The Death Penalty and Mental Retardation

By Allison M. Foerschner
2010, Vol. 2 No. 09 | pg. 1/3 |

Should convicted criminals who are legally declared as mentally ill be excused from the death penalty?

In 1981, Ricky Rector of Conway, Arkansas went on a shooting spree that resulted in the death of one man and the injury of two bystanders. Ricky also shot and killed Officer Bob Martin, who had gone to the home of Rector’s mother after Ricky agreed to surrender. In 1982, the mentally retarded thirty-six-year-old was sentenced to death for his crimes. In a revealing glimpse of his limited mental capacity, Rector set aside the piece of pecan pie that came with his last meal, announcing that he wanted to save it to eat for after his 1992 execution.

There have been many cases like Ricky Rector’s that have prompted an intense debate over the constitutionality and, furthermore, the moral implications of executing mentally retarded convicted criminals. Arguments that such individuals should be exempt from the death penalty claim that the mentally retarded are not fully culpable for their actions, cannot actively participate in their own defense, and cannot fully understand the true nature of the punishment. As a result, the death penalty’s main functions of retribution and deterrence would not be applicable. Counterarguments declare that a blanket exemption would lead to a deluge of appeals from death row inmates falsely claiming to be mentally retarded, that convicted criminals who have acted heinously enough to be eligible for the death penalty might end up serving lesser punishments or even someday could be released back into the general population, and that excusing convicted criminals solely based on their IQ scores would be a grave miscarriage of justice. 

With two landmark cases addressing the debate and twenty of the thirty-eight death penalty states still allowing mentally retarded criminals to be executed, this issue is far from being resolved. It remains on the minds of Americans because it concerns a vital aspect of American life—the legal system. This social problem is also significant because it requires Americans to closely examine their beliefs and obligations as moral beings who can greatly affect and the lives of their fellow citizens. So, should all convicted criminals who are legally declared to be mentally retarded be excused from the death penalty?

Mental retardation pervades all aspects of the impaired individual’s life and, at its most profound level, is completely debilitating. Professional diagnosis is composed of four stages. First, the individual’s IQ score is assessed. Second, his/her adaptive skills are measured, identifying their strengths and weaknesses. Third, the age at which the condition first appeared is determined. Fourth, the collective results of the assessments along with the age of onset are evaluated against three criteria necessary for a diagnosis of mental retardation: 1) intellectual functioning is below average—an IQ score of 70 to 75 or lower, 2) “consequential limitations exist in several or many crucial areas of adaptive skill: two or more of the ten applicable areas including communication, self-care, home living, social skills, community use, self direction, health and safety, functional academics, leisure, and work” and 3) the onset of the disability arises during the developmental period, before the age of eighteen (Snell 9696). 

Once a diagnosis of mental retardation has been made, the impaired individual’s condition can be placed in one of four to five categories of severity depending on his/her IQ score. Mild retardation includes those with an IQ score of 50-55 to 70-75. The mildly retarded have an estimated mental age equivalent to that of an eight- to twelve-year-old normal functioning child. Their ability is fluent by adolescence, their reading and arithmetic skills remain between first and sixth grade levels, and they are generally able to live and work independently. Moderate retardation includes those with an IQ score of 35-40 to 50-55. Moderately retarded individuals possess the mental age of a six- to eight-year-old child. Their language ability is functional by adolescence, although practical reading and arithmetic abilities are not attained, and they require some supervision in everyday living. Severe retardation is marked by an IQ score of 20-25 to 35-40. The severely retarded have the mental age of a four- to six-year-old normal functioning child, limited language ability, no academic skills, and require extensive supervision. The most debilitating category of this disability is profound retardation, which includes those with an IQ score below 20-25. Profoundly retarded individuals possess the mental age of a zero- to four-year-old normal functioning child. Their language ability is limited to, at most, single words; they have no academic skills, and require constant supervision. Sometimes a category of “borderline retardation” is observed, which includes those with IQ scores between 70-75 and 85 (Snell 9698). Although those who are considered borderline are not technically mentally retarded, they do suffer from significant cognitive impairments.  

Those living with mental retardation are confronted by great obstacles, but most can still lead meaningful and fulfilling lives with the aid of a support network. This unfortunately was not the case for many mentally retarded individuals who faced living on their own when they were forced out of assisted living facilities by various legal decisions as well as the deinstitutionalization movement of the 1960s. With the advent of new psychotropic medications, many believed that all debilitating mental conditions would be found to have a biological basis that could be cured with prescriptions. It was thought that community mental health facilities would be in place to help released patients successfully adjust to independent living. This expectation was never fully realized though. Compounding this problem, the 1982 Youngberg v. Romeo decision stated that mentally disabled patients must receive the following in their institutional care: “1. Reasonable care and safety, 2. Freedom from bodily restraints, 3. Adequate food, shelter, clothing, and medical care, 4. Those liberty interests to which convicted criminals are entitled, and 5. Adequate training or habilitation to ensure the enjoyment of liberty” (French). Many states could not afford the expense of maintaining their state schools and psychiatric hospitals under these provisions, and were forced to release large numbers of their mentally retarded occupants into communities ill-prepared to handle their care. The impact of deinstitutionalization and the Youngberg decision led many mentally retarded individuals to break the law with no network of supporters to guide them. Youngberg v. Romeo was not the only case that affected the legal fate of the mentally retarded. 

In City of Cleburne v. Cleburne Living Center (1985), the Court ruled that mental retardation is not a quasi-suspect class, and therefore “does not warrant special legal rights beyond those afforded all citizens under the Equal Protection Clause of the Fourteenth Amendment” (French). Consequently, mental retardation was changed from a clinical syndrome in Axis I of the DSM, or Diagnostic Statistical Manual of Mental Disorders, to a classification as an Axis II disorder. As a result of this move, mentally retarded inmates became death penalty-qualified, as Axis II disorders were not believed to be significant enough to supersede aggravating circumstances. This change in legality was seen in the first of two landmark cases involving mentally retarded criminals and the death penalty, Penry v. Lynaugh. 

John Paul Penry, brain damaged from birth, experienced extreme abuse during childhood that exacerbated his mental condition. Penry’s mother brutally beat him, breaking his arms, dipping him in scalding water, and burning him with cigarettes. She often locked him in his room without food, water, or sanitary facilities for twelve to fourteen hours at a time and then beat him when he could not help but relieve himself in his room, many times forcing him to eat his own feces and drink his urine (Fellner). Penry dropped out of school during first grade, and as an adult his mental age was equivalent to that of an average six-and-a-half-year-old--his IQ measuring at a score between 50 and 63, and categorizing his mental retardation as mild to moderate (Weier 45).

In 1979, twenty-two-year-old Penry was convicted and found guilty of raping, beating, and stabbing Pamela Mosely Carpenter to death with a pair of scissors in Livingston, Texas. A psychiatrist testified during Penry’s competency hearing that Penry scored at an IQ of 54, pointed out his equivalent mental age, and claimed that he possessed the social maturity of an average nine- to ten-year-old. Penry’s lawyers followed these arguments with an appeal to the court that there was “an emerging national consensus against executing the retarded,” but Justice O’Connor, in writing for the five-person majority, found that Penry was competent enough to stand trial, consult rationally with his defense, and understand the proceedings against him (Weier 45). She also noted that there was no evidence of a national consensus against imposing the death penalty on mentally retarded criminals. In addition, the Supreme Court ruled that Penry’s Eighth Amendment right was violated because the jury was not informed that they could consider mental retardation as a mitigating factor during sentencing, and, in 1990, Texas retried Penry. He was again found guilty and received the death penalty. 

In 2000, Penry appealed to the Supreme Court, arguing that his Fifth Amendment right was violated when a portion of an old psychiatric report was used in his 1990 retrial. During a 1977 trial in which Penry was arrested in connection with another rape, the state provided Penry with a psychiatrist to determine Penry’s competency. In Penry’s 2000 appeal, he argued that the psychiatrist was an “agent of the state,” and the prosecution’s use of the report during the 1990 retrial violated his right against self-incrimination. Penry also claimed that jury instructions were again inadequate (Weier 46). In 2001, the Supreme Court, in Penry v. Johnson, found that Penry’s Fifth Amendment right was not violated, but sent the case back to trial courts because, once again, the jury was not given appropriate instructions during sentencing about how to consider mental retardation as a mitigating factor. It was at this time that the second of the landmark cases, Atkins v. Virginia, garnered national attention.  

Daryl Atkins failed and was forced to repeat the second grade. Through eighth grade he received mainly Ds and Fs, and even though he did not meet the requirements to enter high school, he was placed in ninth grade where he continued to make poor marks. His performance improved once he was placed in classes for “slow learners,” but he still left high school without graduating. Atkins began exhibiting serious behavioral problems at the age of 13, when he was convicted of breaking-and-entering and petty larceny. In eighth grade he began abusing drugs, and at 17, Atkins was convicted of two counts of grand larceny. Later, he participated in two armed robberies, and two weeks before the murder for which he stood trial, Atkins attacked a woman and shot her in the stomach (Mossman). 

At the age of 18, Daryl Atkins was not capable of doing laundry or cooking his own meals, but he participated with William Jones in the 1996 armed robbery, abduction, and fatal shooting of Langley Air Force Base airman, Eric Nesbitt. At Daryl Atkins’ trial, each man accused the other of killing Nesbitt, and Atkins was ultimately convicted of capital murder. During the trial’s penalty phase, a psychologist presented information about Atkins that he had obtained from acquaintances, pointed to his poor school and criminal records, and testified that Atkins tested at an IQ score of 59, qualifying him as mildly mentally retarded. Despite this testimony, Atkins was sentenced to death by two Virginia juries. Atkins’ lawyers appealed the death sentence on the grounds that Atkins was mentally retarded, but referencing the 1989 ruling in Penry v. Lynaugh, the Virginia State Court rejected the argument. 

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