A number of international human rights bodies have recognized that intellectually 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 intellectual disability ("mental retardation" in the terminology of the Court) violated the U.S. Constitution’s 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 intellectually 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, intellectually 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 intellectual disability. The American Association on Intellectual and Developmental Disabilities defines intellectual disability 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. Intellectual disability is a disability that is markedly different from mental illness; an individual with intellectual disability 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 individual’s 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. Intellectual disability, 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 intellectual disability with mental illness, or leave out intellectual disability as an exclusionary category entirely. Consequently, intellectually 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 intellectually disabled individuals, but only as a mitigating factor with respect to criminal culpability. In both scenarios, intellectually disabled individuals are not adequately protected from execution. In the first case, these provisions fail to recognize that intellectually disabled individuals often do not meet the legal definition of “insanity.” In the second case, the recognition of intellectual disabilities as mitigating factors falls short of a requirement that intellectually disabled individuals should never be subjected to the death penalty. In essence, these provisions ignore the distinction between an offender’s 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 offender’s intellectual or developmental disabilities. Someone who is intellectually 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 intellectual disability vary widely among nations. As a result of international confusion regarding the level of intellectual disability 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 intellectually disabled 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, Japan’s 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 intellectually disabled 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 intellectually disabled individuals and further reflect fundamental misunderstandings of the nature of intellectual disability.
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 the Privy Council 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.
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.
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. Pol’y 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. & Pol’y 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).
Last updated on December 20, 2011