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
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
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
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
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.