III. CAPITAL PUNISHMENT AND MENTAL RETARDATION: LEGAL STANDARDS
The cornerstone of human rights is respect for the inherent dignity of all human beings and the inviolability of the human person.54 These principles cannot be squared with the death penalty, a form of punishment unique in its cruelty and finality, and a punishment inevitably and universally plagued with arbitrariness, prejudice, and error.
Recognition that the death penalty violates basic human rights has fueled a growing movement to abolish capital punishment around the world. Members of the European Union, for example, are united in their opposition to the death penalty in all circumstances, considering it an "inhuman, medieval form of punishment and as unworthy of modern societies."55 Out of the world's nearly 200 countries, 108 have rejected judicial executions in law or practice. 56 Less than thirty carry out executions in any given year. Although the International Covenant on Civil and Political Rights (ICCPR) does not outlaw capital punishment outright, it specifically prohibits cruel and inhuman punishment and arbitrary executions, and limits capital punishment to "the most serious crimes." Forty-one countries have signed a Second Optional Protocol to the ICCPR by which they agree not to execute anyone and to take the necessary steps to abolish the death penalty.57
The practice of executing people of diminished culpability -- including people with mental retardation -- is particularly abhorrent. In recent years, the U.N. special rapporteur on extrajudicial, summary or arbitrary executions has received reports of the execution of people with mental retardation in only three countries -- Japan, Kyrgyztan, and the United States.58
Authoritative interpretations and applications of the ICCPR have established that respect for basic human rights precludes judicial killing of offenders with mental retardation. Thus, for example, a 1989 United Nations Economic and Social Council (ECOSOC) resolution recommended "eliminating the death penalty for persons suffering from mental retardation or extremely limited mental competence."59 The U.N. Commission on Human Rights adopted resolutions in 1999 and 2000 urging states that retain the death penalty not to impose it "on a person suffering from any form of mental disorder," a term that includes both the mentally ill and the mentally retarded.60
The U.N. special rapporteur on extrajudicial, summary, or arbitrary executions has repeatedly criticized the practice of imposing the death penalty on mentally retarded offenders. In 1998, for example, he criticized the United States for executing people with mental retardation in contravention of relevant international standards.61 In his report, he stated:
The special rapporteur's most recent report urged governments that continue to enforce death penalties "to take immediate steps to bring their domestic legislation and legal practice into line with international standards prohibiting the imposition of death sentences in regard to minors and mentally ill or handicapped persons."63
In 1992, the United States became a party to the ICCPR. It entered a reservation to the treaty, however, asserting its authority to use capital punishment to the extent permitted under the U.S. Constitution. The U.S. did agree, however, that it would not execute pregnant women, as prohibited by the ICCPR.
U.S. constitutional law permits the execution of offenders with mental retardation. In the 1989 case of Penry v. Lynaugh, the U.S. Supreme Court reviewed the constitutionality of the death sentence of Johnny Paul Penry, a man with mental retardation who was convicted of raping, beating, and fatally stabbing a young woman in Texas. A sharply divided court decided that the execution of persons with mental retardation did not constitute cruel and unusual punishment as prohibited by the Eighth Amendment to the U.S. Constitution.64 The court reversed Penry's death sentence, however, and ordered a new trial because the judge's instructions to the jury had not permitted it to "consider and give effect to the mitigating evidence of Penry's mental retardation and abused background by declining to impose the death penalty."65
In deciding on the constitutionality of applying the death penalty to persons with mental retardation, Supreme Court Justice Sandra Day O'Connor, writing for the majority, noted that the Eighth Amendment prohibits punishments that were prohibited historically as well as those that run counter to "evolving standards of decency that mark the progress of a maturing society."66 Looking primarily to the "objective evidence" of federal and state legislation to ascertain how the nation viewed the execution of persons with mental retardation, Justice O'Connor concluded that "the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 states that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus" against such executions. 67 Justice O'Connor also ruled there was insufficient evidence that all persons with mental retardation lack the capacity to act with the degree of culpability associated with the death penalty. 68
In a separate opinion, Justice Brennan concurred with Justice O'Connor's analysis of the constitutional flaws in the Penry jury's sentencing instructions, but he strongly dissented from her reasoning and conclusion on the broader question of the constitutionality of executing persons with mental retardation. Justice Brennan argued that all persons with mental retardation, by definition, have significant limitations on their intellectual abilities and a reduced ability to function in society. He concluded, "The impairment of a mentally retarded offender's reasoning abilities, control over impulsive behavior, and moral development in my view limits his or her culpability so that, whatever other punishment might be appropriate, the ultimate penalty of death is always and necessarily disproportionate to his or her blameworthiness and hence is unconstitutional."69 Justice Brennan also insisted that the consideration of mental retardation as a mitigating factor in sentencing is inadequate to guarantee that a person " who is not fully blameworthy for his or her crime because of a mental disability does not receive the death penalty."70
Justice Brennan argued in addition that the execution of offenders with mental retardation violates the Eighth Amendment because such executions do not measurably further the penal goals of either retribution or deterrence. He reasoned that retribution is not furthered because the death penalty is disproportionate to the culpability of persons with mental disabilities; and, deterrence cannot be furthered because the intellectual impairments of persons with mental retardation preclude their ability to weigh the possibility of the death penalty in calculating different courses of action. As a result, "the execution of mentally retarded individuals is `nothing more than the purposeless and needless imposition of pain and suffering.'"71
Since the Penry decision, the number of death penalty states barring the execution of persons with mental retardation has grown to thirteen. 72 (Twelve states prohibit the death penalty for all persons, regardless of mental ability).73 The U.S. Congress has also prohibited application of the death penalty to federal defendants with mental retardation.74 Efforts to secure legislation to prohibit the execution of the mentally retarded are currently underway in several additional states, including Florida, Missouri, Nevada, North Carolina, Oklahoma and Texas. Public opinion against executing persons with mental retardation is strong: polls show upwards of 60 percent consistently opposed to such executions.75
Today, the two oldest and largest professional organizations working in the area of mental retardation, the Arc and the American Association on Mental Retardation, oppose the execution of persons with mental retardation, as do numerous other mental disability groups.76 The Arc summarizes its position as follows: "Existing case-by-case determinations of competence to stand trial, criminal responsibility, and mitigating factors at sentencing have proved insufficient to protect the rights of individuals with mental retardation. The presence of mental retardation by definition raises so many possibilities of miscommunication, misinformation, and an inadequate defense that the imposition of the death penalty is unacceptable."77The American Bar Association in 1989 adopted a recommendation opposing the execution of persons with mental retardation and calling for legislation banning such executions.78
All state-sponsored killings are abhorrent. In addition to all of the reasons for abolishing the death penalty completely, there are at least four justifications for specific legislative prohibitions against the execution of persons with mental retardation: 1) capital trials of the mentally retarded have an even higher than normal risk of the miscarriage of justice; 2) the death penalty is disproportionately severe punishment, and hence unjustifiably cruel, when levied on persons whose mental disability limits their moral culpability; 3) the case by case sentencing process does not ensure that persons with mental retardation will be spared capital punishment; and 4) subjecting the mentally retarded to state-sponsored killing is not necessary to advance the purposes ostensibly served by the death penalty. These justifications are explored in the following chapters.
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.