Should a civilized society levy its most extreme punishment against someone who cannot fully understand it? Against someone who could not help his own lawyers defend him? Against someone who may have confessed to "help out" the police, not realizing he's just helped himself to the death chamber?

--Dallas Morning News¹

Since the death penalty was reinstated in 1976, at least thirty-five people with mental retardation have been executed in the United States.² The exact number of people with this disability who are on death row awaiting execution is not known; experts believe there may be two or three hundred. Because of their mental retardation, these men and women cannot understand fully what they did wrong and many cannot even comprehend the punishment that awaits them. While they have the bodies of adults, in crucial ways their mental function is more like that of children. Twenty-five states, nevertheless, permit capital punishment for offenders with mental retardation. The U.S. Supreme Court has ruled that the execution of persons with mental retardation is not cruel and unusual punishment prohibited by the Eighth Amendment to the U.S. Constitution.

In recent years, a growing public revulsion against executing persons with mental retardation has emerged in opinion surveys and political initiatives. Polls consistently show that a clear majority of American people -- including many who support the death penalty -- believe it is wrong to subject those with mental retardation to the ultimate state-sanctioned punishment.³ Thirteen states and the federal government have passed legislation prohibiting the execution of offenders with mental retardation and, as of February this year, efforts are underway in seven states to obtain similar legislation.⁴

The case of Johnny Paul Penry exemplifies for many Americans the injustice of imposing capital punishment on persons with mental retardation and the failure of the U.S. legal system to recognize their unique vulnerabilities.

A difficult breach birth left Johnny Paul Penry with organic brain damage, which was compounded during infancy and early childhood by his mother's brutal beatings. A paranoid schizophrenic herself, she hit her son on the head, broke his arms several times, dipped him in scalding water, burned him with cigarette butts, and forced him to eat his own feces and drink urine. She routinely locked him in his room without food, water, or sanitary facilities for twelve to fourteen hours at a time, then beat him when he could not help defecating in his room.

Johnny Paul Penry dropped out of first grade, and as an adult his mental age is still comparable to the average six and a half-year-old child. His I.Q. has been measured between 50 and the low sixties. (The average I.Q. is 100). His aunt spent a year just trying to teach him to sign his name.

In 1979, Penry was accused of the murder of Pamela Mosely Carpenter in Livingston, Texas, and he confessed to the police. Although he could not read or write, name the days of the week or months of the year, count to one hundred, say how many nickels are in a dime, or name the President of the United States, Penry was sentenced to death by a Texas jury. Ruling on Penry's appeal, the U. S. Supreme Court held in 1989 that the U.S. Constitution did not prohibit the execution of persons with mental retardation. It overturned Penry's sentence and ordered a retrial, however, because the jury's instructions did not permit it to give effect to the mitigating evidence of Penry's mental retardation and childhood abuse. At Penry's second trial, the judge presented the jury with essentially the same flawed sentencing instructions as at the first trial and Penry was sentenced to death once more. The Supreme Court has stayed his execution pending consideration of his appeal. Oral argument in his case is scheduled for March 27, 2001.

Even most supporters of capital punishment recognize that the ultimate penalty loses whatever moral legitimacy it may have if it is levied on people with mental retardation. The death penalty is supposed to be restricted to those few criminals who are guilty of the worst crimes of violence and who are the most blameworthy. But persons with mental retardation, by virtue of their disability, do not qualify as among the most culpable offenders. They have a lifelong limited ability to reason and to navigate in the world. They have grave difficulties with communication, learning, logic, strategic thinking and planning. They have problems with judgment, memory, attention, and with understanding consequences or abstract concepts. Whatever their degree of retardation, they have difficulty learning from experience and understanding causality. In all these respects they differ, crucially, from adults who do not have their disability.

A few people with mental retardation will commit acts of terrible violence. None, however, is capable of mature, calculated evil. Accountability can be achieved, and public safety protected, without putting offenders with mental retardation to death. Indeed, none of the penological goals set forth by death-penalty proponents requires the execution of offenders with mental retardation.

· Because the death penalty is disproportionately severe given the diminished culpability of those who have mental retardation, it does not serve the goal of retribution and the imposition of "just deserts."

· Such executions do not necessarily deter others from committing capital crimes. Persons with mental retardation are not deterred, because their disability prevents them from assessing potential outcomes from different courses of action. And excluding the mentally retarded from execution would not reduce whatever deterrent effect the death penalty may have for potential offenders who do not have mental disabilities: they would remain at risk of execution.

· To ensure public safety, it is sufficient that dangerous mentally retarded persons be securely confined; state-sanctioned executions are not necessary to "incapacitate" them.

Moreover, offenders with mental retardation are additionally and deeply vulnerable in capital trials because their disability makes it hard for them to comprehend abstract legal concepts or to assist in their own defense. Indeed, from the moment of arrest a suspect with mental retardation is likely to relinquish key legal protections. Being characteristically suggestible and eager to please persons in authority, and unable to cope with stressful situations, many detainees with mental retardation waive their right to remain silent; some even make false confessions.

Earl Washington, a former farmhand from Culpepper, Virginia, is a man with mental retardation whose I.Q. has been assessed variously at 57 and 69. He knows "some" but not all of the letters of the alphabet. He is eager to please, easily suggestible, easily confused.

In 1983, Washington was questioned by police after he was arrested for a minor assault. During his lengthy interrogation he confessed to various crimes, including the 1982 rape and murder of a young woman, Rebecca Williams. The police concluded that most of his other "confessions" were false, but on the basis of a confession that had been full of factual errors, Washington was prosecuted in the Williams case. Despite his mental retardation, the trial court found that he had voluntarily waived his right to remain silent and that his confession was valid. After a three-day trial, he was sentenced to death. The jurors later said they had placed great weight on his confession in deciding to convict.

A series of DNA tests ultimately proved that Earl Washington was innocent of the murder that brought him within days of execution. In October 2000, Gov. Jim Gilmore of Virginia pardoned Washington. He was released from prison on February 12, 2001.

The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment. This has been interpreted to include punishment that is disproportionate to the gravity of the offense and the defendant's moral culpability, and imposes purposeless pain and suffering. In 1984, the U.S. Supreme Court held that executing the insane violates the Eighth Amendment because they are incapable of fully comprehending their crimes or why they are being punished. Similarly, in 1988, the court held that the Eighth Amendment forbids imposing a death sentence on someone for a crime he or she committed before the age of sixteen. The court recognized that because children have less ability to control their impulses, are more easily influenced by others, and have less ability to understand abstract moral and intellectual concepts than adults, they cannot be deemed to act with the degree of culpability that can justify the ultimate penalty of death.

In the 1989 case of Penry v. Lynaugh, however, the Supreme Court failed to extend this reasoning to protect offenders with mental retardation. At the time, only two states had legislation expressly excluding persons with mental retardation from the death penalty. Citing "insufficient proof of a national consensus against executing mentally retarded people convicted of capital offenses,"⁷ the sharply divided court refused to create a constitutional prohibition on such executions. The court ruled, however, that juries must be able to consider retardation as a possible mitigating factor in sentencing.

In practice, offenders with mental retardation are sentenced to death even when juries consider their mental impairment as a mitigating factor. Prosecutors confronting murders that have inflamed the local community often seek the death penalty regardless of whether the accused has a mental disability. Many prosecutors are genuinely unaware of the nature of mental retardation; others refuse to accept its full significance and its effect on culpability. Sentencers -- in most cases juries -- all too often agree with the prosecutors' insistence that the death penalty is warranted despite evidence of mental retardation.

With this report, Human Rights Watch seeks to support efforts to end the senseless cruelty of executing adults whose minds function like those of children. We do not attempt to offer a comprehensive analysis of the practical and doctrinal issues presented by the criminal prosecution of defendants with mental disabilities, or even of such prosecutions in capital cases. Rather, this report sets forth a few of the compelling arguments against imposing capital punishment on persons with mental retardation. We present some of the attributes of mental retardation, highlight some of the unique vulnerabilities that persons with this disability have when they encounter the U.S. criminal justice system, and tell the stories of some of the people with mental retardation who have been caught up in what the late Supreme Court Justice Harry Blackmun famously termed "the machinery of death."

Some of the people profiled in this report have committed terrible crimes; others were innocent, including some who made false confessions to the police. Although their degree of retardation varies, they all share a childlike inability to fully understand and competently navigate the world. The Supreme Court ruled, in Penry, that the nation's "standard of decency" had not evolved sufficiently to warrant a constitutional ban on executing people such as these -- a sad commentary on a nation that holds itself up as a champion of human rights, but perhaps an impetus to make the changes that decency requires.

Recommendations

Until capital punishment is completely abolished in the United States, offenders with mental retardation should be exempted from a sentence of death or execution. All participants in the criminal justice system should use their authority, expertise, and discretion to ensure capital punishment is not levied on persons whose cognitive, social, and moral development has been limited by mental retardation.

To State Legislatures:

· Adopt legislation prohibiting the imposition of death sentences against or execution of people with mental retardation. Such legislation should ensure that all defendants charged with capital crimes are psychologically assessed to determine whether they suffer from mental retardation or other mental disabilities; lay out pre-trial procedures for adjudicating disputed claims of mental retardation; and permit capital defendants to raise the issue of mental retardation at any time prior to sentencing and/or execution.

· Strengthen laws and procedures to ensure that all capital defendants have competent, experienced counsel. In particular, take steps to ensure that defendants with mental retardation are represented by counsel with experience in representing people with this disability.

· Create a legislative presumption against the validity of waivers of "Miranda" rights -- the right to remain silent and the right to an have attorney present during questioning -- by suspects who have mental retardation and who confess without benefit of the advice of counsel.

· Ensure that indigent defendants with mental retardation have access to free and adequate counsel in all post-conviction proceedings as well as during their initial trials.

· Allocate adequate funds to enable defense teams working with capital defendants to investigate their clients' mental health status and obtain comprehensive psychological tests.

· To ensure fairness, continually and conscientiously monitor the process for imposing death sentences in all capital cases.

· Implement training and sensitivity programs for police officers who may come into contact with people who have mental retardation in the course of their duties. Training should include information on how to identify mental retardation and on special accommodations that should be made to respect the rights of people with this disability.

· Develop, adapt and follow special protocols for police interrogations of people with mental retardation. Ensure that an individual being questioned truly understands his or her Miranda rights and recognize that "yes" or "no" answers may not indicate genuine comprehension of complex issues such as rights and waivers.

· Become familiar with the characteristics of persons with mental retardation.

· Participate in the identification of mentally retarded people caught up in the criminal justice system and assist in ensuring respect for their rights.

· Give mental retardation appropriate mitigating weight in plea negotiations and sentencing requests. Refrain from seeking the death penalty for offenders with mental disabilities.

· Use as expert witnesses on the question of a defendant's mental retardation only professionals specially trained and experienced in the testing and diagnosis of mental retardation.

· Become familiar with the characteristics of persons with mental retardation, and pay special attention to any indication that a client may have this disability.

· Seek funds for and hire experts in the specialized field of mental retardation to evaluate clients and educate the court and jury about the special issues presented by a defendant with mental retardation.

· Ensure that all clients understand the significance and complexity of the criminal justice system by carefully explaining all aspects of the system and testing the client's understanding by asking questions. Should a client exhibit signs of difficulty or incomprehension, seek a comprehensive mental health examination by a qualified professional with expertise in mental retardation.

· When necessary, ensure that juries are made aware that unusual behavior -- such as smiling, sleeping, or staring in the courtroom -- is often a characteristic of people with mental retardationwho do not fully comprehend the nature and significance of legal proceedings, and not a sign of callousness or lack of remorse.

· Keep an up-to-date list of local agencies able to provide information and assistance when questions arise about defendants with mental retardation.

· Insist on mental health evaluations in all cases where there is any question of the defendant's cognitive abilities, including his or her ability to comprehend the proceedings or to assist in his or her own defense. Assist in ensuring that the funds necessary for such investigation and evaluation are provided to ensure that the defendant's right to an adequate defense is respected.

· Recognize that experts in mental retardation are needed to accurately evaluate and diagnose defendants who may have mental retardation. Ensure that experts for both sides possess the necessary qualifications, skills, and experiences to identify mental retardation.

· Take care to ensure that all capital defendants, especially those with mental retardation, are adequately represented by counsel experienced in capital cases. Appoint counsel promptly and allocate sufficient funds for investigation and mental health evaluation as needed for indigent defendants. Take steps to ensure that appointed counsel are experienced and knowledgeable about defending people with mental retardation.

· Carefully and conscientiously evaluate waivers of rights by defendants who may have mental retardation. Before reaching a finding on the validity of waivers, examine the defendant's ability to comprehend the full range of implications of waiver decisions. Be aware that "yes" and "no" answers may not indicate genuine understanding of complex concepts.

· Consider inherently suspect and undertake a particularly careful inquiry before accepting the validity of a waiver of the right against self-incrimination by a defendant with mental retardation who confessed without the advice of counsel.

· In sentencing, consider alternatives to prison for offenders with mental retardation, such as placement in specialized programs. When incarceration is required, the offender's mental disabilities should be taken into consideration and confinement should be in a safe, habilitative setting.

· Ensure that no offender with mental retardation is executed. Exercise legal authority to grant clemency and to commute the sentence of any capital defendant with mental retardation who had been sentenced to death.

· Support legislation to exempt persons with mental retardation from capital punishment.

· Become familiar with the characteristics of mental retardation. Assist in identifying defendants with mental retardation, and ensuring that they receive access to appropriate services. If necessary, seek assistance from professionals trained in identifying and evaluation claims of retardation.

· Develop outreach programs to educate criminal justice professionals about mental retardation.

²See 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.

³For 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.

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

⁵U.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.

⁶See 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.

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