An Obligation of Humaneness : California should exempt the mentally retarded from the death penalty

More often than not, the death penalty sparks fractious debate that divides Californians. But there is a new proposal on which almost all Californians can agree, whether they oppose or support the death penalty: that mentally retarded people should not be executed.

In 1988 the U.S. Supreme Court ruled that the 8th Amendment’s prohibition against cruel and unusual punishment does not “categorically” prohibit the execution of a mentally retarded person; however, it also noted that “a national consensus against execution of the mentally retarded may someday emerge, reflecting the ‘evolving standards of decency that mark the progress of a maturing society.’ ”

Since that decision, five states--Georgia, Maryland, Kentucky, Tennessee and New Mexico--have barred execution of the mentally retarded. When Congress imposed the death penalty for convicted “drug lords” in 1988, it exempted mentally retarded people.

California state law provides no death-penalty exemption for the retarded. Currently, the only people spared the death penalty are minors under the age of 18 at the time of the crime, pregnant inmates and insane people.

Assembly Bill 1455, sponsored by Phillip Isenberg (D-Sacramento) and modeled closely after laws in other states, would allow a humane and appropriate exception to the death penalty. The bill would prohibit the execution of mentally retarded people, imposing instead a mandatory sentence of life in prison without possibility of parole.

The bill would require use of the professionally accepted definition of mental retardation, which, among other things, requires manifestation of retardation during childhood. Thus a recently convicted murderer could not fake mental retardation.

The fact that AB 1455 is co-sponsored by Sen. Frank Hill (R-Whittier), a staunch proponent of the death penalty, is telling. If passed by the Legislature, the proposal would be offered as an amendment to California’s death penalty statute and as such would require voter approval. It deserves support.