Mental Retardation and the Death Penalty

Dudley Sharp, Justice For All, 10/18/01

Much of the presentation regarding excluding the execution of the mentally retarded has been either highly deceptive or lacking in a clinical foundation or both.

We hope this essay helps to correct that.

Some say that we mustn't execute people who do not know right from wrong and who lack understanding the severity of their crimes. The reality is that we have not been executing such people for decades, because current law doesn't allow it.

Currently, during pre-trial, trial and appeals, the law provides evaluation for mental competency -- and such an evaluation requires that the defendant understand the consequences of their actions, that they must be able to constructively participate in their own defense and that they understand the nature of their punishment. Furthermore, mental capability is one of the many issues that a jury might consider when establishing mitigation which may dictate a sentence less than death. Quite simply, only mentally competent capital murderers can face either execution or life in prison.

And that is appropriate.

Here is an example of the type of obfuscation and ignorance that is often seen within this issue.

Death penalty opponents state that Texas has executed 6 mentally retarded capital murderers. Those executed are defined as mentally retarded by their IQ numbers. First, mental health professions state that IQ measurements alone cannot establish mental retardation. So states that solely use that standard to exclude a possible death sentence have used an improper standard and those who declare people mentally retarded simply by IQ numbers are equally incorrect.

Those Texas six are called mentally retarded because they allegedly had a measured IQ of below 70 -- a standard below which some establish mental retardation. First, death penalty opponents will often list only the lowest recorded general IQ numbers of the murderer and intentionally withhold other tests which recorded much higher numbers. Such opponents also fail to note that there is a margin or error of plus or minus 10 points within that IQ evaluation, meaning that only those who score below a 60 on their maximum IQ test can establish mental retardation by using those numbers.

Furthermore, general IQ is not even relevant to the evaluations. Only performance IQ, which attempts to measure a persons abilities to function effectively under real world situations, is the relevant issue, if one improperly wishes to just 'go by the numbers'. Again, those states and advocates who use only general IQ evaluations have misunderstood or improperly applied that qualification.

And based on that analysis, as well as a review of the case facts, such opponents cannot support their claims that Texas has executed even a single mentally retarded murderer. I suggest that may likely be the case in other states, as well.

A case example:

During Texas' last legislative session, in the spring of 2001, supporters of HB236, a bill to ban execution of the mentally retarded, held a public rally at the capital in Austin and invoked the case of Mario Marquez, executed in 1995, as one of those 6 cases and stated that Marquez was exactly that kind of murderer which HB236 was designed to protect. Supporters of that bill could not have provided a better case for Texans to oppose this bill and for Governor Perry to veto it.

Marquez was angry that his wife was leaving him, so, in retaliation, he murdered his wife's 14-year-old niece, Rachel and his 18-year-old estranged wife, Rebecca. They were beaten and raped, orally, anally and vaginally, then strangled to death. Rebecca was sodomized with a large perfume bottle which was forced into her anus. Blood loss from both victims indicated that they were alive during these acts. Marquez then waited for his mother-in-law, to return home, beat and sexually assaulted her -- then presented the two brutalized bodies of the two girls to her -- as trophies for his anger.

There is little doubt but that he was also going to murder his mother-in-law, but Marquez' continued assault on her was interrupted and he fled from the scene.

Marquez's performance IQ was measured at 75 -- 16 points above the minimum number required to establish that arbitrary "mental retardation" standard, using the plus or minus 10 point variable. And Marquez's life and crimes, spanning many years, fully support that Marquez knew exactly what he was doing.

When given the facts of specific crimes, like Marquez's, many would agree with the jury -- that such mentally competent, guilty capital murderers should face the death penalty, as a sentencing option.

There are some addition considerations:

1) Many argue strenuously to halt execution of the "mentally retarded", yet they do nothing to properly define what "mentally retarded" means in a fashion reflecting a full understanding of the issues, much less do they discuss the premeditation, planning and consideration which the alleged "mentally retarded" murderers so often invested in the murders. A full accounting should be demanded in any public policy discussion, and

2) Many argue strenuously against a death penalty option for the mentally retarded, but they fail to tell us why such individuals should not be subject to execution, but should be subject to a life sentence. Is the murderer any less guilty or culpable for one sentence than the other? A jury may decide that the murderer deserves a lesser sentence, because of any mitigation which may be reflected by competency issues, but that decision is best made by the jury, which has all the case facts before it. . Much of the effort to exempt the "mentally retarded" from execution can best be described as another effort to reduce the application of a proper sentencing option by those who oppose executions under all circumstances.

3) In establishing a below 70 IQ number as the threshold for withholding a death sentence option, several important issues are often neglected a) the previously discussed issue of both the 10 point variable and the performance IQ issues, as well as b) when the IQ test was taken. If the test was taken after an arrest, then there is a strong likelihood that the arrested party would do everything possible to score as low as possible, as a self preservation issue. This would negate the reliability of the test. And as you can never be sure about that issue, under those circumstances, then other means will have to be used to establish competency and c) IQ tests results, with the same individual, can very greatly over time, well outside any 10 point variable. This directly goes to those states which have standards that say the test must have been administered prior to age 18. Both education and experience can increase IQ's over time. Therefore, that prior to age 18 rule may allow a competent murder to escape proper punishment, only because of an arbitrary and capricious standard, which had no relevance at the time of the murder. And, again, the distinction between general and performance IQ come into play, as well as all the other variables and limitations.

That is why the current system, as it now exists, is the best. Determine competency pre trial. Relive those issues again, at trial and on appeal. Establish if the defendant knew right from wrong, if the defendant can constructively participate in their own defense and establish if they understand the nature of there punishment. And review those issues, again, on appeal.

That appears to be the most responsible and honest method of reviewing these cases and issues. Any other method is more arbitrary and capricious. To date, there is nothing to indicate that a better system has been presented. If you review those state statutes which ban the death penalty for the "mentally retarded", you will find that virtually all of them have some problems which make their death penalty statutes more arbitrary and capricious and which do not reflect a full appreciation of the issues. In effect, what many of those states have done is to pass laws which will allow fully competent murderers to escape the most appropriate punishment consideration. Remember, these statutes are specifically directed against the death sentence, not lesser sentences.

And finally, to address the cruel and unusual punishment question. Based upon current law and legal opinion, at the US Supreme Court level, execution of the mentally retarded is not cruel and unusual punishment. But, in making such judgments, we should rely on a full review of the issues and not base our conclusions on emotion and incomplete and inaccurate presentations.