People with mental retardation in the U.S., currently estimated to number between 6.2 and 7.5 million, have historically been victimized both by their disability and by public prejudice and ignorance.8 In recent decades there have been significant gains in understanding the nature of the condition, in the provision of education and other services that meet the unique needs of those who are mentally retarded, and in the willingness of the public to accord them the respect and rights they deserve as human beings and citizens. Nevertheless, misunderstanding of the unique nature and implications of mental retardation remains widespread. When a person with mental retardation confronts the criminal justice system, they are uniquely unable to take advantage of legal safeguards and to protect their constitutional rights.
Mental retardation is a lifelong condition of impaired or incomplete mental development. According to the most widely used definition of mental retardation, it is characterized by three criteria: significantly subaverage intellectual functioning; concurrent and related limitations in two or more adaptive skill areas; and manifestation before age eighteen.9 The first step for diagnosing and classifying a person as having mental retardation is for a qualified person to give one or more standardized intelligence tests and a standardized adaptive skills test on an individual basis.
Intelligence quotient (I.Q.) tests are designed to measure intellectual functioning. An I.Q. score provides a rough numerical assessment of an individual's present level of mental functioning in comparison with that of others. The vast majority of people in the United States have I.Q.s between 80 and 120, with an I.Q. of 100 considered average. To be diagnosed as having mental retardation, a person must have an I.Q. below 70-75, i.e. significantly below average. If a person scores below 70 on a properly administered and scored I.Q. test, he or she is in the bottom 2 percent of the American population10 and meets the first condition necessary to be defined as having mental retardation.
Although all persons with mental retardation have significantly impaired mental development, their intellectual level can vary considerably. An estimated 89 percent of all people with retardation have I.Q.s in the 51-70 range. An I.Q. in the 60 to 70 range is approximately the scholastic equivalent to the third grade.11
For the lay person or non-specialist, the significance of a low I.Q. is often best communicated through the imprecise but nonetheless descriptive reference to "mental age." When a person is said to have a mental age of six, this means he or she received the same number of correct responses on a standardized I.Q. test as the average six year old child.
The threshold I.Q. level for a diagnosis of mental retardation has been progressively lowered over the years, in part because of awareness of the damaging social prejudice suffered by those labeled "retarded." In 1959, the American Association on Mental Deficiency set 85 as the I.Q. below which a person was considered to be retarded.14 In 1992, the renamed American Association on Mental Retardation lowered the mental retardation "ceiling" to an I.Q. of 70-75,15 but many mental health specialists argue that people with I.Q.s of up to 80 may also have mental retardation. 16 Flexibility in the I.Q. standard is important because tests given at different times may show slight variations due to differences in the tests and because of testing error -- the standard error measurement on I.Q. tests is generally three to five points.
Mental retardation entails significant limitations in two or more of the basic skill areas necessary to cope with the requirements of everyday life, e.g. communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Although there are significant variations among those with mental retardation, in terms of their ability to function and their skill levels, all have significant limitations in their "effectiveness in meeting the standards of maturation, learning, personal independence, and/or social responsibility that are expected for his or her age level and cultural group."17 For instance, an adult with mental retardation may have trouble driving a car, following directions, participating in hobbies or work of any complexity, or behaving in socially appropriate ways. He or she may have trouble sitting or standing still, or may smile constantly and inappropriately. Limitations in everyday coping skills may be more or less severe, ranging from individuals who can live alone with intermittent support, to individuals who require extensive hands-on assistance and guidance, to individuals who require constant supervision and care. For most people with mental retardation, limited adaptive skills make ordinary life extremely difficult unless a caring family or social support system exists to provide assistance and structure.
Offenders with mental retardation who have been convicted of committing capital crimes typically grew up poor and without networks of special support and services -- often without even a supportive, loving family. They functioned as best they could without professional assistance, often required to fend for themselves while still teenagers. If they were able to work, it was at basic menial tasks.
Mental retardation is present from childhood. It can be caused by any condition which impairs development of the brain before, during, or after birth. The causes are numerous: hereditary factors; genetic abnormalities (e.g. Down's syndrome); poor prenatal care; infections during pregnancy; abnormal delivery; illness during infancy; toxic substances (e.g. consumption of alcohol by the pregnant mother; exposure of the child to lead, mercury or other environmental toxins); physical abuse; and malnutrition, among others. Regardless of the cause, part of the definition of mental retardation is that it manifests itself during an individual's developmental period, usually deemed to be birth through age eighteen. Many psychiatrists argue that the age before which signs of retardation must become manifest should be raised from eighteen to twenty-two, to reflect the difficulties in obtaining accurate age records for many people with this disability and the differing rates at which people develop.20
An ordinary adult cannot suddenly "become" mentally retarded. An adult may, for reasons related to accident or illness, suffer a catastrophic loss in intellectual functioning and adaptive skills, but this would not make him or her "mentally retarded," since by definition mental retardation starts during childhood. One implication of this is that mental retardation is virtually impossible for an adult to fake: when evaluating whether an adult is mentally retarded, testers look not only at I.Q. test results, but also at school reports, childhood test records, and other evidence that would show whether his or her intellectual and adaptive problems developed during childhood.
Early diagnosis can help the person with mental retardation obtain access to appropriate special education, training, clinical programs, and social services during important developmental years -- as well as through life. With help from family, social workers, teachers, and friends, many mentally retarded people succeed in simple jobs, maintain their own households, marry, and give birth to children of normal intelligence.21 But, although support and services can improve the life functioning and opportunities for a person with retardation, they cannot cure the condition. There is no "cure" for mental retardation.
Although mental retardation of any degree has profound implications for a person's cognitive and social development, it is a condition which in many cases is not readily apparent. While some of the mentally retarded, such as those whose retardation is caused by Down's syndrome or fetal alcohol syndrome, have characteristically distinctive facial features, most cannot be identified by their physical appearance alone. Unless their cognitive impairment is unusually severe (e.g. an I.Q. below 40), persons with mental retardation may be thought of as "slow" but the full extent of their impairment is often not readily appreciated, particularly by people who have limited contact with or knowledge of them, including police, prosecutors, judges, and other participants in the criminal justice system. Many capital offenders with mental retardation did not have their condition diagnosed until trial or during post-conviction proceedings.
A person with mental retardation, according to one expert, "is always the least smart person in any group. This leads to fear, dependence and an experience of terrible stigma and devaluation."22 Since mentally retarded people are often ashamed of their own retardation, they may go to great lengths to hide their retardation, fooling those with no expertise in the subject. They may wrap themselves in a "cloak of competence," hiding their disability even from those who want to help them, including their lawyers. 23 Overworked or incompetent lawyers may overlook evidence of retardation and fail to request a psychological evaluation or raise the issue during trial. At times, even competent lawyers who are anxious to help their clients may fail to identify their clients' retardation or may be unable to access funds for a psychological evaluation.
The fact that many people with mental retardation can and do live relatively "normal" lives with their families or in the community, coupled with the fact that most of them do not look different from people with average intellectual capabilities, can make it difficult for the public to appreciate the significance of their condition. But, as the late U.S. Supreme Court Justice Brennan noted, "`Every individual who has mental retardation' -- irrespective of his or her precise capacities or experiences -- `has a substantial disability in cognitive ability and adaptive behavior.'" 27 Like all human beings, people with mental retardation deserve to be treated with dignity and respect, and deserve the chance to live lives that are as normal as possible -- but they also require special acknowledgment of their vulnerabilities and their mental incapacities.
A person with mental retardation will have limitations of a greater or lesser extent in every aspect of cognitive functioning. He or she will have limited abilities to learn (including reading, writing, and arithmetic) and to reason, plan, understand, judge, and discriminate. Mental retardation truncates the capacity to think about intended actions, to consider their possible consequences, and to exercise restraint. One expert has summarized the attributes of mental retardation as follows:
Many of these limitations, of course, characterize children. But while children will outgrow these limitations as their brains develop and mature, people with mental retardation will not.
In limiting a person's cognitive development and ability to learn, mental retardation also limits the ability to understand abstract concepts, including moral concepts. While most defendants with mental retardation who have committed a crime know they have done something wrong, they often cannot explain why the act was wrong.
The inability to comprehend abstract concepts may include the inability to fully understand the meaning of "death" or "murder".
Since they often face abuse, taunts, and rejection because of their low intelligence, people with mental retardation can be desperate for approval and friendship. Eager to be accepted and eager to please, people with mental retardation are characteristically highly suggestible.
Low intelligence and limited adaptive skills also mean that people with mental retardation often miss social "cues" that other adults understand. Their inappropriate social responses can be misinterpreted by people who do not know they have mental retardation or who do not understand the nature of retardation. They may act in ways that seem suspicious, even when they have done nothing wrong. When questioned by police or other authority figures, they often smile inappropriately, fail to remain still when ordered to do so, or act agitated and furtive when they should be calm and polite. Others may fall asleep at the wrong moment.
The vast majority of people with mental retardation never break the law.36 Nevertheless, mentally retarded people may be disproportionately represented in America's prisons. Although people with mental retardation constitute somewhere between 2.5 and 3 percent of the U.S. population, experts estimate they may constitute between 2 and 10 percent of the prison population.37 The disproportionate number of persons with mental retardation in the incarcerated population most likely reflects the fact that people with this impairment who break the law are more likely to be caught, more likely to confess and be convicted, and less likely to be paroled. It may also be that some of the people with mental retardation who are serving prison sentences are innocent, but they confessed to crimes they did not commit because of their characteristic suggestibility and desire to please authority figures. See Section IV below.
As with people of normal intelligence, many factors can prompt people with mental retardation to commit crimes, including unique personal experiences, poverty, environmental influences and individual characteristics. Attributes common to mental retardation may, in particular cases, also contribute to criminal behavior. The very vulnerabilities that cause problems for people with mental retardation in the most routine daily interactions can, at times, lead to tragic violence.
Many people with mental retardation are picked upon, victimized and humiliated because of their disability. The desire for approval and acceptance and the need for protection can lead a person with mental retardation to do whatever others tell him. People with mental retardation can fall prey when people with greater intelligence decide to take advantage of them, and they become the unwitting tools of others.38 Many of the cases in which people with mental retardation have committed murder involved other participants -- who did not have mental retardation -- and/or occurred in the context of crimes, often robberies, that were planned or instigated by other people. As one expert in mental retardation has noted, "Most people with mental retardation don't act alone. They are usually dependent. They are never the ringleader or the leader of a gang." 39
People with mental retardation may also engage in criminal behavior because of their characteristically poor impulse control, difficulty with long-term thinking, and difficulty handling stressful and emotionally fraught situations. They may not be able to predict the consequences of their acts or resist a strong emotional response.42 The homicides committed by people with mental retardation acting alone are almost without exception unplanned, spur of the moment acts of violence in the context of panic, fear, or anger, often committed when another crime, such as a robbery, went wrong. For example, William Smith, I.Q. 65, tried to take money from "old Dan," a friendly elderly storekeeper he had known all his life. When Dan resisted, Smith panicked and lashed out, killing him.43
Low intellectual skills and limited planning capacities mean that people who have mental retardation are more likely than people of normal intelligence to get caught if they commit crimes. As a result, they make good "fall guys" for more sophisticated criminals. A suspect with mental retardation is also less likely to know how to avoid incriminating himself, hire a lawyer and negotiate a plea.
Many, if not most, of the people with mental retardation convicted of capital murder are doubly and triply disadvantaged. In general, America's prison population is made up disproportionately of poor people, minorities, the mentally ill, and those who were abused as children. Not surprisingly, the mentally retarded people who become enmeshed in the criminal justice system usually share one or more of these characteristics: many of them come from poor families, suffered from severe abuse as children, and/or face mental illness in addition to their retardation.44
A history of severe childhood abuse is particularly common among defendants with mental retardation convicted of capital murder. While the relationship between abuse and adult behavior is complex, "strong evidence exists that a person who was abused as a child is at risk of suffering long-term effects that may contribute to his violent behavior as an adult," particularly if the abuse was severe physical abuse that caused serious injury to the child.45 The long-term negative effects of childhood abuse may be even greater for people whose cognitive abilities are impaired and whose ability to navigate in the world is already seriously compromised by mental retardation.46
Many capital defendants with mental retardation also suffer from mental illness. Although the two conditions are often confused, they are different disorders. Mental illness almost always includes disturbance of some sort in emotional life; intellectual functioning may be intact, except where thinking breaks with reality (as in hallucinations). A person who is mentally ill, e.g. who is bipolar or suffers from schizophrenia, can have a very high I.Q., while a mentally retarded person always has a low I.Q. A person who is mentally ill may improve or be cured with therapy or medication, but mental retardation is a permanent state. Finally, mental illness may develop during any stage of life, while mental retardation is manifest by the age of eighteen. The percentage of mentally retarded people who are also mentally ill is not known with any certainty; estimates vary from 10 percent to 40 percent.51 Persons who suffer from both mental illness and mental retardation are particularly disadvantaged in dealing with the criminal justice system because each condition can compound the effects of the other.
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://126.96.36.199/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).
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.