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?
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.
In keeping with international human rights standards, Human Rights Watch opposes capital punishment in all circumstances as inherently cruel and as a violation of the right to life and of the fundamental dignity all human beings possess. Executing offenders who have mental retardation is particularly unconscionable. In 1999 and 2000, the U.N. Commission on Human Rights adopted resolutions urging nations with 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 people with mental retardation.5 The United States may be the only constitutional democracy whose law expressly permits the execution of persons whose cognitive development has been limited by mental retardation and that carries out such executions.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.
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."The arbitrariness, unfairness and high risk of error in capital prosecutions in the United States has been documented extensively. The risk of a miscarriage of justice is especially acute for poor defendants, who are often represented by inexperienced, badly paid, overworked court-appointed attorneys unable or unwilling to mount an effective defense.6 Like the vast majority of prisoners on death row, most -- if not all -- of the persons with mental retardation who have been sentenced to death are poor.
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.
Defendants with mental retardation are uniquely disadvantaged in their ability to contribute to their own defense; indeed, even those with the good fortune to have competent attorneys often unknowingly undermine their own interests. Their unreliable memories and suggestibility impede their ability to help their lawyers develop the facts of the case. Unable to understand the proceedings, they may alienate juries by smiling, sleeping, or staring in court, giving a false impression of callousness or lack of remorse. And, as people with mental retardation are often ashamed of their limitations, some seek to hide their condition from their lawyers, not understanding that mental retardation is relevant to their defense.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.
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.
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.To Police Investigators:
· 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.To Prosecutors:
· Become familiar with the characteristics of persons with mental retardation.To Defense Counsel:
· Become familiar with the characteristics of persons with mental retardation, and pay special attention to any indication that a client may have this disability.To Judges:
· Keep an up-to-date list of local agencies able to provide information and assistance when questions arise about defendants with mental retardation.To Governors and Other Clemency Authorities:
· 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.To Mental Health Professionals Working in the Criminal Justice System:
· 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.To Mental Health Professionals and Experts in Mental Retardation Working outside of the Criminal Justice System:
· Develop outreach programs to educate criminal justice professionals about mental retardation.1Editorial, November 22, 1998, commenting on the case of Johnny Paul Penry.
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).