The Death Penalty and Intellectual Disability in the United States

In the 2002 landmark decision Atkins v. Virginia 536 U.S. 304 (2002) the Supreme Court of the United States ruled that executing a person with an intellectual disability is a violation of the Eighth Amendment of the U.S. Constitution, which prohibits “cruel and unusual punishment.”  Despite the Court’s ruling, each state determines its own criteria for who qualifies as a person with an intellectual disability and therefore cannot receive the death penalty.  Two cases in the United States have recently raised the issue of executing persons with intellectual disabilities at the state level, bringing international attention and scrutiny.  In August 2012, a man named Marvin Wilson was executed in Texas, although his lawyers argued he had an intellectual disability and it would be illegal to apply the death penalty in his case.  In recent weeks, the execution of Warren Hill was stayed just minutes before he was set to die by lethal injection in Georgia after the 11^th Circuit Court of Appeals found that he had a mild intellectual disability.

The recent cases raise three critical human rights issues:

1)    the death penalty continues to be applied in the United States; 

2)    persons with intellectual disabilities likely have been executed in the past and continue to face significant risks; and 

3)    the question of how intellectual disability is measured in such cases—who decides and based on what factors?

Although capital punishment violates international law, the death penalty remains legal in 33 US states.   Certainly, the use of the death penalty in the United States is a serious human rights concern.  In 2011, the US was listed among the ‘top five executioners’ globally, following China, Iran, Saudi Arabia, and Iraq.  States currently retain the right to apply the death penalty as they see fit, a problem which allows states like Texas—where one-third of executions in the US take place—virtual free reign with little federal oversight.

An issue that has received significant attention in the United States and internationally is the application of capital punishment against persons with intellectual disabilities.  As the cases of Wilson and Hill show, the defense attorneys for both men claimed their clients could not be executed because they had intellectual disabilities and therefore applying the death penalty was a violation of their Constitutional rights.  It is alarming that Texas, backed by the US Supreme Court, permitted the execution of Marvin Wilson who very well could have had an intellectual disability.  According to a recent article, the current standards in Texas used to make the decision on whether the death penalty can apply “are based in part on the fictional character Lennie from John Steinbeck’s classic novel Of Mice and Men.”  Allowing states to develop their own (often weak or faulty) criteria for assessing intellectual disability violates the human rights of incarcerated people and is literally a matter of life or death.  While it appears that support for the death penalty in the United States is waning, states still have considerable leeway in determining who can and cannot be executed.  The Supreme Court or US federal lawmakers must uphold the ruling in Atkins v. Virginia by establishing consistent factors for states who still implement the death penalty to determine if a person has an intellectual disability.

The third serious issue that these cases bring up is the question of how states determine whether or not a convicted person has an intellectual disability and thus cannot be executed.  There is currently a movement among some state senators in Texas to make the standards used to determine intellectual disability “more scientific” in order to prevent such unlawful executions.  If new standards did in fact protect the rights of prisoners with intellectual disabilities, this would represent a promising step forward.  Nevertheless, the methods used to assess intellectual disability are not foolproof and can produce unreliable results.  For example, IQ tests, which are frequently used to determine level of cognitive function, can be inaccurate and overly simplistic.  When the stakes are so high, states should err on the side of caution to ensure that persons with intellectual disabilities are not being executed.  The United States has both a judicial and legislative responsibility to protect the rights of persons with intellectual disabilities and to uphold its own legal standards as established by the Supreme Court. Finally, it is high time that the United States acknowledges that capital punishment violates the human rights, not only of persons with intellectual disabilities, but of all people.