KCADP
Kentucky Coalition To Abolish The Death Penalty
NEWSLETTER NO. 8
March, 1989
American Bar Association calls
for ban on executing the mentally retarded
The following report was presented to the American Bar Association in February,
1989. It was submitted by Terence E McCarthy, Chairperson, Criminal
Justice Section and Clifford D. Stromberg, Chairperson, Individual Rights
and Responsibilities Section. It is reprinted here because it is succinct and
clear The resolution which followed was adopted by the A.B.A. House of
Delegates, February 7, 1989.
Executing a person with mental retardation violates
contemporary standards of decency. It is a practice opposed
by professional associations in the field of mental disability
and by a majority of supporters of the death penalty. It
is disproportionate to the individual’s level of personal
culpability and serves no valid penological purpose.
Regardless of the outcome of con-
stitutional litigation on this issue,
must have occurred before the age of 18.
(Persons with IQ scores between 70 and 85, who are
sometimes described by laypeople as “borderline retarded,”
are not within the definition of mental retardation. Such
individuals have a substantial mental disability that should
be considered as a mitigating circumstance in capital cases,
but they are not mentally retarded within the AAMR
definition, and are not within the scope of the proposed
ABA recommendation.)
The burden of persuasion on whether a defendant is
mentally retarded should be on the defendant.
In an earlier era in our history, people with mental
retardation were thought to be
it is a practice which the American
Bar Association should disapprove.
The ABAs Recommendation
would bar the execution of any
defendant who is mentally retarded,
It parallels the position that ABA
has taken for years in opposition
to the execution of individuals for
actions committed while they were
The universally accepted defini-
tion of mental retardation is that
established by the American As-
sociation on Mental Retardation
(AAMR):
Mental retardation refers to retardation.
significantly subaverage gen-
RESOLUTION
BE IT RESOLVED, That the American
bar Association urges that no person
with menta] retardation, as now defined
by the American Association on Mental
Retardation, should be sentenced to death
minors. or executed; and
BE IT FURTHER RESOLVED, That
the American Bar Association supports
enactment of legislation barring the
execution of defendants with mental
unusually prone to criminal acts
and were belicved to be responsible
for the majority of crimes in our
society. These attitudes have long
since been proven false.* The era
of eugenic sterilization and eugenic
segregation are long since past.
People with mental retardation are
not abnormally prone to criminality
or violence.
When people with mental retarda-
tion do commit crimes, they should
generally be held responsible for
their conduct. But, as the Supreme
Court has repeatedly observed,
“death is different.” The specter
ofa person with mental retardation
on Death Row is deeply disturbing
eral intellectual functioning
existing concurrently with
deficits in adaptive behavior
and manifested during the
developmental period."
“Significantly subaverage general intellectual function-
ing” is defined as an IQ of 70 or below? This means that
to fall within the professionally accepted definition of
mental retardation, an individual's intelligence quotient
must be 70 or below, the mental disability must exist
concurrently with behavioral difficulties, and this disability
to most Americans.
As in the case of capital punish-
ment and minors, there is widespread public sentiment for
banning the execution of any person with mental retarda-
tion. Scientific polling data indicate that a majority of
Americans, even in states that strongly support capital
punishment, oppose its imposition on defendants with
mental retardation.>
The current system of mitigation, (see ABA Standards
for Criminal Justice 7-9.3), and competence for capital
punishment, (see ABA Standards for Criminal Justice 7-
5.6), are not adequate to assure that people with mental
retardation will not be executed, (Cont. on page 2.)
Page 2
March, 1989
Approximately five of the 101 individuals executed since
Gregg y. Georgia have been mentally retarded. The only
case to achieve substantial local publicity about the
defendant’s mental disability was the execution of Jerome
Bowden in Georgia in 1986. It is significant that the
Georgia legislature, at its next session, passed a new
statute effectively outlawing the execution of people with
mental retardation.®
Congress has passed a similar measure in the capital
punishment provision of the Anti-Drug Abuse Act of 1988
(Pub. L. 100-690). On September 8, 1988, the house of
Representatives considered an amendment by Representa-
tive Sander Levin of Michigan, which provided “A
sentence of death shall not be carried out upon a person
who is mentally retarded.” The amendment was supported
in floor speeches by Representatives George Gekas of
Pennsylvania, Judd Gregg of New Hampshire, Arthur
Ravenel of South Carolina, and Steve Bartlett of Texas.
This represents the widest possible spectrum of political
opinion in the House, from liberal Democrats io conserva-
tive Republicans. The amendment passed by a unanimous
voice vote? On October 14, an identically worded
amendment passed unanimously in the Senate. President
Reagan signed the legislation containing the amendment.
Professionals and others with direct interest in people
with mental retardation have reached the same conclusion.
The American Association on Mental Retardation, the
oldest and largest professional organization in the field,
opposes the death penalty for persons with mental
retardation. AAMR’s amicus brief in Penry v. Lynaugh
(No. 87-6177) has been joined by ten other mental
disability groups, including the American Psychological
Association, the Association for Retarded Citizens of the
United States, the Association for Persons with Severe
Handicaps, the American Orthopsychiatric Association, the
National Association of Private Residential Resources, and
the National Association of Superintendents of Public
Residential Facilities for the Mentally Retarded.
There are several persuasive reasons for a ban on
executing people with mental retardation. One derives
from the Supreme Court’s Eighth Amendment doctrine of
proportionality. States may execute only those persons
whose culpability and moral blameworthiness are propor-
tional to the punishment.® The disabilities encountered by
all persons who are mentally retarded prevent them from
achieving that level of culpability. However moral
blameworthiness is measured or estimated, people with
mental retardation are never in the top one or two
percent of defendants convicted of murder in the level of
their personal culpability. This argument is made more
fully in AAMR’s amicus brief in Penry v. Lynaugh.
The strength of the proportionality argument is
has a mental age higher than 12°
In addition, the Court has held that “[t]here must be
a valid penological reason for choosing from among the
many criminal defendants the few who are sentenced to
death.” The Court has identified two only such objec-
tives -- retribution and deterrence. The Justicés have
held that retribution must be related to the individual’s
level of personal responsibility," and thus the analysis
parallels the proportionality doctrine. And the likelihood
that a mentally retarded individual will be deterred from
a criminal act because he knows that persons with his
disability may be executed, or the possibility that a
mentally typical person will be deterred by the spectacle
of the execution of a mentally retarded defendant are
hardly sufficiently plausible to justify the punishment.
The U.S. Supreme Court has granted certiorari in the
case of Penry v. Lynaugh on the issue of whether the
Eighth Amendment’s ban on cruei and unusual punish-
ment prohibits the execution of a defendant with mental
retardation. The Penry case also involves the issue of
appropriate jury instructions on the issue of mitigation,
and there is some likelihood, as a result, that the Court
will not reach the Eighth Amendment issue in this case.
Whatever the ultimate resolution of the Eighth
Amendment issue, it is important for the American Bar
Association to take a policy position in support of a ban
on executing mentally retarded defendants. States with
capital punishment will soon face the question of execut-
ing mentally retarded individuals. Their legislatures will
have before them the resolutions of the other relevant
professional organizations, as well as the recent enact-
ments by Congress and the Georgia legislature. The
position of the ABA on whether such an execution is
consistent with contemporary standards of justice would be
most important to their deliberations.
As it did in the case of juveniles, the American Bar
Association should make clear that a modern and en-
lightened system of justice cannot tolerate the execution
of an individual with mental retardation. (Notes, page 4.)
KENTUCKY ABOLITIONISTS should act now to
keep New York free of the Death Penalty. Gov. Cuomo
has vetoed S600/A1070 and needs to hold on to 51
Assemblymen/women to prevent an override. For $5.75
billed to your phone, call 1-800-257-4900 and ask for
Hotline #9497. Choose one of 3 pre-filed messages and
select one of the following persons to receive it: Aurelia
Greene, Edward Griffith, Alan G. Hevesi, Earlene Hill,
Morton C. Hillman, Maurice D. Hinchey, William B.
Hoyt, Rhoda S. Jacobs, Cynthia Jenkins, or G. Oliver
Koppell. All three messages are positively wordcd,
encouraging the above persons and thanking them for
their continued support in the abolitionist battle. If you
want, you can send a second telegram for $5,00.
March 1989
Page 3
Midwest Regional Conference
National Coalition to Abolish the Death Penalty
Bellarmine College
2001 Newburg Road, Louisville, Kentucky
June 2 - 3, 1989
Workshops and presentations cover the following topics:
* ANSWERING THE HARD QUESTIONS:
ARGUMENTS FOR ABOLITION
AMNESTY INTERNATIONAL CAMPAIGN 1989
ALTERNATIVES TO EXECUTIONS
DEMYSTIFYING THE APPEALS PROCESS
BUILDING A CAPITAL DEFENSE TEAM WITH
NON-LAWYER VOLUNTEERS
* LOBBYING THE LEGISLATOR
e THE TORCH OF CONSCIENCE CAMPAIGN
AND THE RELIGIOUS COMMUNITY
* THE QUESTION OF RACE AND
THE RACIAL JUSTICE ACT
* REACHING OUT TO VICTIMS: THE FRIENDS
OF SOLACE
+ ORGANIZING IN WIDER CIRCLES
SPECIAL FOR ATTORNEYS: 3 CLE’s for an added
$20.00. Topics: Coping with evidence in aggravation; jury
sélection techniques; building a capital defense team with
volunteers who are not attorneys.
KEYNOTE SPEAKERS: Mr. Jack Healy, Executive
Director of Amnesty International, USA, June 2 during
the evening banquet; and Sr, Helen Prejean, Pilgrimage
for Life, June 3 at the close of the conference.
Organizations who endorse the Conference:
Alliance Against Women’s Oppression
American Civil Liberties Union of Kentucky
Catholic Conference of Kentucky
Catholic Conference of Ohio
Central Presbyterian Church Peace & Justice Committee
Central Kentucky Council for Peace and Justice
Council on Peacemaking and Religion
Dominican Sisters, Cong. of St. Catharine of Sienna
Illinois Catholic Conference
Indiana Catholic Conference
Kansas Catholic Conference
Kentucky Alliance Against Racist and Political Repression
Kentucky Association of Criminal Defense Lawyers
Kentucky State NAACP Conference of Branches
League of Women Voters of Kansas
Metropolitan Louisville Women’s Political Caucus
Michigan Catholic Conference
Michigan Committee Against Capital Punishment
Nebraskans Against the Death Penalty
Network in Kentucky
Peace and Justice Commission, Archdiocese of Louisville
Sisters of Charity of Nazareth Executive Committee
Sisters of Mercy Cincinnati Province Justice Committee
Society of Friends, Lexington Meeting
Other endorsements are still welcomed!
REGISTRATION FORM
Name
Phone
Address
Zip
Choose the option which applies to you and return with check or money order made out to Kentucky Coalition to Abolish
the Death Penalty, 712 E. Muhammad Ali Boulevard, Louisville, KY 40202.
Option 1 (includes lodging, all meals, registration): $45.00
Option 2 (all meals, registration, NO LODGING): $35.00
Opiion 3 (Saturday only, registration, meals): $25.00
Option 4 (Banquet only, Friday evening 6:00 pm): $12.00
Check this space if you require vegetarian meals.
Attorneys: check here to earn 3 CLE’s: $20, plus option
chosen above.
Roommate Preference Smoke
Full details will be sent once the registration form is
received. Early registration really helps us plan to make
you comfortable. Need hospitality housing? Tell us now.
‘We will work hard to provide it. We must know this
early.
ul
Non-Smoke
Page 4 March, 1989
L American Association on Mental Retardation [previously “Deficiency”], Classification in Mental
Retardation 1 (H. Grossman ed. 1983).
2 Id.
3. Five Justices of the U.S. Supreme Court have referred to the history of mistreatment of people with
mental retardation in this country as “grotesque.” City of Cleburne v. Cleburne Living Center, 105 S.Ct.
3249, 3262 (1985) (Stevens, J., concurring), 105 S.Ct. at 3266 (Marshall, J., concurring in part and dissenting
in part).
4. Ellis and Luckasson, Mentally Retarded Criminal Defendants, 53 George Washington Law Review
414, 416-21 (1985); Biklen & Mlinarcik, Criminal Justice, Mental Retardation and Criminality: A Causal
Link?, 10 Mental Retardation and Developmental Disabilities 172 (1978).
S See, e.g., Gamino, “73% in Texas Poll Oppose Executing Retarded Inmates,” Austin American-
Statesman, November 15, 1988; Cambridge Survey Research, Inc., Attitudes in the State of Florida on the
Death Penalty: A Public Opinion Survey 7, 61 (1986); Blume and Bruck, Sentencing the Mentally Retarded
to Death: An Eighth Amendment Analysis, 41 Arkansas Law Review 725, 759-60 (1988).
6. Ga. Code Ann. § 17-7-131 (j) (1988 Supp.). “Georgia To Bar Executions of Mentally Retarded
Killers,” New York Times, April 12, 1988, at A26, Col. 4.
%. Congressional Record, September 8, 1988, at H 7282 through H 7283 (daily ed.). See generally
Congressional Record, August 11, 1988, at S 11606 through S 11607 (daily ed.) (Statement of Senator Paul
Simon).
8. Tison v. Arizona, 107 S.CT. 1676, 1687 (1987); Booth v. Maryland, 107 S.Ct. 2529 (1987); California
y. Brown, 107 S.Ct. 837, 841 (1987) (O’Connor, J., concurring); Enmund v. Florida, 458 U.S. 782 (1982).
9. AAMR, Classification in Mental Retardation 33 (H. Grossman ed. 1983). Cf. Thompson v.
Oklahoma, 108 S.Ct. 2687 (1988) (barring the execution of a defendant for an act committed before the
chronological age of 16).
10. Spaziano v. Florida, 468 U.S. 447, 460 n.7 (1984).
11. Enmund y. Florida, 458 U.S. 782, 800 (1982).
KCADP
KENTUCKY COALITION TO ABOLISH THE DEATH PENALTY
712 EAST MUHAMMAD ALI BOULEVARD
LOUISVILLE, KENTUCKY 40202
REGISTER NOW FOR THE JUNE 2 -3 NCADP MIDWEST DEATH PENALTY
CONFERENCE, BELLARMINE COLLEGE, LOUISVILLE, KENTUCKY. SEE PAGE 3.
