SENSELESS PUNISHMENT: Executing The Mentally Retarded

Johnny Penry, sentenced to death in Texas, has the mental abilities of a six-and-a-half-year-old. Even though his life rests in the balance, he would never be able to understand any part of the debate that will occur before the Supreme Court on March 27, the day of oral argument in his constitutional appeal.

Besides Penry, whose execution was stayed pending a ruling in his appeal, the Court has recently granted a reprieve from execution to two other mentally retarded defendants. An estimated two to three hundred others are currently on death row.

Since 1976, at least thirty-five mentally retarded people have been executed in the United States. Some of them had such low cognitive skills that they may not have fully understood that they were being put to death. Their mental impairments may have also seriously undermined their ability to assist in their legal defense. Not only are mentally retarded people incapable of mature, calculated evil, they are uniquely vulnerable to miscarriages of justice.

Persons with mental retardation have a limited capacity for coping with life's challenges. They have grave difficulties with communication, learning, logic, strategic thinking, and planning. Their disability negatively affects their judgment, memory and attention, as well as their capacity to understand abstract concepts. Their ability to exercise restraint is diminished. Whatever their degree of retardation, they have difficulty learning from experience and understanding cause-and-effect relationships. In all these respects they differ, crucially, from other adults.

The death penalty is ostensibly reserved for the most blameworthy criminals. But persons with mental retardation, even those who commit acts of deadly violence, may be incapable of fully controlling their actions, comprehending their actions' consequences, or understanding their actions' moral implications. With a limited capacity for making genuine moral choices, mentally retarded persons simply do not qualify as among the most culpable offenders.

The diminished capacity of the mentally retarded also makes them deeply vulnerable in capital trials. Persons with mental retardation may have difficulty comprehending abstract legal concepts and assisting in their own defense. They are, from the very moment of arrest, more likely to relinquish crucial 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.

Earl Washington, Jr., for example, confessed during a lengthy police interrogation to a murder he did not commit. Indeed, his "confession" extended to a whole host of unsolved crimes, from burglary to rape and, most critically, to the 1982 stabbing of a young woman. It was eventually shown that Washington did not commit most of his supposed crimes, and Washington, who had been diagnosed as brain-damaged as a child, later recanted his confession.

DNA tests subsequently proved that someone else, a known rapist, had committed the crime for which Washington was sentenced to death. Washington was finally pardoned last year, having spent spending eighteen years in prison. At one point during that time, he had come within nine days of being executed.

While the Supreme Court has so far permitted the execution of persons with mental retardation, it has ruled against executing the insane, and has also held that the death penalty cannot be imposed on someone for a crime committed before the age of sixteen. The Court's reasoning in the latter two decisions, handed down in 1986 and 1988, respectively, is instructive — for it strongly suggests that the death penalty should not be imposed on the mentally retarded, either.

In Ford v. Wainwright, the Supreme Court held that executing the insane violates the Eighth Amendment. Undergirding the Court's judgment was its serious doubts as to the retributive value of "executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life."

Similarly, in Thompson v. Oklahoma, the Court held that crimes committed by persons under the age of sixteen cannot be punishable by death. 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 necessary under the Eighth Amendment to inflict the death penalty.

Yet, in 1989, when the Supreme Court considered the constitutionality of executing persons with mental retardation, it took a very different approach. The case, Penry v. Lynaugh, involved Johnny Paul Penry, the same mentally retarded man whose appeal, on other grounds, will be heard again next week. Penry was convicted of raping and killing a young woman in Texas.

In Penry, a sharply divided court ruled that the Eighth Amendment did not bar the execution of persons with mental retardation. Writing for the majority, Justice Sandra Day O'Connor reviewed federal and state practice on the issue, noting that the Eighth Amendment prohibits punishments that were prohibited historically as well as those that run counter to the "evolving standards of decency that mark the progress of a maturing society."

Finding that only two states specifically prohibited the execution of the mentally retarded, in addition to the fourteen states that barred the death penalty entirely, Justice O'Connor concluded that there was not "sufficient evidence at present of a national consensus" against such executions. She was also unconvinced that all persons with mental retardation lack the capacity to act with the degree of culpability necessary to justify the death penalty.

Justice Brennan strongly dissented from the majority's reasoning on these points. Finding that persons with mental retardation are limited in their intellectual abilities, their self-control, and their moral development, he concluded that these factors necessarily lessen their culpability. In his view, "whatever other punishment might be appropriate, the ultimate penalty of death is always and necessarily disproportionate to [their] blameworthiness and hence is unconstitutional."

Since Penry was decided, 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.

Thirteen states and the federal government have passed legislation barring the execution of offenders with mental retardation. Efforts are currently underway to pass similar laws in several other states, including Arizona, Florida, Missouri, Nevada, North Carolina, Oklahoma and Texas.

To my knowledge, the United States is the only democracy whose laws expressly permit the execution of the mentally retarded. Unfortunately, given the composition of the Supreme Court, responsibility for ending this grotesque practice will likely remain with the states.