Intellectual Disability and the Death Penalty

On June 20, 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that executing people with intellectual disabilities violated the Eighth Amendment prohibition against cruel and unusual punishment, overruling its Penry v. Lynaugh  decision in 1989.

The difference, according to the Court, was its finding that a public consensus had emerged, demonstrating "evolving standards against executing people with intellectual disabilities."

Between 1989 and 2002, sixteen states outlawed executing intellectually disabled people, bringing the total to eighteen of the 38 states that have the death penalty.  The Court also looked to public opinion polls that have consistently shown support for banning executions for people with intellectual disabilities, as well as international law and opinion that universally condemns the practice.   

The ruling means states that have the death penalty are now under a Constitutional mandate to craft legislation and other procedures to ensure that people with intellectual disabilities are not executed. It is not an easy task.

Intellectual disabilities are commonly misunderstood. They are defined by the American Association on Mental Retardation (AAMR) as "significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period." Three factors must be taken into account in order for a person to be classified as intellectually disabled

First, a person must have sub-average intellectual functioning. Intelligence Quotient (I.Q.) tests are one means of determining sub-average functioning but it is important not to confuse IQ with intellectual disability.  A common standard is an I.Q. of 70 or below; but numbers alone do not always determine intellectual disability.

Second, a person must have difficulty coping in the everyday world. People with intellectual disabilities, particularly in less-severe forms, are often able to be autonomous members of society, holding jobs, and living without assistance. However, they have greater difficulty than the average person in dealing with stressful situations. Their intellectual development and reasoning are limited, as is their ability to predict cause and effect.

Third, the disability must manifest itself prior to adulthood, which is usually considered age eighteen. (This third requirement makes it impossible for a defendant to ""fake"" intellectual disabilities.)  

People with intellectual disabilities are at a higher risk of wrongful convictions and death sentences.  They may be more likely to falsely confess to a crime because they want to please the authorities that are investigating the crime. They are less able than others to work with their lawyers to help to prepare their defense. Because of the stigma attached to intellectual disabilities, people with these disabilities often become adept at hiding it, even from their lawyer, not understanding the importance of this information to the outcome of the case.  

State legislatures across the country are working to bring their laws into compliance with the Atkins decision, crafting definitions and developing processes to determine intellectual disabilities.  

Definitions can be too limiting.  For example, some states, like Idaho, have defined intellectual disabilities by a fixed IQ number, even though experts agree that these numbers alone do not determine intellectual disability.  Under Idaho law, someone with an IQ of 71 could be executed, even if he or she otherwise qualified as intellectually disabled.  

Another crucial issue is when the determination is made, and by whom.  Advocates for the intellectually disabled want the decision made pre-trial, by a judge or unbiased jury, based solely on evidence of intellectual disability.  Prosecutors in states like Virginia and Louisiana have been arguing for the decision to be made post-conviction by the same jury that found the person guilty of murder.  It is clear that a  pre-trial decision makes more sense; if a person is intellectually disabled and not eligible to be executed, the state saves the hundreds of thousands of dollars associated with a death penalty prosecution.

Case Study

Earl Washington:  The case of Earl Washington is a poignant example of how those with intellectual disabilities are more vulnerable in the criminal justice system. Washington was sentenced to death in 1983 for a crime he did not commit. Because of his intellectual disability he was induced by police into confessing to the crime. DNA evidence eventually proved his innocence, but not before Washington came dangerously close to being executed. Washington spent ten years on death row and then several more years in prison before he was finally released in January of 2001.

Click here for more information on the exoneration of intellectually disabled death row prisoners.

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