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Cruel & Unusual? Illinois should follow recommendation to ban executions of the mentally retarded

Should capital punishment be banned for mentally retarded defendants? Of course it should. 

And policymakers at the state and national levels now have an opportunity to make that happen. 

Last month, Gov. George Ryan’s Commission on Capital Punishment, among its many suggested reforms, unanimously recommended that the state of Illinois forbid capital punishment for the mentally retarded. That the decision was unanimous isn’t surprising. In plain language, to execute a defendant who is retarded is to put to death a person who functions at the level of a child.

If Illinois were to ban such executions, it would join 18 other death penalty states that have done so. Even the legislature in Texas, which has carried out more executions than any other state, and which recently put a mentally retarded man to death, favored such a ban. But last year, Texas Gov. Rick Perry vetoed the proposal. 

Still, the subject is getting increasing attention. The U.S. Supreme Court is about to address the constitutionality of executing the mentally retarded. That’s a hopeful sign. In 1989, the nation’s high court decided in Penry v. Lynaugh that executing mentally retarded people was not a violation of the Eighth Amendment, which prohibits cruel and unusual punishment, because mental retardation can be used as a mitigating factor when considering a sentence of death.

Further, the majority of the justices didn’t think there was a “national consensus” against executing mentally retarded people because at the time there were only two states, Maryland and Georgia, that prohibited such executions. Since then, 16 other states have enacted laws prohibiting the execution of the mentally retarded, and the federal death penalty statute also forbids such executions. 

Apparently, there now is enough “national consensus” that the court is preparing to reconsider the issue in the case of Daryl Atkins, a Virginia Death Row inmate who is mentally retarded. 

So what defines mental retardation? IQ tests measure intellectual functioning and serve as a good shorthand for understanding the scope of the problem. According to a report on mental retardation and the death penalty by the international nonprofit group Human Rights Watch, the vast majority of United States residents have IQs that fall between 80 and 120. An IQ of 100 is considered average. To be diagnosed as mentally retarded, a person must have an IQ significantly below average, below 70 to 75. If a person scores below 70 on a properly administered and scored IQ test, he or she is in the bottom 2 percent of the American population. An estimated 89 percent of all people who are retarded have IQs in the 51 to 70 range. 

What is the practical effect of such a deficit? An IQ in the 60 to 70 range is approximately the scholastic equivalent of the third grade. In other words, executing a person who is mentally retarded and has an IQ of 69 is like executing someone who functions at the level of a 10-year-old. 

Individuals who are mentally retarded are significantly limited in what they are able to do, and in their ability to think ahead. An adult with an IQ significantly below average may have trouble driving a car, following directions, participating in hobbies or work of any complexity, or behaving in socially appropriate ways. For most people who are mentally retarded, limited skills make ordinary life extremely difficult unless a caring family or social support system exists to provide assistance and structure.

And that’s an additional complicating factor. People facing a sentence of death usually come from extremely deprived conditions and have not received such support. They commonly are victims of or witnesses to violence in their homes, and have few, if any, resources to cope with this lifelong condition. They are easy prey to more cunning criminals who lead them into criminal activity. 

A person who is mentally retarded simply cannot see the world the way most of us who are more fortunate do. 

Morris Mason, for example, whose IQ tested at 62 to 66, was executed in Virginia in 1985 after being convicted of rape and murder. Before his execution, Mason asked one of his lawyers for advice on what to wear to his funeral. 

It’s not too soon to make this suggested reform in Illinois. Anthony Porter, whose IQ measured at 51 came within 48 hours of execution in 1998. By chance, another man confessed during a stay that Porter’s defense team had been granted to present evidence of his retardation. 

This is not to say that people who are mentally retarded are not responsible for their actions; that is a different inquiry altogether. But to inflict the ultimate sanction on a person who may live in a 25-year-old body, but can only comprehend at the level of a 10-year-old child is cruel, and should be unusual. It should be banned altogether.


Andrea D. Lyon is an associate clinical professor of law and director of the Center for Justice in Capital Cases at DePaul University’s College of Law in Chicago. She founded the Illinois Capital Resource Center in 1990. A former chief of the Homicide Task Force of the Cook County Public Defender’s office, she has tried more than 130 homicide cases, including more than 30 potential capital cases. 

Illinois Issues,June 2002

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