"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
--Eighth Amendment to the Constitution of the United States of America, ratified December 15, 1791

"There is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment."
--U.S. Supreme Court Justice Sandra Day O'Connor, addressing the question of whether the death penalty is "cruel and unusual punishment" when applied to people with mental retardation, in the 1989 ruling on John Paul Penry

-----

May 9, 2002

UNITED STATES--In 1977, the U.S. Supreme Court decided that the death penalty does not violate the Constitution. Since then, 38 states plus the federal military have passed their own laws making executions legal.

The rules are different when they involve convicts considered to have mental retardation.

And those rules are rapidly changing.

In 1989, Georgia and Maryland were the only two states with a death penalty that specifically banned execution of people with mental retardation. At the end of the year 2000, eleven more states and the District of Columbia had similar laws on the books: Arkansas, Colorado, Indiana, Kansas, Kentucky, Nebraska, New Mexico, New York, South Dakota, Tennessee, and Washington.

By the end of 2001, five more states had added such bans: Arizona, Connecticut, Florida, Missouri, North Carolina.

Individuals and groups that oppose capital punishment for criminals with mental retardation are active in many of the states that still allow the practice.

These changes may be important in light of a decision pending at the U.S. Supreme Court that will determine whether or not executing people with mental retardation violates the Eighth Amendment's protection against "cruel and unusual punishment".

The same question was before the Supreme Court in 1989 when, in a close 5-4 vote, it was ruled that the practice was not unconstitutional. In the case of Penry v. Lynaugh, Justice Sandra Day O'Connor added that, "There is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment."

We will know whether the Court believes the national consensus has changed when it announces it decision within the next few weeks. If it does decide that way, the death penalty for people with mental retardation would be illegal in all 50 states. If not, most experts on both sides of the issue predict that the Court would not likely review the issue again for a long time.

Here are some recent updates related to the death penalty for inmates with mental retardation:

ALABAMA--March 24: A bill that would prohibit the execution of murderers with mental retardation was carried over by a House committee so that objections to the bill can be resolved.

Under the measure a judge or jury would rule whether the defendant has mental retardation, based on a determination that the defendant had an IQ of 70 or below, and that the disability occurred before age 18. The judge or jury would then decide if the defendant would be tried for the death penalty or life in prison. Any of Alabama's 185 current death row inmates could apply for "mental retardation status", under the bill.

Convicted murderer Glenn William Holladay, whose attorneys say has mental retardation, could possibly use the bill to try to avoid execution. Holladay, who was convicted of shooting to death his ex-wife, her boyfriend and a friend of her son's in 1986, came within one day of being executed last year. His execution is on hold until the U.S. Supreme Court determines if such executions are unconstitutional this summer.

NEVADA--April 18: The Legislative Commission's Subcommittee to Study the Death Penalty and Related DNA Testing heard testimony from both sides of the death penalty debate regarding the use of execution related to convicts with mental retardation. The committee has the ability to draft legislation and to make recommendations to the full legislature. During the last legislative session, a bill that would have banned execution of such inmates passed the state Assembly but was stopped in the Senate.

It is estimated that three of the state's 86 death row inmates have mental retardation. One of those is Thomas Nevius who reportedly spent 14 years in prison before anyone found a record of an IQ test taken when he was younger. Nevius scored between 57 and 68 on IQ those tests.

Related story from the Las Vegas Sun:
"Panel Questions State's Death Penalty Statute"
http://www.las vegassun.com/sunbin/stories/lv-crime/2002/apr/19/513334240.html

PENNSYLVANIA--March 19: A bill before a Senate Judiciary Committee would prevent the death penalty where the defendant scores at 70 or less on an IQ test and shows "an impaired ability to adapt", and where the disability was manifested before age 22.

According to supporters of the bill, opinion polls show that a majority of people, including those who want a death penalty, oppose it for convicts with mental retardation. Opponents of the bill say other means already exist for fairly protecting the rights of this population.

OKLAHOMA--April 15: The Senate passed legislation to keep the state from executing inmates determined to have mental retardation. The measure was previously passed in the state House. The measure now goes to a joint House-Senate conference committee for more work.

The legislation would require courts to hold hearings before a trial to determine whether a defendent has mental retardation, here defined as having an IQ of 70 or below and proving the disability was seen before age 18. The bill would effect inmates convicted of first-degree murder, the only crime in the state punishable by death. Defendants with mental retardation could be given a maximum sentence of life in prison.

ILLINOIS-- April 15: The Governor's Commission on Capital Punishment provided Governor George Ryan with a list of recommendations for changing the state's laws on the death penalty. One of those recommendations includes a ban on the death penalty for defendants determined to have mental retardation. Two years ago Ryan put a temporary halt to executions in the state after DNA tests determined that a large number of death row inmates were improperly convicted.

CALIFORNIA--April 8: It is estimated that about 4 percent of California's prison population has mental retardation. It is not known how many of those are on death row.

In California, candidates for public office risk losing elected positions if they come out against capital punishment. Perhaps this is why lawmakers have tended to stay away from any changes in the law -- even those provisions involving executing inmates with mental retardation. Last June, a state Assembly committee dropped a bill that would have ended such executions.

Even though Californians favor the death penalty, a 1997 Field Poll found that 71 percent opposed capital punishment for convicts determined to have mental retardation.
Related article from the San Francisco Chronicle:
"Clarity Sought From Court On Executing The Retarded"
http://www.sfgat e.com/cgi-bin/article.cgi?file=/c/a/2002/04/08/MN148072.DTL

Other recent news:

NORTH CAROLINA--April 28: Norris Taylor, 57, has been on death row since 1979 for murder and rape -- longer than any other inmate. Last year, the North Carolina legislature made the death penalty illegal for defendants with an IQ of 70 or below, who showed their disability existed before their 18th birthday. The law also allows current inmates to ask that their cases be reviewed.

Taylor's lawyer says his client has an IQ of 58. He is among 46 inmates seeking a life sentence under the new law.

TEXAS--April 29: Jury selection was set to begin in John Paul Penry's third sentencing hearing. The panel must decide whether Penry deserves life in prison or lethal injection for the 1979 murder of Pamela Mosely Carpenter.

Penry, 45, has been sentenced to death twice and both sentences were overturned by the U.S. Supreme Court because confusing instructions were given to the juries regarding his mental retardation.

In the most recent ruling, the high court let Penry's murder conviction stand, so the jury will only be considering his punishment.

Earlier in April, a jury found Penry competent to stand trial even though he scored between 51 and 63 on IQ tests, well below the mark of 70 considered by most experts to indicate mental retardation.

Last summer, the Texas Legislature passed a measure that would have prohibited execution of inmates with mental retardedation. The bill was vetoed by Governor Rick Perry.
Related story from ABC News:
"IQ of Death Penalty Inmate Questioned"
http://abcnews.go.com/wire/US/ap20020403_ 1618.html

---

For more background and other stories on the death penalty and mental retardation, check out this Inclusion Daily Express Webpage:
http://www.inclusiondaily.com/news/ laws/deathpenalty.htm

An Inclusion Daily Express opinion piece ran in the Ragged Edge Magazine last summer. It is available on-line at their Web site:
http://www.raggededgemagazine.com /extra/deathrow051501.htm

OTHER RESOURCES:
Death Penalty Information Center
http://www.deathpenaltyinfo.org/dpicmr.html< /P>

Human Rights Watch
http://www.hrw.org/campaigns/deathpenalty/m r.htm

TheArcLink invites comments and responses to any issue related to people with disabilities and their families. Readers can email their submission to editor@thearclink.org. The name, address and telephone number of the author must be included in the message for verification purposes.