Executing the Mentally Disabled

March 30, 2017

The United States Supreme Court held in 2002 that it was cruel and unusual punishment and, therefore, a violation of the Eighth Amendment to the United States Constitution to execute someone who is mentally retarded. Tennessee already had in place a statute which prohibited the execution of one who is mentally retarded. The Tennessee statute provided that mental retardation meant a significantly sub average general intellectual functioning quotient of 70 or below, deficits of adaptive behavior, and the intellectual disability must have been manifested in the developmental period, or by the age of 18 years old. The burden was on the defendant to prove upon preponderance of the evidence that he was mentally retarded, and, if he did, the State was prohibited from submitting the case to the jury for the request of a sentence of death. The Court made that initial decision. If the Court denied the motion, the defendant could still argue to the jury as a mitigating circumstance the mental retardation of the defendant.

We all have an idea what an IQ of 70 or below means. But deficits in adaptive behavior are a little more tricky. The psychologists in the courts look to things such as the ability of a defendant to wash a load of clothes, to follow a simple recipe and prepare a meal, and to be able to pass an examination for a driver’s license. Tennessee driver’s license examinations are made for someone of a comparable 5th grade education. The mental retardation also must have shown itself in the developmental stage of the defendant or certainly by the age of 18.

In 2010 the Tennessee General Assembly made the statute politically correct by changing the term mental retardation to intellectual disability. The Supreme Court of the United States held in Hall v. Florida that the states have some leeway in determining what the standards are for mental retardation. The Supreme Court made those standards much more clear in the case of Moore v. Texas. Texas had employed a group of standards adopted by its Court of Criminal Appeals in a case ex parte Briseno in 2004. Justice Ginsburg, writing for a 5 to 3 majority in the Supreme Court held that several factors set out by the Texas Court of Criminal Appeals were untied to any acknowledged source. Justice Ginsberg held, not being aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed.” In so holding, Justice Ginsburg let the world know that the factors must represent the medical community’s consensus and not an invention of an Appellate Court. That consensus is expressed by the psychological community in its Diagnostic and Statistical Manual of Mental Disorders, 5th Edition or DSM-5. That manual states that the diagnostic criteria for intellectual disability are as follows:

Intellectual disability (intellectual developmental disorder) is a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains. The following three criteria must be met:

A. Deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intelligence testing.

B. Deficits in adaptive functioning that result in failure to meet developmental and socio-cultural standards for personal independence and social responsibility. Without ongoing support, the adaptive deficits limit functioning in one or more activities of daily life, such as communication, social participation, and independent living, across multiple environments, such as home, school, work, and community.

C. Onset of intellectual and adaptive deficits during the developmental period.

These are the same essentially as what the Tennessee statute said since 1993, but fleshed out to a greater degree.

It makes sense that if we as a nation believe that executing someone who is intellectually disabled is wrong, that we look to the persons who develop the criteria by diagnosing intellectual disability and treat it on a daily basis. Such a system appears to be consistent and more correct in determining just who is too intellectually disabled to warrant the ultimate penalty of death. As Justice Ginsburg wrote of adjudications of intellectual disability:

“Should be informed by the views of medical experts.”