F i r s t   C l a s s 

Joseph Pennington
October 15, 1997
Paper #2
On June 26, 1989, the United States Supreme Court, in the case of Penry v. Lynaugh, upheld the imposition of the death penaklty on a mentally retarded offender, John Penry (Chan 1211). The Court, also, held that the Federal Constitution's eighth amendment's cruel and unusual punishment clause is not violated by the execution of mentally retarded defendants (Cook 869). I strongly concur with the United States Supreme Court's decision. I do not believe that mentally retarded defendants should be categorically exempt from the death penalty because of their retardation. I hold this position because IQ test results are sometimes unreliable, there are different degrees of understanding of right and wrong among mentally retarded persons with the same IQ, defendants who receive life sentences have a better life than the homeless, and there is no national consensus against executing the mentally retarded. Rather than giving a categorical exemption to the mentally retarded, I feel that each murder case involving a mentally retarded defendant should take into consideration the previously mentioned factors.
When a defendant is labeled mentally retarded, an IQ test is administered to determine the degree of retardation. What is mental retardation? Grossman, an expert in the field of intelligence testing, defines mental retardation as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period" (5-7). Thus, mental retardation is in essence a norm-referenced statistical creation and reflects no absolute judgements about intelligence but only the view that the labeled individual demonstrates lesser aptitudes and abilities than the norm (Grossman32). Tests used by courts to determine a defendant's retardation must be reliable. High reliabilities are especially needed for tests used for individual assessment such as in court cases (Sattler 26).
Each IQ test incorporates a standard error of measurement, which is the variation between the obtained score and the true score. This difference is sometimes as much as fifteen points. Thus, the IQ score obtrained by a defendant is only one of many possible scores that may be achieved with different sample questions or the same questions at a different time (Rumley 1334). Should a mentally retarded defendant with an IQ of 70 be exempt from the death penalty when his score could range anywhere from 85 to 55? I vehemently believe that a blanket exemption from the death penalty because of an unreliable IQ score is wrong. In addition, Grossman states that the IQ's of mentally retarded persons do not remain constant. Studies have shown great fluctuation in IQ scores for such reasons as fatigue or illness. Numerous studies indicate that motivational factors can affect IQ scores (Grossman 26-27). Certainly a defendant facing the death penalty would be highly motivated to do poorly on an IQ test knowing that a score of 70 or below could save him from the death penalty.
Although the reliability of IQ test results is questionable, many states including Georgia, Tennessee, Kentucky, Maryland, and New Mexico have enacted legislation categorically prohibiting the execution of defendants who have an IQ of 70 or below (Rumley 132). These states presume that no mentally retarded defendant could ever act with the degree of blameworthiness associated with the death penalty (Rumley 132). This is a totally wrong assumption. That a particular IQ score is indicative of a specific degree of mental retardation must be rejected. Sarason, a clinical psychologist, states that it cannot be emphasized too strongly that a low IQ score does not enable one to state in what ways a particular individual is different from others with an identical score, what his reactions are to a variety of situations, his attitudes towards himself and others, and what effects he will produce on what kinds of people in what kinds of situations (qtd. in Woody 11). Regrettably, as previously mentioned, in several states, the IQ is the singular most heavily weighted factor in determining whether or not a defendant should receive the death penalty. Exonoration from the death penalty should not be based on a fallacious IQ score.
The problem with basing exemption from the death penalty on an IQ score is that IQ does not adequately relate to measures to everyday functioning nor the understanding of right from wrong. People obtaining the same IQ score vary widely in talents and social competence. These dissimilarities result from motivational factors and personality as well as social background (Zigler & Farber 398). IQ then should not be an indicator of everyday functioning. In the Penry v Lanaugh case, Justice O'Connor states that "there are various degrees of mental retardation and mentally retarded people are individuals of various abilities" (qtd in Chan 1229). In the same case, Dr. Kenneth Vogtsberger testifies that "although Penry was a person of limited mental ability, he knew the difference between right and wrong and had the potential to honor the law" (qtd. in Chan 1230-31). He also states that Penry's low IQ scores "underestimated his alertness and understanding of what went on around him" (qtd. in Chan 1230-31). The Supreme Court upheld this testimony. I agree wholeheartedly with this line of thinking. A low IQ does not automatically prevent a defendant from discerning between right and wrong. Jane Mercer, an expert in the study of mental retardation, states that "a person with an IQ as low as fifty-five who displays no deficits in adaptive behavior should not be considered mentally retarded" (Mercer 133). I agree with Mercer. IQ should not be a complete indicator of everyday functioning. Courts must consider each defendant individually and determine that criminal's understanding of the wrongfulness of his act as well as the consequences associated with the act of murdering another member of our society.
Because many states do not take into consideration the degree of blameworthiness of the defendant and only consider the IQ when deciding on the death penalty, a debate is being waged throughout the United States over the issue of whether or not mentally retarded muderers should receive the death penalty. Advocates for the mentally retarded support a categorical exemption for the mentally retarded from the death penalty. I do not support this exemption because mentally retarded defendants who receive a life sentence have a better life than many homeless persons in our country. There are presently over 250 mentally retarded defendants on death row (Rumley 1302). These defendants are enjoying life because of a low IQ score and are being treated well when they deserved death for their crimes.
To illustrate the treatment of mentally retarded murderers who receive life in prison rather than the death penalty, I relate the following case. A mentally retarded man murdered a mother and her daughter in front of a three-year old boy. When finished raping and killing the females, he sexually molested the boy and left him to die. Because of his mental retardation, for twenty-two hears, the murderer got to stay in jail, eat three meals a day, sleep in an air conditioned room, and have a roof over his head (Shapiro 61). Compare his existence to that of a homeless person who has not killed anyone, yet lives day to day wondering where he or she will sleep at night and where the next meal will come from. There seems to be no justice when a convicted murderer has a better life than an innocent homeless person.
"Society must manifest a terrible anger in the face of a terrible crime, for nothing less will suffice to remind us of the moral order by which alone we can live as human beings" (Hertzberg 49). One of the ironies of capital punishment is that it focuses attention and sympathy on the criminal while the victim becomes secondary. Compassion for the mentally retarded should not blind us to the difference between right and wrong. Mentally retarded murderers should not be treated as honored guests in our nation's penitentiaries. They should not enjoy a better life than the homeless in our country because of mental retardation. The mentally retarded have fought for equal rights and must accept equal treatment under our nation's laws. Indeed, when the Supreme Court ruled not to categorically exempt the mentally retarded from the death penalty, it was concerned that to do so could have a disempowering effect on the mentally retarded in other areas of the law, such as the opportunity to enter into contracts or to marry (Hinton 924-25).
Therefore, advocates of rights for the mentally retarded must consider all aspects that a Supreme Court ruling to categorically exempt the mentally retarded from the death penalty could have in other areas of the law. Advocates for the mentally retarded contend that people with mental retardation cannot be held accountable for crimes to the extent that the death penalty would be an appropriate punishment. They say that because the mentally retarded confess to crimes they did not commit that innocent people are sentenced to death (Edwards and Keyes). While this may be true in some cases, the mentally retarded should not be exempted from the death penalty for this reason. If an innocent man is mistakenly put to death, it is the price we must pay for living in a society of imperfect human beings. Nearly all human activities such as driving, construction and recreation involve the loss of lives by innocent bystanders. Yet, we do not abandon these activities; nor, should we abandon the death penalty as punishment for murder or exempt any group from being punished.
The Supreme Court will not take the leadership role in exempting groups from the death penalty when a national consensus does not exist. Any group exceptions will have to come from the state legislatures (Hinton 931). Although several states havve passed laws exempting the mentally retarded, which is 2% of the population, from the death penalty, the United States Supreme Court will not follow suit unless a national consensus is evidenced through state legislative action (Hinton 931). While at least eleven states have passed legislation to protect the mentally retarded from the death penalty, this does not constitute sufficient evidence of a national consensus in favor of the mentally retarded (Edwards and Keyes 15). Also, when ruling on the Penry case, the Supreme Court found that "opinion surveys indicating strong public opposition to such executions do not establish a societal consensus" (Hinton 931). In light of the fact that there is no national or societal consensus, I strongly believe that the Supreme Court made the right decision concerning the death penalty for the mentally retarded issue.
In conclusion, I restate my position; I do not believe that mentally retarded defendants should be categorically exempt from the death penalty because of an IQ score. My research has shown that IQ tests are unreliable and that an IQ score is representative of a wide range of scores and is not an absolute number. IQ scores are affected by motivational factors. What better motivating factor than saving your own life by getting a low IQ score?
In addition, my research has shown that there are varying degrees of understanding of right from wrong among persons with the same IQ score. If this is the case, how can a person be exempted from the death penalty because of an IQ score? The courts must determine each defendant's understanding of right from wrong and his or her potential to honor the law. Mentally retarded defendants are not a homogeneous group. Like any other group, they vary in personality, temperament, and most of all, understanding of right from wrong. The courts must tak individual differences among mentally retarded defendants into account when sentencing.
When courts sentence a mentally retarded defendant to life imprisonment rather than the death penalty because of his or her IQ, I feel as if the defendant has been elevated in social position and the victim is forgotten. Consider that the murderer will spend the rest of his or her life never having to worry about food, shelter, or clothing. Why? Unfortunately, the answer is because he committed murder and was excused because of an IQ score. The murderer enjoys a better life than a homeless person who never committed a crime.
Finally, until there is a national consensus among state legislatures, the United States Supreme Court will not even consider exempting the mentally retarded from the death penalty. I adamantly agree with the Court's decision. To exempt any group in our society from the death penalty is wrong and the mentally retarded are no exception. Murder has no color, class or IQ. A murderer is a murderer. If a loved one is killed, I doubt that a family would take comfort in the fact that the murderer had a low IQ. There is no good reason for a murderer to escape his penalty. Categorically exempting the mentally retarded from the death penalty would mean that no matter how heinous the crime, regardless of the degree of retardation and understanding of right and wrong, the offender could never be executed and would, in essence, have free rein to kill.