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EDITORS'NOTE: On Friday, the Supreme Court banned the execution of the mentally retarded. James Q. Wilson wrote on the issue in the July 23, 2001, issue of National Review.
This is not a very interesting complaint. Even if we ban the death penalty for the mentally retarded, European leaders will still dislike us for having the death penalty at all (or a missile-defense system, or Big Macs, or the English language). And the opposition of some of these leaders to the death penalty ignores the fact that many — in some cases, most — of their citizens want it. Democratic politics in Europe usually means letting elites do what they wish. In our own country, public opinion is a much stronger force on political decisions. In California, the liberal legislature has been worried about a bill that would ban executing the retarded for fear that its passage would allow their electoral opponents to criticize them for being soft on crime. When elites disagree with popular views, they try to cope by changing the subject. They may have succeeded. In a June Fox News poll, two-thirds of Americans said that they oppose executions for the retarded even if they are convicted of premeditated murder. If they mean what they say (and that is not quite certain), it is not a trivial fact, for it suggests that Americans may be willing to say that these sentences when imposed on such people are "cruel and unusual punishment," proscribed by the Constitution. Opponents of the death penalty are aware of this, and so there has been of late a flurry of agitation against executing the retarded, perhaps as an opening wedge leading to a ban on executions generally. If Americans are generally outraged by putting to death a mentally retarded criminal, the Supreme Court will have great difficulty in avoiding the conclusion that the process is unconstitutional. But we cannot be certain that American views are based on a clear understanding of what a mentally retarded person is. It is not one who is insane or an idiot. Current legal codes make the insane or idiotic eligible for such sentences as "not guilty by reason of insanity," followed by a long term of confinement to a mental institution. The argument for the insanity defense is straightforward: If the accused person, as a result of some mental disease or defect, could not understand that the act he was committing was wrong, then he lacked the mental state that makes him personally responsible for his crime. In no state can an insane defendant be executed. But mental retardation is a different matter. Conventionally, it is measured by a score on an intelligence test. If your IQ is no more than 65 or 70 (when the average IQ is 100), you can be considered retarded. Just how retarded you are depends on how low the score is, as well as on other features of your personality. Why should being stupid excuse one from a penalty that is routinely imposed on people who are not stupid? The answer is that retarded persons may not be able to participate effectively in their own defense. They may be suggestible, ready to agree to a police officer's misleading claim that they broke the law, or be unable to tell their attorneys what they need to know in order to represent them effectively. But these precise questions are ordinarily brought before the court (and should be brought before it in every relevant case) as a matter of elementary fairness. No court should allow a person to plead guilty wrongly or to give his lawyer inadequate help. When presidential candidate George W. Bush said that Texas, which had no law barring the execution of the retarded, did not need such a law, I suspect he had these legal requirements in mind. Since he spoke, the Texas legislature passed a bill exempting the mentally retarded from the death penalty, but it was vetoed by Gov. Rick Perry. Depending on the state, you can be called retarded on the basis of an IQ test, or the judgment of experts, or some combination of the two. Connecticut law, for example, defines retardation as "a significantly sub-average general intellectual functioning," and this means doing poorly on "one or more of the individually administered general intelligence tests." Now, if you wish to be considered retarded, your first task is to do poorly on this test. Unlike doing well, doing poorly is easy — just pretend you can't remember some numbers, assemble some pictures, or define some words. As long as the IQ test is the key variable and mental retardation is a mitigating factor, people facing trial have a powerful incentive to cheat on the test: Get a low score and you keep the needle out of your arm. Now, one might be able to overcome this bias if scientists perfect some means to measure IQ directly without any test-taking. For example, a machine might be devised that will measure average evoked brain potential. That potential, crudely put, is the amount of electrical energy radiated by the brain after it experiences some sharp stimulus, such as listening to a clicking sound. Studies suggest that this measured brain potential correlates with IQ. But machines that can measure IQ directly and accurately in this way do not yet exist, though if the elite hostility to IQ research could be eased, they might well be produced. If such machines do become available, then the chances that a suspect will be able to cheat on the IQ test will be reduced. In states such as Florida, by contrast, two court-appointed experts are to evaluate a defendant's mental capacity. If they find he is retarded he will not be subject to the death penalty no matter how guilty he may be. But in defining retardation, Florida says pretty much what Connecticut says: You are retarded if your IQ is more than two standard deviations below the average (which would make it roughly 70 or lower), coupled with "deficits in adaptive behavior" manifested between birth and age 18. One has to wonder a bit about how skilled such experts will be at determining retardation (especially in measuring childhood "deficits in adaptive behavior"), how much power will be invested in judges by allowing them to pick the experts, the opportunities for endless litigation about the experts' verdict, and whether experts will do a better job than jurors in assessing retardation. Even in Texas, a juror who believes the defendant is retarded can consider this a mitigating factor and by so voting block the imposition of the death penalty. But the real problem that may confuse the public is the difference between retardation and competence. Some people with an IQ below 70 may well be competent to stand trial in the sense that they know certain actions are wrong, can communicate to their attorneys all of the relevant facts, and testify with credibility. In some cases, being competent simply means not being insane, but competency can include more than the absence of insanity. For example, a person may be sane but incompetent to stand trial if he does not have a sufficient ability to consult with his lawyer with a reasonable degree of rationality and factual knowledge about the trial of which he is a part. Some people with an IQ above 70 may not be competent. A reasonably bright person may, because of some strong personality disorder, be incoherent or disruptive. If a defendant is found incompetent to stand trial, he is usually sent to a mental institution and then, if and when he recovers, brought back for trial. Barring the execution of a person simply because the IQ (whether measured accurately or not) is below 70 makes little sense. It can be made to appear to make sense by a simple, misleading spin: "How can we execute a man who has the brain of a six-year-old?" This is a clever way of converting a complex issue into a made-for-TV sound bite. Of course, we don't execute six-year-olds, but for a reason that has little to do with mental ability. Six-year-old children have not had the benefits of those human experiences, practical circumstances, and adult guidance that would have made them a morally complete person, one able to grasp the wrongness of certain actions and the consequences that will flow from them. But an adult, even one with a low IQ, may well know exactly what he is doing when he breaks the law and understand full well the consequences of being caught. Many low-IQ offenders, just like most high-IQ ones, go to great lengths to conceal their crimes and evade detection. Among the Texas defendants who are described as retarded are men who killed their victims after raping them in order to prevent them from squealing. Moreover, saying that an adult man with an IQ of 65 has the mind of a six-year-old child is not correct. IQ measures are standardized on a population of equivalent persons (say, all children or all adults). Having a low adult IQ is a measure of how well you compare to other adults who have taken the same test. A six-year-old child, by contrast, has an IQ (and it may be very high or very low) that is measured in comparison with that of other children. The central issue is not retardation but competence. I would not be surprised to learn that low-IQ defendants make up a disproportionate share of those found to be incompetent to stand trial any more than I would be surprised to learn that high-IQ defendants make up a disproportionate share of those found to be competent. But the key question is not to measure their IQ or to allow experts to decide whether they are retarded; it is, instead, to decide if they are competent to stand trial. No one who is incompetent should stand trial or be executed as a result of a conviction. When the U.S. Supreme Court decided in 1989 a case involving a mentally retarded convict, it ruled, 5 to 4, that the defendant, one Johnny Paul Penry, had in fact been found competent to stand trial and that he clearly understood that it was wrong to have killed his victim. But the Court also said that the jurors in his trial had not been properly alerted to the fact that they could consider retardation or childhood abuse, and so the case went back to Texas for a new trial. But the Court also said that, in time, such executions might be found unconstitutionally cruel and unusual. In 1989, only a few death-penalty states exempted the mentally retarded, and so the Court held that American opinion had not produced those "evolving standards of decency" that would bar such executions. Today more states have become dissenters and so the Court now may take a different view of the matter. Even Penry's case has been back before the Court: This year it overturned his execution again because in its opinion the jury in the new Texas trial had failed to consider fully his mental retardation. But the broader question of constitutionality may be settled in the case of Ernest McCarver, a North Carolina Death Row inmate who claims to be retarded. If the Court decides that executing him constitutes cruel and unusual punishment, this will irritate many people who think the Court has no business reading public opinion into the Constitution. I tend to agree with them, but I also recognize that this is in fact what the Court often does. We have desegregated schools today, not because the Constitution or its amendments require it, but because the Court decided in 1954 that (for a variety of rather badly stated reasons) segregation was wrong. It may reach the same judgment on mental retardation, but I hope it would first try to clarify how retardation differs from competency and why a legally competent albeit retarded defendant deserves special protection. You may dislike judges creating law by changing what the phrase "cruel and unusual" means, but remember that neither the Constitution nor the Congress that drafted it gave it any meaning. To define it, the Court will inevitably have to consider the state of public opinion just as they might have in 1800 if they thought they should abolish torture. In 1977, the Court barred the execution of a man who had raped but not killed a woman because capital punishment was an "excessive" (I suppose cruel) penalty. In making this decision, the majority explicitly referred to the need to consider public opinion and what legislatures had done about it. If the Court bars executions of the mentally retarded, the main task of state legislatures will be to devise ways of preventing the "stupidity excuse" from being manipulated by scheming defendants, just as the "frail old man" excuse has been tried by some Mafia leaders. I am not at all certain how the legislatures will do this. Some people claim that between one-tenth and one-fifth of all people on Death Row are retarded. They may well be right. Murderers who get caught are often not very bright. The best we can hope for, I suspect, is to insist that state law make it very clear that a jury, and not some experts, will get to decide whether a person is retarded, and that the law will ensure that if a retarded person committed a crime that, if done by a smarter one, would result in execution, he will be kept in prison for life without the possibility of parole. |
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the 38 states that allow the death penalty, some 15 exempt the mentally
retarded from its reach, as does the federal government. Recently a group
of retired American diplomats urged the Supreme Court to ban such executions
generally, arguing that the absence of such a ban "will strain diplomatic
relations with close American allies." 
