---

Human Rights

Beyond Reason: Executing Persons with Mental Retardation

By Jamie Fellner

The U.S. Supreme Court's decision in March to hear the appeal of Ernest McCarver, McCarver v. North Carolina, No. 00-8727, a mentally retarded man sentenced to death for murdering a seventy-one-year-old cafeteria worker in North Carolina, stunned developmental disability and anti-death penalty advocates alike. McCarver is asking the Court to reconsider its decision in Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), which held that the execution of mentally retarded offenders is not cruel and unusual punishment prohibited by the Eighth Amendment. Hope has surged among anti-death penalty forces that the Court may overturn a decision that is incomprehensible to anyone familiar with mental retardation and its profound impact on cognitive and personal development.

At least thirty-five men with mental retardation have been executed in the United States since 1976, when the death penalty was reinstated. No one knows exactly how many of the 3,700 people currently on death row have such a disability. Expert estimates range from 2 to 10 percent. Some of those sentenced to death have been so mentally impaired they did not fully understand their fate. Before his execution in 1985 for rape and murder, Morris Mason, with his intelligence quotient (IQ) of 62 to 66, asked for advice on what to wear to his funeral.

Starting as I do from the premise that all state-sponsored executions violate basic human rights, it is difficult to say any one execution is worse than another. Yet there is something so intrinsically senseless and cruel about executing people with limited mental development that many death penalty supporters are appalled by the practice. The death penalty is ostensibly limited to the most blameworthy persons. Mentally retarded people, however, are incapable of mature, calculated evil; in crucial ways their minds function like those of children. Their mental impairment not only limits their moral culpability, it also renders them uniquely vulnerable to miscarriages of justice.

An Illustrative Case: Johnny Paul Penry

Johnny Paul Penry, the appellant in Penry I, has become something of an icon in the debate over executing the mentally retarded. Brain damaged from birth, Penry had mental impairments that were exacerbated by brutal treatment during his infancy and childhood. (Perhaps not surprisingly, severe physical abuse figures prominently in the childhoods of many of the men and women on death row, including some of those who are mentally retarded.) Penry's mother beat him, broke his arms, 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. Penry dropped out of first grade. As an adult his mental age is still comparable to the average six-and-a-half-year-old child. His IQ has been reliably measured in the fifties and low sixties. For comparative purposes, the average person's IQ in the United States is 100.

In 1979, Penry was convicted of the murder of Pamela Mosely Carpenter in Livingston, Texas. Although he could not read or write, name the days of the week or months of the year, count to 100, say how many nickels are in a dime, or name the president of the United States, he was sentenced to death by a Texas jury. In Penry I, the Supreme Court, although upholding the constitutionality of executing a person with mental retardation, nonetheless ordered a new trial because the jury's instructions did not permit it to give effect to the mitigating evidence of Penry's mental retardation and childhood abuse. Penry was retried, and once again convicted and sentenced to death. When the Court stayed his execution last November pending a ruling on his appeal, Penry asked whether he would still be able to eat his specially chosen last meal. On June 4, 2001, the Supreme Court once again overturned his death sentence on the ground that the jury's sentencing instructions remained constitutionally flawed. The 6-3 majority opinion, written by Justice O'Connor, focused narrowly on the jury instructions and gave no hint of how the court might rule in the McCarver case on the broader question of the constitutionality of executing people with extremely limited cognitive abilities.

Defining the Terms

Mental retardation is a lifelong condition of impaired mental development. According to the most widely used definition, it is characterized by three criteria: subaverage intellectual functioning (an IQ score of approximately seventy or below), limitations in the skills necessary for everyday life, and manifestation before the age of eighteen. The causes are numerous: heredity, genetic abnormalities (e.g., Down's syndrome), poor prenatal care, exposure to toxic substances, and physical abuse, among others. Although training and special services can improve the functioning and opportunities for people with retardation, there is no cure for the condition.

Many people with mental retardation also suffer from mental illness. Although the two conditions are often confused, they are very different. Unlike mental retardation, mental illness almost always includes emotional disturbances; it does not affect intelligence; intellectual functioning is usually intact (except where thinking breaks with reality, as in hallucinations); it may be ameliorated or cured with therapy or medication; and it may develop during any stage of life.

Most people with mental retardation are not so profoundly disabled that their condition is readily apparent; except in special cases such as Down's syndrome, they do not look different from anyone else. Many people who have cognitive impairments go to great lengths to mask them, wrapping themselves in a "cloak of competence." They may, for example, hide their inability to read or do basic math, working at menial jobs that do not require conceptual skills. As a result, defense lawyers often fail to realize their clients are retarded; when evidence of retardation is presented, prosecutors (and jurors, apparently) discount its significance. They see a defendant who is not manifestly "crazy," and they do not grasp the profound yet subtle ways a person with retardation is limited in his or her capacity to understand the world around him or her and to act appropriately.

Whatever the degree of retardation, all mentally retarded persons have a limited capacity for coping with life's challenges. They have grave difficulties with communication, learning, logic, strategic thinking, and planning. Their disability adversely affects their judgment, memory, and attention, as well as their capacity to understand abstract concepts. Their ability to exercise restraint and to weigh alternative courses of action is diminished. They have difficulty learning from experience and understanding cause-and-effect relationships. Persons with mental retardation, including those who commit acts of deadly violence, may be incapable of fully controlling their actions, comprehending the consequences of their conduct, or understanding its moral implications. With a limited capacity for making genuine choices about how to act-a limitation that is exacerbated when they are frightened, angry, or in stressful situations-mentally retarded persons simply do not qualify as among the most culpable offenders.

A Special Vulnerability

People with mental retardation are also uniquely and deeply vulnerable in criminal trials, a vulnerability that can be fatal when they are charged with capital crimes. They typically have difficulty comprehending abstract legal concepts, assisting in their own defense, or making informed choices regarding their rights. Eddie Mitchell, a retarded man on death row in Louisiana, waived his rights during his interrogation. When subsequently asked what "waiving his rights" meant, Mitchell raised his right hand and waved.

People with mental retardation are characteristically suggestible, eager to please persons in authority, and unable to cope with tension-filled situations. During police interrogations, most readily waive their right to remain silent and subsequently confess. Some even make false confessions, telling the police what they want to hear.

Earl Washington, Jr., a mentally retarded farmhand from rural Virginia with an IQ measured from fifty-seven to sixty-nine, confessed during a lengthy police interrogation to a whole host of crimes, including the stabbing of a young woman in 1982. The police eventually concluded that Washington could not have committed most of the crimes he had "confessed" to, but he was nevertheless prosecuted for the murder. The confession-which he subsequently recanted-largely consisted of Washington agreeing with what the police asked him and was laden with inaccuracies. For example, Washington told the police that the murder victim was black, even though she was white. He said he had kicked down her door, but it was undamaged. The court ruled that Washington's confession was admissible, and it was the primary evidence against him. After a three-day trial, Washington was convicted and sentenced to death. DNA tests subsequently proved that someone else had committed the crime. After spending eighteen years behind bars, and coming at one point within nine days of being executed, Washington was pardoned last year and released from prison on February 12, 2001.

The police interrogation of David Vasquez, a Virginia man with mental retardation, is also illustrative of the dynamic that leads to false confessions:

Detective 1: Did she tell you to tie her hands behind her back?
Vasquez: Ah, if she did, I did.

Detective 2: Whatcha use?
Vasquez: The ropes?

Detective 2: No, not the ropes. Whatcha use?
Vasquez: Only my belt.

Detective 2: No, not your belt. . . . Remember being out in the sun room, the room that sits out to the back of the house? . . . and what did you cut down? To use?
Vasquez: That, uh, clothesline?

Detective 2: No, it wasn't a clothesline, it was something like a clothesline. What was it? By the window? . . . Think about the venetian blinds, David. Remember cutting the venetian blind cords?
Vasquez: Ah, it's the same as rope.

Detective 2: Yeah.
Detective 1: Okay, now tell us how it went, David-tell us how you did it.

Vasquez: She told me to grab the knife, and, and, stab her, that's all.

Detective 2: (voice raised) David, no, David.
Vasquez: If it did happen, and I did it, and my fingerprints were on it. . . .

Detective 2: (slamming his hand on the table and yelling) You hung her!
Vasquez: What?

Detective 2: You hung her!
Vasquez: Okay, so I hung her . . .

After confessing to a crime he did not commit, David Vasquez pled guilty in 1984 to second-degree murder to avoid the death penalty and was sentenced to thirty-five years in prison. Five years later, the actual murderer was discovered, and Vasquez was pardoned.

Prosecutorial Zeal/Juror Confusion

As Justice Brennan warned in his forceful Penry I dissent, the individualized determination of punishment has failed to ensure that persons with mentally disabilities are spared the death penalty. Even when a defense lawyer presents evidence of the client's retardation, prosecutors are all too often more concerned with the professional or political ramifications of obtaining a "victory"-a death sentence-than with giving serious consideration to the ways mental retardation has affected the defendant's comprehension and conduct. Faced with pressure from the community and the victim's family, they do not want to "excuse" the crime or let an offender "off too easy." During trials they vigorously challenge the existence of mental retardation, minimize its significance, and suggest that although a capital defendant may "technically" be considered retarded, he nonetheless has "street smarts"-and hence should receive the highest penalty. Judges are also at fault. They too are often ignorant about mental retardation, fail to allow defense lawyers to present evidence of mental retardation adequately during a trial's penalty phase, or give juries confusing or incorrect instructions about mental retardation as a mitigating factor.

Most tragically, when prosecutors insist on seeking the death penalty for mentally retarded offenders, jurors all too often comply. As James Ellis, a law professor and expert on mental retardation and the criminal justice system, has noted, "There's some kind of disconnect between people's moral understanding and the way the system of imposing the death penalty actually works." Faced with terrible crimes, jurors can fail to appreciate the difference between guilt and culpability and do not want to "condone" a murder. They see a defendant who is smiling, drawing pictures, or not acting "remorseful" in the courtroom, and they think it is because he or she is callous and heartless rather than understanding that a person with mental retardation may have little idea what is happening. Finally, jurors can agree with prosecutors that mental retardation is an aggravating factor, i.e., they believe it portends the defendant's "future dangerousness," and they are worried that a retarded capital defendant given a prison sentence might one day commit another violent crime. Trial decisions suggest that, for many jurors, the aggravating factor of future dangerousness outweighs the mitigating factor of reduced culpability.

When the Supreme Court refused in Penry I to create a categorical exemption from the death penalty for persons with mental retardation, it left open the possibility that in individual cases a death sentence imposed on such a defendant might nevertheless violate the Eighth Amendment's ban on cruel and usual punishment. I am not, however, aware of cases subsequent to Penry I in which a court has so ruled. Although courts have ordered retrials on Eighth Amendment grounds, they have typically done so only when juries were not given appropriate instructions to consider the mitigating effects of a defendant's mental retardation.

Evolving Standards of Decency

In 1989, when Penry I was decided, only two states prohibited the death penalty for the mentally retarded, in addition to the fourteen states that barred the death penalty entirely. Writing for the majority, Justice Sandra Day O'Connor concluded this was insufficient evidence of a "national consensus" against such executions. In the years since Penry I, however, a growing public revulsion against executing persons with mental retardation is reflected in opinion surveys and political initiatives. Polls consistently show a preponderance of American people believe it is wrong to impose the ultimate state-sanctioned punishment on the mentally retarded. Even death penalty supporters oppose such executions. Last February, for example, a nationwide poll by the Houston Chronicle found that only 16 percent of people who otherwise support the death penalty would support the execution of a person with mental retardation. Steven Brewer and Mike Tolson, A Deadly Distinction, HOUSTON CHRON., Feb. 6, 2001. Today, seventeen states and the federal government have passed legislation barring these executions. Similar legislation is being considered in other states. Most recently, the governors of Florida, Missouri, Connecticut, and Arizona have all approved legislation banning the execution of the mentally retarded. However, Texas Governor Rick Perry just vetoed similar legislation in his state.

Although the Supreme Court's decision to hear McCarver's case has raised many hopes, it has made legislative reforms even more urgent. The greater the number of states that prohibit the execution of persons with mental retardation, the more likely the Court will conclude such executions run counter to the nation's evolving "standards of decency." Until then, the United States remains, to my knowledge, the only democracy whose jurisprudence expressly permits the execution of mentally retarded defendants and in which such executions are carried out.

Jamie Fellner is associate counsel at Human Rights Watch, a private, nonprofit, nonpartisan organization that promotes respect for internationally recognized human rights. This article is adapted from a Human Rights Watch report, "Beyond Reason: The Death Penalty and Offenders with Mental Retardation," published in March 2001.