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The Developmentally Disabled and The Death Penalty
Jeff Garis, March 11, 2002
* Context - U.S.A. & Pennsylvania
  America's penchant for executing the developmentally disabled has placed us in increasingly limited and shameful company. While most democratic nations around the world have already abolished the death penalty outright, even countries that still utilize capital punishment have - with near unanimity - eliminated it for the mentally retarded. In recent years there has been increasing unease within the U.S. regarding this practice, and the momentum for abolition of the death penalty for the developmentally disabled has grown as well. At present, 18 of the 38 states with death penalty statutes have passed legislation banning or limiting its imposition on the developmentally disabled, the U.S. Supreme Court is currently reviewing a case that could set new precedent, and mainstream media outlets are providing in-depth coverage and analysis of the expanding controversy.
  Pennsylvania is presently one of the death penalty states that has taken no action to protect the rights of mentally retarded persons accused of capital crimes. Death penalty legal experts in Pennsylvania estimate that the number of developmentally disabled persons on death row in this state is 10%, with up to 25% of the condemned hovering near the borderline I.Q. of 70. With a death row exceeding 240 people, this means that between 24 and 60 of Pennsylvania's most vulnerable citizens are condemned to death by the state. While state and federal laws prohibit the death sentencing of 7 year-old children, there is nothing to prevent prosecutors from seeking the execution of a developmentally disabled person functioning with the mental capacity of a 7 year-old. The time has come for fair-minded and reasonable Pennsylvanians to demand that this outrage cease.
* Evolving standards of decency: Executing Persons with Mental Retardation is Cruel and Unusual Punishment
  In Trop v. Dulles, the United States Supreme Court addressed the Eighth Amendment, saying that the Cruel and Unusual Punishment clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop, 356 U.S. 86, 101 (1958). With that statement, the Court made clear that the standard for what is considered cruel and unusual punishment may change over time.
  In 1989, the U.S. Supreme Court ruled 5-4 that executing persons with mental retardation was not cruel and unusual punishment. Penry v. Lyanaugh 492 U.S. 302. The Court instead held that mental retardation should be considered a mitigating factor in sentencing. The majority opinion referred to a lack of a "national consensus" against executing persons with mental retardation. At the time, the only death penalty states that prohibited such executions were Maryland and Georgia.
  Since the 1989 ruling, it has become increasingly apparent that the killing of mentally retarded persons no longer comports with modern standards of decency - as evidenced from state and local legislative action, public actions and opinion polls, and the international community.
  Of the 38 states with the death penalty, 18 plus the federal government now prohibit the execution of mentally retarded persons. In addition, legislation seeking to ban the execution of the mentally retarded is pending in another 8 states. (The Justice Project)
  Nationwide, there is a growing public consensus that executing the mentally retarded is immoral and unjust. More than 1,800 organizations around the U.S., including most religious groups in the country, have called for a halt to all executions. Most of these groups single out the execution of the mentally retarded as a major reason to reexamine the issue of capital punishment. More than 50 cities nationwide have joined that call. (Equal Justice USA) In addition, public opinion polls consistently show that a majority of Americans believe it is wrong to execute mentally retarded persons. Even many who favor the use of the death penalty consider the sentence unjust in the case of mentally retarded offenders.
  The killing of mentally retarded offenders in the United States is also a concern of the international human rights community and a continuing source of friction with the other Western democracies of Europe and North America. A 1999 resolution by the U.N. Commission on Human Rights urged "all States that still maintain the death penalty" (are urged) not to impose the death penalty on a person suffering from any form of mental disorder.""
  It is clear that most of the world is repulsed by the practice of executing persons with mental retardation. Since the U.S. Supreme Court will likely revisit this issue in 2002, and since they will be looking to the states for an expression of the will of the people, it is imperative that state legislatures seeking to ban these executions act before that time. (Unless otherwise noted, the source for this section is the Death Penalty Information Center)
* Why persons with Mental Retardation should not be executed:
  The death penalty is supposed to be reserved for the most culpable offenders. Persons with mental retardation, by virtue of their disability, do not fall in this category.
  Persons with mental retardation have limited ability to reason and navigate the world.
  The mentally retarded have grave difficulties with communication, learning, logic, strategic thinking and planning.
  Persons with mental retardation have problems with judgment, memory, attention, and with understanding consequences.
  Offenders with mental retardation are vulnerable in capital trials because their disability makes it hard for them to comprehend abstract legal concepts or to assist in their own defense.
  Offenders with mental retardation are likely to relinquish key legal protections.
  Persons with mental retardation are characteristically suggestible, 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.
  Unable to understand court proceedings, mentally retarded defendants may alienate juries by smiling, sleeping, or staring in court, giving a false impression of callousness or lack of remorse.
  Persons with mental retardation are often ashamed of their limitations. Some defendants will hide their condition from their lawyers, not understanding that mental retardation is relevant to their defense.(Source: Human Rights Watch)
* Conclusion: Statement by Pennsylvania Abolitionists United Against the Death Penalty
  The execution of persons with mental retardation illustrates one of the questions and problems about the death penalty that underlie our position in favor of a moratorium. We welcome, as a first step, the effort to preclude the execution of persons with mental retardation, since we believe that such persons experience distinguishable problems within the criminal justice system.

   A copy of Senate Bill 26 can be viewed by going to:
Pennsylvania Abolitionists United Against the Death Penalty, P.O. Box 58128, Philadelphia, PA 19102
Phone: 215-724-6120 Fax: 215-729-6189 Website: