Tucson, Arizona Sunday, 7 July 2002
By Michael Luo
THE ASSOCIATED PRESS
Momentum is growing across the country to re-examine the way the criminal justice system treats retarded people.
Citing a growing national consensus, the U.S. Supreme Court recently banned the execution of retarded people. The landmark decision was just the latest milestone.
Over the last 15 years, state legislatures have moved to outlaw capital punishment for the retarded, reflecting wide belief that such defendants are less culpable than those without mental disability and that they are uniquely vulnerable to wrongful convictions.
Studies indicate that mentally retarded people are incarcerated at higher rates than others, are less likely to plea-bargain successfully and are more likely to be abused in prison.
Most estimates put retarded inmates at 4 percent to 10 percent of the U.S. prison population. In contrast, the American Association on Mental Retardation estimates up to 3 percent of the general population is retarded.
The statistics make sense, said Ruth Luckasson, president of the association.
"They're at higher risk for waiving their rights, coming up with a confession, not having enough money to hire a lawyer, getting confused," she said.
Advocates are particularly concerned about interrogations that result in confessions. People with mental retardation often pick up cues from their questioners and adopt whatever story seems likely to please them, said Chris Slobogin, a criminal law and psychology professor at the University of Florida.
"They try to hide their retardation because they're embarrassed by it. One way of doing that is to agree with whatever is being suggested," he said.
Advocates point to cases involving defendants like Earl Washington Jr., a mentally retarded farmhand from rural Virginia. In 1982, after a lengthy interrogation, he confessed to a series of crimes, including stabbing a young woman. Washington, whose IQ was measured between 57 and 69, came within nine days of being executed before DNA evidence exonerated him.
He was freed in February 2001 after 18 years behind bars.
No one knows how many of the 3,700 people currently on death row are mentally retarded, but estimates have ranged as high as 20 percent.
Arizona lawmakers voted last year to block the execution of those who are mentally retarded. In Arizona, a person is considered mentally retarded if his IQ is 70 or below and he cannot live alone or care for himself, said Kent Cattani, chief counsel for the state attorney general's capital litigation section.
Cattani said he doesn't know how many of Arizona's 127 death-row inmates might fit that profile. "I don't think it will be an extraordinary number," he said.
Polls show that most Americans, including those who support the death penalty, now oppose the punishment for retarded inmates.
Since 1989, the number of states barring execution of retarded people has jumped from 2 to 18. Thirteen states forbid all capital punishment. The federal death penalty statute also forbids executions of the mentally retarded.
The Supreme Court cited this growing consensus as evidence that the execution of retarded people is now considered cruel and unusual.
Those who disagree with the decision cite the problem of assessing retardation. Experts usually base the diagnosis on a combination of factors, including an IQ test, measurement of adaptive skills and childhood learning problems.
The Supreme Court places the IQ cutoff at 70 (average IQ is about 100). But test results in which a few points can mean life or death are likely to be bitterly contested.
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