Recent changes in social attitudes and the law have afforded individuals with mental retardation the opportunity to enjoy more complete lives. Notwithstanding this progress, the mentally retarded continue to experience "significant impairment, involving severe limitations in both cognition and adaptive functioning." (The ARC) People with mental retardation should not be exempt from prosecution, nor should their disability be considered as an excuse for criminal behavior. However, their cognitive limitations necessarily reduce their culpability and simple justice would require that the penalties imposed for their criminal acts be proportionate to their culpability. Moreover, for any mentally retarded defendant, there is so great a likelihood of "miscommunication, misinformation, and an inadequate defense that the imposition of the death penalty is unacceptable." (The ARC)

For the United States Supreme Court, determining whether or not the execution of persons with mental retardation is Constitutional turns on the analysis of whether or not it violates the 8th Amendment prohibition on cruel and unusual punishment. The Court has looked to "evolving standards of decency that mark the progress of a maturing society" to determine whether a punishment is cruel and unusual. In identifying these standards, the Supreme Court has noted the critical role of an evolving national consensus. In the 1989 Supreme Court case of Penry v Lynaugh, the Court held that it was not yet satisfied that there existed a national consensus condemning the execution of the mentally retarded . At that time, only two states - Georgia and Maryland - had legislation explicitly prohibiting the execution of the mentally retarded. However, the last ten years has seen a dramatic shift in national standards of decency. Of the thirty-eight states that permit the death penalty, thirteen have now outlawed the execution of people with mental retardation. Six more states - Florida, Missouri, North Carolina, Oregon, Arizona and Texas - are currently considering similar legislation. The actions of these numerous state legislatures constitute a strong "objective indicator of contemporary values" (Penry I, at 335) and demonstrate a growing national opposition to the execution of people with mental retardation.

In addition to the growing national consensus in the United States, the general practices, customs and developments in the international community further demonstrate an overwhelming rejection of capital punishment for people with mental retardation. The United States and Kyrgystan are the only two countries in the world that execute people with mental retardation reflecting an unmistakable movement to ban the execution of the mentally retarded (U.N. Commission on Human Rights, "Extrajudicial, summary or arbitrary executions: Report by the Special Rapporteur," E/CN.4/1997/60, para. 89 (1996)). The actions of the international community, and in particular the human rights organs within the United Nations, demonstrate that standards of decency have evolved to the point where the execution of people with mental retardation is no longer tolerable in a civilized society.

In 1971, the United Nations General Assembly adopted the Declaration on the Rights of Mentally Retarded Person, which states that if a person with mental retardation is prosecuted with an offence "he shall have the rights to due process of law with full recognition being given to his degree of mental responsibility." Further, the Declaration articulates that procedures which restrict the rights of the mentally retarded "must contain legal safeguards against every form of abuse." In 1989, the United Nations Economic and Social Council recommended protections for those facing the death penalty including, "eliminating the death penalty for persons suffering from mental retardation or extremely limited competence, whether at the stage of sentence or execution." In 1999, the Commission on Human Rights passed a resolution calling on states which maintain capital punishment "not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person." The Commission confirmed its position on the execution of persons with a mental disorder again in 2000. The Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution has consistently condemned the execution of people with mental retardation, with particular criticism of the United States. In 1998, the Special Rapporteur recommended that "governments that continue to enforce the death penalty are urged to take immediate steps to bring their domestic legislation and practices into line with international standards prohibiting the imposition of death sentence in regard to minors and mentally ill or handicapped persons."

When reviewing the evidence, state practice, with the conspicuous exception of the United States, has virtually eliminated executions of the mentally retarded. Disability organizations in the United States and throughout the world have demonstrated a strong opposition to such executions, and global and regional bodies have condemned the practice as "degrading the dignity and worth of the human person" (European Union clemency letter on behalf John Paul Penry, November 7, 2000).

Additional links and resources on executing persons with mental retardation:

• Revisiting Execution of the Retarded
  New York Times, April 4, 2001

• Executing Retarded People
  Washington Post, April 2, 2001

• Amnesty International Welcomes Supreme Court's Decision to Consider Whether Constitution Bars Executing the Mentally Retarded
  Press Release, March 27, 2001

• "High Court to Review Executing Retarded: Decision May Reflect Changes in State Laws on Mentally Disabled"
  Washington Post, March 27, 2001

• BEYOND REASON: The Death Penalty and Offenders with Mental Retardation
  March 2001 Report from Human Rights Watch

• Fact Sheet: What are the facts about the death penalty and people with mental retardation?
  From the American Association on Mental Retardation

• The Execution of People with Mental Retardation
  From The Arc [Association of Retarded Citizens]

• Mental Retardation and the Death Penalty
  From the Death Penalty Information Center

• Death Penalty Facts: MENTAL RETARDATION AND MENTAL ILLNESS
  Information from Amnesty International

• Resources from the National Mental Health Association

  • Borderline Mentally Retarded and Juvenile Offender Antonio Richardson Faces Execution In Missouri in Two Days
    Legislative Alert March, 2001

  • In Texas, Another Execution of a Convict with Mental Illness: The Criminalization of Mental Illness Continues Unabated
    Press Release June 28, 2000

• Resources from the National Alliance for the Mentally Ill

  • NAMI Appeals for Justice in Georgia Death Penalty Case: The state's own psychiatrists and the state itself already agree that, as a matter of law, Alexander William suffers from severe mental illness.
    Press Release August 22, 2000

  • No Death Penalty For Persons With Severe Mental Illnesses
    Executive Director's statement January 12, 1998

• Supreme Court to Decide Three Key Disability Cases
  Mental and Physical Disability Law Reporter, March 2001
  From the ABA Commission on Mental and Physical Disability Law

• Letter from the European Union in the John Paul Penry case, November 7, 2000

• Is death row any place for the mentally retarded?
  CNN, March 21, 2001

• DON'T EXECUTE THE MENTALLY RETARDED
  Chicago Tribune, August 10, 2000