Mental Retardation and the Death Penalty: The Need for an International Standard Defining Mental Retardation

By Freedman, Allison | Northwestern Journal of International Human Rights, January 1, 2014 | Go to article overview

Mental Retardation and the Death Penalty: The Need for an International Standard Defining Mental Retardation


Freedman, Allison, Northwestern Journal of International Human Rights


I. INTRODUCTION

1 Within the international community, there is a consensus against the imposition of the death penalty on individuals with mental retardation.1 The United States Supreme Court and several international human rights bodies have recognized that individuals with mental retardation should not be subject to the death penalty.2 Additionally, most countries maintain that individuals who are insane or mentally retarded are shielded from execution.3 However, reports of individuals with mental retardation who are facing the death penalty continue to surface.4

2 One reason for this may be the lack of an international standard defining mental retardation.5 There is currently great variation between cultures in defining the level of mental functioning that constitutes retardation.6 Additionally, definitions of mental retardation vary widely from country to country, with some countries conflating mental illness with mental retardation and others completely excluding mental retardation from their definition.7 As a result, there is no way "to gauge the extent to which the widespread prohibition on the execution of the mentally retarded has in fact provided a safeguard for all those to whom it may apply in principle."8

3 Marvin Wilson's story exemplifies the inconsistency in the application of the death penalty with regard to individuals with mental retardation. Marvin Wilson, a 54-year-old American male convicted of shooting and killing another man, had an IQ of 61 and even lower functioning levels. He struggled in school, dropped out after 10th grade, and had trouble performing the simplest tasks without assistance. A board-certified expert concluded that Marvin was mentally retarded, yet he was put to death in Texas on August 7, 2012.9

4 The international community condemns the execution of individuals with mental retardation, and many international human rights bodies recommend a ban on such executions. However, the recommendations fail to provide the international community with guidance on what constitutes mental retardation. Therefore, an international standard would help avoid executions occurring because of confusion and a lack of understanding revolving around what qualifies as mental retardation.

5 Much recent scholarly research focuses on the lack of protection of individuals with mental illnesses and the need for such protection under the United States Constitution's Eighth Amendment ban on cruel and unusual punishment.10 However, little attention has been given to the already existing categorical exclusion for individuals with mental retardation under the Eighth Amendment. Because individuals with mental retardation have theoretically been exempted from the death penalty, less time has been spent exploring the problems that have arisen in the wake of the theoretical exclusion. Scholars have given even less attention to the way the ban on executing individuals with mental retardation actually functions on the international stage.

6 This article addresses the need for an international standard defining mental retardation so that the international consensus exempting individuals with mental retardation from the death penalty can be realized in practice. Part II provides an overview of the semantic nuances in the language surrounding mental retardation that have likely led to some of the confusion regarding the definition of mental retardation. Part III explores the ethical and moral justifications for exclusion of individuals with mental retardation from the death penalty. Part IV explores why, despite an international consensus to the contrary, individuals with mental retardation are still executed today. To illustrate the grave problems resulting from the varied definitions of mental retardation, Part IV also provides a case study of an individual who was recently sentenced to death despite being mentally retarded. Part V provides a survey of all the countries that currently use the death penalty and categorizes these countries by their definition of mental retardation, looking at countries that (a) define only mental illness without a separate provision for mental retardation; (b) conflate the definitions for mental retardation and mental illness; (c) differentiate between mental illness and mental retardation; and (d) provide no definition for either mental illness or mental retardation. …

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