Tide Has Turned Against Executing Retarded Criminals

Momentum is growing across the country to reexamine the way mentally retarded people are treated by the criminal justice system.

Citing a growing national consensus, the U.S. Supreme Court recently banned the execution of mentally retarded people. The landmark decision was just the latest milestone.

Over the last 15 years, state legislatures have moved steadily to outlaw capital punishment for the mentally retarded, reflecting widespread belief that such defendants are less culpable than those without mental disability and that they are uniquely vulnerable to wrongful convictions.

While exact figures are hard to come by, studies indicate that mentally retarded people are convicted and incarcerated at higher rates than others, less likely to successfully plea-bargain and more likely to be abused in prison.

Most estimates put mentally retarded inmates at 4% to 10% of the U.S. prison population. In contrast, the American Assn. on Mental Retardation estimates up to 3% of the general population is mentally retarded.

The statistics make perfect sense, said Ruth Luckasson, president of AAMR.

“They’re at higher risk for waiving their rights, coming up with a confession, not having enough money to hire a lawyer, getting confused, all that stuff,” she said.

Inequities exist in every step of the criminal process, according to advocates, but they are particularly concerned about interrogations that result in confessions. Investigators are often unaware of how suggestible mentally retarded suspects are and how confused they can get under stress, experts say.

People with mental retardation often pick up cues from their questioners and adopt whatever story seems best to try to please them, said Chris Slobogin, a criminal law and psychology professor at the University of Florida.

“They try to hide their retardation because they’re embarrassed by it. One way of doing that is to agree with whatever is being suggested,” said Slobogin, who has written a book on psychological evaluations for courts.

“The research indicates that children who are older than toddlers, that is, 6, 7, 8, are no more suggestible, probably less suggestible, than people who are mentally retarded.”

Experts suggest that police avoid leading questions and that they videotape interrogations so they can be evaluated.

Advocates point to cases involving defendants such as Earl Washington Jr., a mentally retarded farmhand from rural Virginia. In 1982, after a lengthy interrogation, he confessed to a series of crimes, including stabbing a young woman. Washington, whose IQ was measured from 57 to 69, came within nine days of being executed before DNA evidence exonerated him. He was freed in February 2001 after spending 18 years behind bars.

No one knows how many of the 3,700 people currently on death row are mentally retarded, but estimates have ranged as high as 20%. At least 35 of the 781 people executed since 1976, when the death penalty was reinstated, were mentally retarded, according to the Death Penalty Information Center.

Polls show that most Americans, including those who support the death penalty, now oppose the harshest punishment for mentally retarded inmates.

Since 1989, the number of states barring execution of retarded people has jumped from 2 to 18. Thirteen states forbid all capital punishment. The federal death penalty statute also forbids executions of the mentally retarded.

The Supreme Court cited this growing consensus as evidence that society’s views have changed, and that the execution of retarded people is now considered cruel and unusual.

“It is not so much the number of these states that is significant, but the consistency of the direction of the change,” Justice John Paul Stevens wrote in the court’s majority opinion.

Those who disagree with the decision cite the problem of assessing mental retardation. Experts usually base the diagnosis on a combination of factors, including an IQ test, measurement of adaptive skills and childhood learning problems.

The Supreme Court places the IQ cutoff at 70 (average IQ is about 100). But test results in which a few points can mean life or death are likely to be bitterly contested.

Intelligence, unlike height or weight, is not a fixed measurement, and IQ scores can differ depending on the test given and the circumstances under which it is administered.