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Colorado Quarterly Magazine 

"Rewriting the Myths, Redefining the Realities"


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Death Penalty Inequities Dictate Abolition, Not Exemptions

By Laura Hershey

Last month, the United States Supreme Court ruled that people with mental retardation, those who possess IQs below 70, cannot be executed. Some advocates have received this as a great victory, while others reject the decision as a patronizing exemption from social responsibility.

I see both sides. Disabled people do want equality in all things — including risk and accountability. However, I don’t think we need to defend equality of oppression. For that is what the death penalty represents — oppression of society’s most devalued members, including the poor, people of color, and people with disabilities.

I agree with those who say that the Supremes’ ruling rests on a condescending view of people with mental impairments. Justice John Paul Stevens, in writing the majority opinion, equated mentally retarded defendants with children, who do not have the same degree of ethical responsibility as adults. “Because of their disabilities in areas of reasoning, judgment, and control of their impulses,” wrote Stevens, “they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” He added that mentally retarded defendants are more likely to act on impulse or to be swayed by others in a group. “Their deficiencies do not warrant an exemption from criminal sanctions, Stevens concluded, “but they do diminish their personal culpability.”

I don’t like the idea of generalizing that “they” — people with mental retardation — can’t reason or control themselves. Those assumptions are based partly on stereotype, and partly on observed behavior — but that behavior is an effect of how disabled people are treated, especially in institutional settings, “special” schools, group homes and so on. By basing a major ruling on such generalizations, the Supreme Court helps to perpetuate negative attitudes toward people with developmental disabilities.
On the other hand, if this ruling moves our country even one small step toward eventual abolition of the death penalty, it will be a victory for human rights, though a watered-down victory. If it stops even one execution, the impact will be more positive than negative. 

It is likely to stop quite a few executions. Twenty states impose the death penalty on people with mental retardation. I am not advocating irresponsibility for disabled people who commit murder and other heinous crimes. Nothing can excuse such brutality — certainly not the disability of the perpetrator. Disability should not exempt a person from accountability for his or her actions. Victims deserve justice, and their families need support and the opportunity to heal from their terrible losses. 

But the execution of accused criminals does not create accountability, nor healing, nor justice. An execution simply snuffs out one life in exchange for another, forever precluding any possibility of rehabilitation for the convicted, or of restitution for the survivors.

Advocates for people with mental retardation point out that the criminal justice system is full of barriers that seriously compromise the rights of suspects who have cognitive disabilities. Many have been wrongly convicted. 

For these reasons, The Arc, a national advocacy organization made up primarily of parents and professionals, has taken a strong stand in favor of exempting people with mental retardation from the death penalty. The Arc adopted a resolution in 1998 which reads, in part: 

“The presence of mental retardation by definition raises so many possibilities of miscommunication, misinformation and an inadequate defense that the imposition of the death penalty is unacceptable. People
with mental retardation shall be exempt from the death penalty, but not from other appropriate punishment, on a case-by-case basis.” 

It is true that mental disability, and the conditioning brought on by institutional life, can make people more vulnerable to abuse and wrongful conviction. Some have been sentenced to die because they did not understand the accusations against them. Some have confessed because they had been taught to always try to please others. Some lacked the wherewithal to argue in their own defense or to plea bargain.

Human Rights Watch, in a thoroughly researched report available online at, makes a strong case against execution of people with low IQs. The report documents how police and prosecutors commonly take advantage of developmentally disabled people’s impairments and vulnerabilities – for example, by browbeating them into barely-coherent confessions; by coercing them to waive rights without understanding either the rights, or the implications of waiving them; by pressuring defendants to make complex decisions which are neither informed nor voluntary.

I would argue that there are other, even bigger barriers for people with mental retardation within the criminal justice system. These are the same circumstances, which send other people, especially members of minority groups, to death row. They include:

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