Don't execute the retarded

April 20, 2001|By Mark K. Shriver

JOHN PAUL Penry has an IQ of 54. Ernest McCarver has an IQ of 67. Both men sit on death row, in Texas and North Carolina, respectively. Each man is mentally retarded.

The U.S. Supreme Court will consider constitutional questions related to both cases this year. The McCarver case may well determine whether the Constitution permits the execution of criminals with mental retardation at all.

Should the court make this decision, it would mark one of the most significant reversals in the law on capital punishment since the reinstitution of the death penalty in 1976.

Despite significant progress for people with mental retardation over the past 25 years, there is still profound misperception and misunderstanding about the needs and abilities of this population. This is particularly true in the Penry case.

In part, the justification for Penry's death sentence is his perceived social competence. Penry's ability to socialize does not negate his cognitive development, which is that of a 6 1/2 -year-old child. Executing a person with the cognitive development of a 6 1/2 -year-old is unconscionable, not to mention a violation of the constitutional prohibition on "cruel and unusual punishment" especially when a life sentence without parole is a viable alternative.

As of 1997, only the United States and Kyrgystan permit the execution of mentally retarded people and carry out such executions. Thirty-five people with mental retardation -- people with IQs under 70 -- have been executed since 1989.

How can we, as Americans, possibly condone this as "justice"? As a world power and a leader in the international community, shouldn't we be ashamed?

The good news is that public sentiment and laws are changing. In 1989, only Maryland and Georgia prohibited the execution of people with mental retardation. Today, 13 of the 38 states that impose the death penalty prohibit it. Federal law also forbids executing mentally retarded people convicted in federal cases.

Yes, it's important that justice be done in the rare instance when a person with mental retardation commits a heinous crime.

Yet we must always remember that mental retardation is a cognitive disability whose essential nature is directly relevant to the reliability of a defendant's confession and to the ability to participate meaningfully in his defense.

When the U.S. Supreme Court first considered the Penry case in 1989, Justice William J. Brennan Jr. wrote, "The impairment of a mentally retarded offender's reasoning abilities ... in my opinion limits his or her culpability so that, whatever other punishment might be appropriate, the ultimate penalty of death is always and necessarily disproportionate to his or her blameworthiness and hence is unconstitutional."

In deciding the Penry case, the court can finally affirm Brennan's view. And by taking the McCarver case, the court has the opportunity to ban the execution of people with mental retardation in every state.

The Supreme Court of this great country, whose roots are based in a constitution that bans cruel and unusual punishment, should do both.

Mark K. Shriver, a Democrat, represents Bethesda in the Maryland House of Delegates and is a candidate for the U.S. House seat occupied by Connie A. Morella, a Republican. He is a member of the President's Committee on Mental Retardation.

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