Mental Retardation

http://www.deathpenaltyworldwide.org/mental-retardation.cfm

A number of international human rights bodies have recognized that mentally disabled
individuals should not be subjected to the death penalty. In 1989, the UN Economic and
Social Council passed a resolution recommending Member States to take steps to
eliminate[e] the death penalty for persons suffering from mental retardation or extremely
limited mental competence, whether at the stage of sentence or execution. U.N. ECOSOC,
Implementation of the Safeguards Guaranteeing Protection of Rights of those Facing the
Death Penalty, p. 51, para. 1(d), U.N. Doc. E/1989/91, May 24, 1989. The UN Commission
on Human Rights has also adopted several resolutions urging all states not to execute any
person suffering from any form of mental disorder. See, e.g., U.N. Office of the High
Commissioner for Human Rights, The Question of the Death Penalty, E/CN.4/RES/2003/67,
Apr. 25, 2003.

In 2002, the United States Supreme Court in Atkins v. Virginia ruled that executing individuals
with mental retardation violated the U.S. Constitutions prohibition against cruel and unusual
punishment. Atkins v. Virginia, 536 U.S. 304, U.S. Supreme Ct., 2002. In so ruling, the Court
relied not only on a national consensus that executing mentally retarded individuals was
inappropriate, as evinced by the growing number of state legislatures banning the practice and
the consistency of the direction of that change, but also on a much broader social and
professional consensus. Id. at 314-16, 316 n. 21. The Court notably cited an amicus curiae
brief submitted by the European Union and stated that within the world community, the
imposition of the death penalty for crimes committed by mentally retarded offenders is
overwhelmingly disapproved. Id. at 316 n.21.

Subjecting mentally disabled individuals to the death penalty has been condemned on a
number of grounds. First, penological goals such as retribution and deterrence are not served
by executing these individuals, who are limited in their ability to appreciate the consequences
or wrongfulness of their actions. Moreover, mentally disabled individuals are vulnerable to
giving false confessions, are less able to assist counsel in preparing their defense, and their
actions in court are often interpreted by juries as demonstrating a lack of remorse.

There are no international standards that govern the definition of mental retardation. The
American Association on Intellectual and Developmental Disabilities defines mental
retardation as a disability characterized by significant limitations both in intellectual
functioning and in adaptive behavior, as expressed in conceptual, social, and practical
adaptive skills, that originated before the age of 18. The American Association on Intellectual
and Developmental Disabilities, Frequently Asked Questions on Intellectual Disability and the
AAIDD Definition, http://www.aaidd.org/content_185.cfm, last accessed Dec. 18, 2011.
Mental retardation is a disability that is markedly different from mental illness; an individual
with mental retardation may be entirely free from mental illness. Mental illness is typically
defined in the criminal justice system as a disorder or disability that significantly impairs an
individuals capacity to appreciate the nature, consequences or wrongfulness of her conduct,
to exercise rational judgment in relation to her conduct, or to conform her conduct to the
requirements of the law. Mental retardation, by contrast, involves inherent deficiencies in
intellectual functioning from birth (often imperfectly demonstrated by I.Q. scores), and
limitations in adaptive skill areas necessary to cope with the requirements of everyday life.

A vast majority of nations conflate mental retardation with mental illness, or leave out mental
retardation as an exclusionary category entirely. Consequently, mentally disabled individuals
continue to face the death penalty around the world. U.N. ECOSOC, Capital punishment and
implementation of the safeguards guaranteeing protection of the rights of those facing the
death penalty: Report of the Secretary General, paras. 86-88, U.N. Doc. E/2005/3, Mar. 9,
2005. For example, nations like Botswana, Egypt, Myanmar, and the Russian Federation
include provisions in their criminal statutes that limit prosecution of defendants who, as a
result of mental illness, cannot appreciate the wrongfulness of their actions. Other nations,
like Ethiopia, Guatemala, Lebanon, and Oman maintain protections for mentally disabled
individuals, but only as a mitigating factor with respect to criminal culpability. In both
scenarios, mentally disabled individuals are not adequately protected from execution. In the
first case, these provisions fail to recognize that mentally disabled individuals often do not
meet the legal definition of insanity. In the second case, the recognition of mental
disabilities as mitigating factors falls short of a requirement that mentally disabled individuals
should never be subjected to the death penalty. In essence, these provisions ignore the
distinction between an offenders culpability for the crime (where the insanity test is
particularly relevant) and the need to impose a punishment for the crime that appropriately
reflects the offenders intellectual or developmental disabilities. Someone who is mentally
disabled from birth may know right from wrong but, nonetheless, should not be placed in the
category of the most culpable offenders for whom the death penalty is ostensibly reserved.
Human Rights Watch, Beyond Reason: The Death Penalty and Offenders with Mental
Retardation, p. 28, http://www.hrw.org/reports/2001/03/05/beyond-reason-0, Mar. 5, 2011.

Additionally, definitions of mental retardation vary widely among nations. As a result of

international confusion regarding the level of mental retardation necessary to limit imposition
of the death penalty, it is impossible, according to Hood and Hoyle, to gauge the extent to
which the widespread prohibition on the execution of the mentally retarded has in fact
provided a safeguard for all those to whom it might apply in principle. Roger Hood &
Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, p.198, Oxford University Press,
4th ed., 2008. According to the UN Secretary General, Japans legal test to determine
whether someone is weak-minded, leading to exclusion from the death penalty, is so
limited that the Japan Federation of Bar Associations reports that Japanese courts find even
the most mentally retarded people are completely mentally competent. U.N. ECOSOC,
Capital punishment and implementation of the safeguards guaranteeing protection of the
rights of those facing the death penalty: Report of the Secretary-General, para. 86, U.N. Doc.
E/2005/3, Mar. 9, 2005. Ghana excludes from criminal responsibility individuals whose
idiocy or imbecility affects their mental state severely enough that they would not
understand the consequences of their actions. Ghana Criminal Code of 1960, art. 27, amended
by Act No. 646 of 2003. In Jamaica, a person suffering from abnormality of mind due to a
condition of arrested or retarded development or any inherent cause induced by disease or
injury so as to diminish mental responsibility cannot be convicted of capital murder. Jamaica
Offenses Against the Person, art. 5(1), 2005. In South Korea, a defendant with an unsound
mind may be criminally liable for an offense but can only be executed after recovery from
the state of unsound mind. South Korea Criminal Procedure Act, art. 469, No. 341,
amended by No. 8730, Dec. 21, 2007. These varying definitions make it difficult to verify
whether each country refrains from executing mentally disabled individuals and further reflect
fundamental misunderstandings of the nature of mental retardation.
At least some nations are also limited in their ability to administer tests to determine the
mental status of defendants in the first place. For example, the Judicial Committee of Trinidad
and Tobago admitted that there was a shortage of qualified forensic psychiatrists in certain
Caribbean countries and that this meant that the mental health of defendants in murder cases
was not routinely assessed either by the State or the [defense]. U.N. ECOSOC, Capital
punishment and implementation of the safeguards guaranteeing protection of the rights of
those facing the death penalty: Report of the Secretary-General, para. 88, U.N. Doc. E/2005/3,
Mar. 9, 2005.

Cases
Atkins v. Virginia, 536 U.S. 304, U.S. Supreme Ct., 2002.

Brief for European Union as Amicus Curiae Supporting Petitioner, McCarver v. North
Carolina, No. 00-8727, 2001 WL 648609, U.S. Supreme Ct., June 8, 2001.

Commentary
American Civil Liberties Union, Mental Illness and the Death Penalty,
http://www.aclu.org/files/pdfs/capital/mental_illness_may2009.pdf, May 5, 2009.

James Welsh, Mental Retardation and the Death Penalty, Amnesty Intl., ACT 75/002/200, Jul.
2001.

John H. Blume, Sheri Lynn Johnson & Christopher Seeds, Of Atkins and Men: Deviations
from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J. L. &
Pub. Poly 689 (2009).

J. Amy Dillard, And Death Shall Have No Dominion: How to Achieve the Categorical
Exemption of Mentally Retarded Defendants from Execution, 45 U. Rich. L. Rev. 961 (2011).

Simon H. Fisherow, Follow the Leader?: Japan Should Formally Abolish the Execution of the
Mentally Retarded in the Wake of Atkins v. Virginia, 14 Pac. Rim L. & Poly J. 455 (2005).

Human Rights Watch, Beyond Reason: The Death Penalty and Offenders with Mental
Retardation, http://www.hrw.org/reports/2001/03/05/beyond-reason-0, Mar. 5, 2011.

Edward Miller, Executing Minors and the Mentally Retarded: The Retribution and Deterrence
Rationales, 43 Rutgers L. Rev. 15 (1990).