington v. Virginia, 323 S.E. 2d. 577 (Va. 1984), cert. denied, 471 US 1111 (1985), rev'd on other grounds.

[244]  Washington had type O blood while semen found at the crime scene contained type A.  Washington's trial lawyer had been unaware of this evidence and so never presented it at trial. McGlone, et al., "A Near-Fatal Justice."

[245] Ibid.

[246] CNN, "Struggle."

[247] General background information about Terry Williams from Human Rights Watch telephone interviews with Linda Tarlow, a former lawyer for Terry Williams, May 6, 1999 and October 6, 2000.

[248] Human Rights Watch interviews with Linda Tarlow.

[249] Frank Green, "Death Row Veteran's Life Spared," Richmond Times Dispatch, November 15, 2000.

[250] Brooke Masters, "Deal Gets Inmate off Death Row; U.S. High Court Intervened, citing Virginia Man's Deplorable Defense." Washington Post, November 15, 2000.

[251] Human Rights Watch interviews with Linda Tarlow.

[252] Masters, "Deal."

[253] Human Rights Watch interviews with Linda Tarlow.

[254] Ibid.

[255] Human Rights Watch telephone interview with Dinah S. Leventhal, lawyer for Terry Williams, January 2, 2001.

[256]  20/20, ABC News, "An Innocent Man - Retarded Man Wrongfully Imprisoned," March 3, 1995.

[257] Perske, Unequal Justice, p. 44, citing Wilson v. Missouri, Appellant's Reply Brief, Supreme Court of Missouri, Case No. 73285, pp. 10-12.

[258] Robert P. Sigman, "Victim Of  'A Horrible Injustice'; So Far, Attempts To Help Johnny Lee Wilson Have Failed," Kansas City Star, June 4, 1995.  The article reproduces extensive portions of the interrogation transcript.

[259] Interestingly, police found a stun gun at the crime scene. When they confronted Wilson with the stun gun, he had no reaction, and seemed bewildered. When police asked him to tell them what the stun gun was for, he suggested that it might be an electric razor. See Perske, Unequal Justice, p. 46.

[260] Although confessions are notoriously unreliable, juries and judges tend to find them extremely damning, and convict even when there is no evidence to corroborate the confession. See generally Peter Brooks, Troubling Confessions (Chicago: University of Chicago Press, 2000).

[261] See dissent by Judge Blackmar in Wilson v. State, 813 S.W.2d 833, 846 (Ma. 1991): "The transcript raises substantial questions about whether the plea was voluntarily and intelligently made. When asked why he was pleading guilty, the movant twice replied, 'I don't know.' When the judge responded at some length that these responses were not adequate the movant replied, 'I don't understand what you're saying.' At this point many judges would have suggested that the proceedings be suspended so that the movant could consult with counsel. This judge, however, kept the movant on the carpet and asked a long seriesof questions, almost all calling for yes or no answers."

[262] See Wilson v. State, 813 S.W.2d 833, 846 (Mo. 1991).

[263] Human Rights Watch interview with Sean O'Brien, April 29, 1999.

[264] Perske, Unequal Justice, p. 44-48.

[265]Wilson v. Lawrence County, 154 F.3d 757, 759, (8th Cir.1998).  Gov. Mel Carnahan also said, "As a result of an intense investigation conducted by my office, I have decided to issue a pardon to Johnny Lee Wilson because it is clear he did not commit the crime for which he has been incarcerated."

[266]"Wrongful Incarceration," National Law Journal, September 7, 1998.