On June 20, 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that executing people with mental retardation violated the Eighth Amendment prohibition against cruel and unusual punishment, overruling its Penry v. Lynaugh decision in 1989. People with mental retardation are at a higher risk of wrongful convictions and death sentences. They may be more likely to falsely confess to a crime because they want to please the authorities that are investigating the crime. They are less able than others to work with their lawyers to help to prepare their defense. Because of the stigma attached to mental retardation, people with this disability often become adept at hiding it, even from their lawyer, not understanding the importance of this information to the outcome of the case. The first argument is the most global: execution of those who suffer from mental illness violates equal protection of the laws in those states which prohibit execution of children (i.e., all states), or at least in those jurisdictions which prohibit execution of people who are mentally retarded (numbering about a dozen).9 The second argument assumes that execution of people who are mentally ill is constitutional as a general proposition, but relies on the assertion made above that capital sentencing juries usually treat mental illness as an aggravating circumstance; on this assumption, the bulk of death sentences imposed on mentally ill people are deprivations of life without due process of law.10 The third argument assumes that a valid death sentence has been imposed, but shows why most mentally ill people on death row should not be executed either because they are incompetent under Ford, properly construed, or because their competence is maintained through an unconstitutional imposition of medication.11
First, such executions would violate equal protection of the laws in any jurisdiction in which execution of children and people with mental retardation is barred. Second, many death sentences imposed on people with mental illness violate due process because their mental illness is treated by the factfinder as an aggravating factor, either directly or to bolster a separate aggravating circumstance. Third, many mentally ill offenders who are sentenced to death will be so impaired at the time of execution that they can not emotionally appreciate the significance of their punishment and thus cannot be executed under the eighth amendment; the latter conclusion is required even if they are restorable through treatment, given the unethical and medically inappropriate role in which such treatment casts mental health professionals. The New Death Penalty Bans: Can We Have it Both Ways?
In 1977 the U.S. Supreme Court determined that the death penalty was not "cruel and unusual punishment" as defined under the Eighth Amendment to the Constitution. Twelve years later, the high court ruled that the death penalty for people considered to have mental retardation also was not "cruel and unusual punishment." At that time only two states that had the death penalty specifically banned execution of convicts who have mental retardation. As of this writing, 14 of the 38 states with a death penalty have ruled it out for inmates with mental retardation. Several other states are considering similar measures. This is certainly good news for those inmates, their supporters, and people considered to have mental retardation that may be accused of capital crimes now or in the future. It is also good news for lawmakers, judges, prosecutors, jurors - and much of the American public -- who now have a relatively simple answer to a very complicated issue. What does this mean for other people that have been labeled as having mental retardation or other disabilities but are law-abiding citizens? I worry that the trend toward banning executions for this one group of people actually has the potential to set disability rights, particularly the self-advocacy movement, back a couple of...
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