Amicus Curiae Brief — Penry v. Lynaugh

Supreme Court of the United

OCTOBER TERM, 1988

JOHNNY PAUL PENRY,

Petitioner,

Vv.

JAMES A. LYNAUGH, DIRECTOR, TEXAS DEPARTMENT

OF CORRECTIONS,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AMERICAN ASSOCIATION ON MENTAL

RETARDATION, AMERICAN PSYCHOLOGICAL

ASSOCIATION, ASSOCIATION FOR RETARDED

CITIZENS OF THE UNITED STATES, THE

ASSOCIATION FOR PERSONS WITH SEVERE

HANDICAPS, AMERICAN ASSOCIATION OF

UNIVERSITY AFFILIATED PROGRAMS FOR THE

DEVELOPMENTALLY DISABLED, AMERICAN

ORTHOPSYCHIATRIC ASSOCIATION, NEW YORK

STATE ASSOCIATION FOR RETARDED CHILDREN,

INC., NATIONAL ASSOCIATION OF PRIVATE

RESIDENTIAL RESOURCES, NATIONAL ASSOCIATION

OF SUPERINTENDENTS OF PUBLIC RESIDENTIAL

FACILITIES FOR THE MENTALLY RETARDED,

MENTAL HEALTH LAW PROJECT, AND NATIONAL

ASSOCIATION OF PROTECTION AND ADVOCACY

SYSTEMS AS AMICI CURIAE IN SUPPORT

OF PETITIONER

Of Counsel: JAMEs W. ELLIS

BARBARA BERGMAN Counsel of Record

DONALD N. BERSOFF RUTH LUCKASSON

1117 Stanford, NE

Albuquerque, New Mexico 87131

(505) 277-2146

Counsel for Amici Curiae

WILSON - Eres Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

IN THE sep 9 1988

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ............22..2:ccsc0c0css00-0s

SUMMARY OF ARGUMENT ..............2..2:ccccccceeceeseeeees

ARGUMENT:

I.

Il.

ITI,

IV.

THE DISABILITIES THAT ACCOMPANY

MENTAL RETARDATION ARE DIRECTLY

RELEVANT TO THE ISSUE OF CRIMINAL

RESPONSIBILITY AND TO THE CHOICE OF

PUNISHMENT FOR THOSE CONVICTED OF

GUY iesithaisdinntnnascacincsichicdstpesteyadtinitihepnaiigeennemneeense

A. Mental Retardation Is A Substantial Disabil-

ity Which Impairs An Individual’s Capacity

To Understand And Control His Actions........

B. Mental Retardation Has Long Been Recog-

nized As Relevant To The Choice of Appro-

priate Punishment For Crime ........................

THE DEGREE OF REDUCTION IN MORAL

BLAMEWORTHINESS CAUSED BY A

DEFENDANT’S MENTAL RETARDATION

RENDERS IMPOSITION OF THE DEATH

PENALTY UNCONSTITUTIONAL ....000000000...

A. Punishment By Death Is Reserved For Those

Selected On The Basis Of Their Blameworth-

«Fs IE

B. The Death Penalty Is Disproportionate To

The Degree Of Culpability Of Any Defend-

ant With Mental Retardation .........................

A RULING THAT THE EIGHTH AMEND-

MENT BARS THE EXECUTION OF PEOPLE

WITH MENTAL RETARDATION IS APPRO-

PRIATE AND NECESSARY ............. Leiatnmalivedsn

EXECUTION OF A PERSON WITH MENTAL

RETARDATION SERVES NO VALID PENO-

EE WITTE teiretitpeiccidsstiesctiiiicatensibenpadesineniis

IE sestitnnderecsenceaeniinaiecmnntaniqeaniscdentgunds enitadienis

SET |, <csitssiassiusteentiaianetcicetessitititibiiabpamanniischtaniaiibaaaibiaiimeiinds

5

1]

11

15

16

19

20

la

ii

TABLE OF AUTHORITIES

CASES Page

Booth v. Maryland, 107 S. Ct. 2529 (1987) ............... 12

California v. Brown, 107 8. Ct. 837 (1987)....... 11-12, 12-13

City of Cleburne v. Cleburne Living Center, 473

ES ESTE a Oe ee 6

Coker v. Georgia, 433 U.S. 584 (1977) ...... 5, 16, 18, 19, 20

Coleman v. United States, 357 F.2d 563 (D.C. Cir.

RR ee ah a 9

Commonwealth v. Green, 396 Pa. 137, 151 A.2d

Re Pe a 6

Commonwealth v. Irelan, 341 Pa. 43, 17 A.2d 897

RES SE ee ee Ae — Se 10

Enmund v. Florida, 458 U.S. 782 (1982) ...... 12, 16, 18, 19

Ford v. Wainwright, 477 U.S. 399 (1986) ..W.... 19-20

Franklin v. Lynaugh, 108 8. Ct. 2320 (1988)........ 18

Furman v. Georgia, 408 U.S. 238 (1972) |............... 11

Giles v. State, 261 Ark. 413, 549 S.W.2d 479

SRE tS RS ce 10

Hitchcock v. Dugger, 107 S. Ct. 1821 (1987)... 6

Lockett v. Ohio, 438 U.S. 586 (1978) —.....00000......... 10

Miller v. State, 37% So. 2d 882 (Fla. 1979) 0... 18

Pickett v. State, 37 Ala. App. 410, 71 So. 2d 102

EER SET A a EE Ee a 15

Regina v. Higginson, 174 Eng. Rep. 743 (1843)... 19

Spaziano v. Florida, 468 U.S. 447 (1984) . 11

State v. Behler, 65 Idaho 464, 146 P.2d 338 (1944). 10

State v. Hall, 176 Neb. 295, 125 N.W.2d 918

A a Sn 10

Sumner v. Shuman, 107 S. Ct. 2716 (1987) . ASS 11

Thomas v. State, 97 Tex. Crim. 432, 262 S.W. 84

ESE ES Ey Oe: <A en eee 9

Thompson v. Oklahoma, 108 8S. Ct. 2687 (1988)... passim

Tison v. Arizona, 107 8S. Ct. 1676 (1987) ............. 12,19

Woodson. v. North Carolina, 428 U.S. 280 (1976). 11

STATUTES

Ga. Code Ann. § 17-7-131(j) (1988 Supp.) —........... 17

18 U.S.C. § 17(a) (Supp. TV 1986)... . 9

iii

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

A.B.A. Standards for Criminal Justice 17-5.6

een

A.B.A. Standards for Criminal Justice 7-9.3

EE eT

American Association on Mental Deficiency, Clas-

sification in Mental Retardation (H. Grossman,

Oe I cereteieprnciserectecsetenttscneseserentenssenieneeenneenence

Biklen & Mlinarcik, Criminal Justice, Mental Re-

tardation and Criminality: A Causal Link?, 10

Mental Retardation and Developmental Disabili-

ties 172 (J. Wortis ed. 1978) —..........----en...

4 W. Blackstone, Commentaries *24 00000000000...

Blume & Bruck, Sentencing the Mentally Retarded

to Death: An Eighth Amendment Analysis, 41

PR

J. Conroy & V. Bradley, Pennhurst Longitudinal

Study: A Renort of Five Years of Research and

TA

M. Dalton, The Countrey Justice (1619 & photo.

I ED entrecercrenepetennnsenecmmennetnee

Ellis & Luckasson, Mentally Retarded Criminal

Defendants, 53 Geo. Wash. L. Rev. 414 (1985)..

Georgia To Bar Executions of Mentally Retarded

Killers, N.Y. Times, Apr. 12, 1988, at A26, col.

Haywood & Switzky, /ntrinsic Motivation and Be-

havior Effectiveness in Retarded Persons, 14

Int’! Rev. Research Mental Retardation 2 (N.

Ellis & N. Bray eds. 1986) .....................................

Israely, The Moral Development of Mentally Re-

tarded Children: Review of the Literature, 14

i OE) _) eee

S. Kirk & J. Gallagher, Educating Exceptional

Children (1983) ................. ieiidiadeibi en eee tee a

Page

~

18

14

iv

TABLE OF AUTHORITIES—Continued

Kohlberg, Moral Stages and Moralization: The

Cognitive-Developmental Approach, in Moral

Development and Behavior: Theory, Research

and Social Issues 31 (T. Lickona ed. 1976) ..........

K. Lewin, A Dynamic Theory of Personality

CETTE ciicscisinitibintneciiadaniensditpibidiiicadilimeaeidadialeCi titan natassaes

Lind & Smith, Moral Reasoning and Social Func-

tioning Among Educable Mentally Handicapped

Children, 10 Austl. & N. Zealand J. Develop-

. mental Disabilities 209 (1984) —......002.....

Litrownik, Freitas, & Franzini, Self-Regulation in

Mentally Retarded Children: Assessment and

Training of Self-Monitoring Skills, 82 Am. J.

I es

Lives in Process: Mildly Retarded Adults in a

Large City (R. Edgerton ed. 1984) 2.000000...

Mahoney & Mahoney, Self Control Techniques with

the Mentally Retarded, 42 Exceptional Children

el A aie

C. Mercer & M. Snell, Learning Theory Research

in Mental Retardation (1977) ..............-.000000......

J. Piaget, The Moral Judqment of the Child (Free

EE a a

Polloway & Smith, Changes in Mild Mental Re-

tardation: Population, Programs, and Perspec-

tives, 50 Exceptional Children 149 (1983) __

Rueda & Zucker, Persuasive Communication

Among Moderctely Retarded and Nonretarded

Children, 19 Educ. & Training Ment. Retarded

Be ED cdtrntecideieitenin

S. Sarason, Psychological Problems in Mental De-

SD Se is I iettcieeteecntineeinceieeiinitens asinine

Spitz & Borys, Performance of Retarded Adoles-

cents and Nonretarded Children on One- and

Two-Bit Logical Problems, 23 J. Exper. Child

. § f. ena a eer reece

Page

14

14

14

v

TABLE OF AUTHORITIES—Continued

Spitz, Intellectual Extremes, Mental Age, and the

Nature of Human Intelligence, 28 Merrill-Palmer

Q. 167 (1982) ..........

Systematic Instruction of Persons with Severe

Handicaps (M. Snell 3d ed. 1987) ....000000000

D. Wechsler, The Measurement and Appraisal of

Adult Intelligence (4th ed. 1958) 0.00

White, Critical Influences in the Origins of Com-

petence, 21 Merrill-Palmer Q. 243 (1975) ..........

ee ee ed

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-6177

- JOHNNY PAUL PENRY,

Petitioner,

Vv.

JAMES A. LYNAUGH, DIRECTOR, TEXAS DEPARTMENT

OF CORRECTIONS,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AMICI CURIAE AMERICAN ASSOCIATION

ON MENTAL RETARDATION, ET AL.

IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

Amici curiae are professional and voluntary associa-

tions interested in people with mental retardation. They

represent a broad spectrum of viewpoints within the field

of mental retardation.’

THE AMERICAN ASSOCIATION ON MENTAL

RETARDATION (AAMR), previously named the Amer-

1 The Petitioner and Respondent in this case have consented to the

filing of this brief.

2

ican Association on Mental Deficiency, is the nation’s

oldest and largest interdisciplinary organization of pro-

fessionals in the field of mental retardation. Founded in

1876, AAMR kas long been interested in legal issues in-

volving people with mental retardation and has appeared

before this Court as amicus curiae in cases such as City

of Cleburne v. Cleburne Living Center, 473 U.S. 432

(1985) and Bowen v. American Hospital Association, 476

U.S. 610 (1986).

THE AMERICAN PSYCHOLOGICAL ASSOCIA-

TION (APA) is a nonprofit, scientific and professional

organization. With over 70,000 members, it is the major

association of psychologists in the United States. This

case is of special interest to the APA Division on Mental

Retardation, as well as thousands of other APA members

who are engaged in scholarly research and the develop-

ment of people with mental retardation.

THE ASSOCIATION FOR RETARDED CITIZENS

OF THE UNITED STATES (ARC) is a national volun-

tary association of parents, families and friends of people

with mental retardation, along with members who have

mental retardation. ARC, which has a national member-

ship of over 160,000 people organized in some 1,300 local

and state-wide chapters, is directed and led by active

volunteer parents.

THE ASSOCIATION FOR PERSONS WITH SE-

VERE HANDICAPS (TASH) is an organization of over

8,000 teachers, researchers, administrators, parents, med-

ical personnel, and other professionals dedicated to mak-

ing appropriate education and services available to per-

sons who experience severe disabilities.

THE AMERICAN ASSOCIATION OF UNIVERSITY

AFFILIATED PROGRAMS FOR THE DEVELOP-

MENTALLY DISABLED (AAUAP) is a national or-

ganization of university-based research, training, and

model demonstration programs in the field of mental

retardation.

3

|

THE AMERICAN ORTHOPSYCHIATRIC ASSOCIA-

TION is an interdisciplinary professional organization of

more than 10,000 mental health professionals, including

psychiatrists, psychologists, social workers, educators and

allied professionals concerned with the problems, causes,

and treatment of mental disabilities, including mental

retardation.

THE NEW YORK STATE ASSOCIATION FOR RE-

TARDED CHILDREN, INC. (NYSARC) is a state-wide

organization of 65 chapters and 53,000 members, includ-

ing parents and others concerned with the needs of people

who have mental retardation. NYSARC provides services

to 25,000 clients on a daily basis and is also an advocacy

organization. (NYSARC is not affiliated with the Associa-

tion for Retarded Citizens of the United States.)

THE NATIONAL ASSOCIATION OF PRIVATE

RESIDENTIAL RESOURCES represents approximately

650 agencies in 49 states and the District of Columbia

that together provide residential services to more than

40,000 people with mental retardation and other develop-

mental disabilities. Members offer a full range of resi-

dential services in a variety of settings designed to en-

hance the development and independence of those served.

THE NATICNAL ASSOCIATION OF SUPERIN-

TENDENTS (:* PUBLIC RESIDENTIAL FACILI-

TIES FOR THE MENTALLY RETARDED is composed

of approximately 200 directors of public facilities which

serve people with mental retardation.

THE MENTAL HEALTH LAW PROJECT is a

Washington, D.C.-based public interest organization

founded in 1972 to advocate the rights of children and

adults with mental disabilities. It has brought major

cases decided by this Court establishing the rights of

people with mental disebilities, including Addington v.

Texas, O’Connor v. Donaldson, and Bowen v. City of New

York. It has participated as amicus curiae in this Court

in more thar a dozen additional cases.

4

THE NATIONAL ASSOCIATION OF PROTECTION

AND ADVOCACY SYSTEMS represents Protection and

Advocacy systems in 50 states and six territories, created

pursuant to Section 113 of the Developmental Disabilities

Assistance and Bill of Rights Act, 42 U.S.C. § 6042

(Supp. II 1982). These agencies have the statutory man-

date to advocate for the rights of persons with develop-

mental disabilities, including mental retardation.

Amici agree with Petitioner that he is entitled to a

reversal on the first question on which certiorari was

granted, because the Texas system does not allow jurors

to give adequate consideration to mental retardation as

a mitigating factor, but amici will limit this brief to an

analysis of whether the execution of a person with men-

tal retardation is invariably a violation of the Eighth

Amendment, as applied to the states by the Fourteenth

Amendment.

SUMMARY OF ARGUMENT

The Eighth Amendment limits the imposition of the

death penalty to those defendants whose blameworthiness

is proportional to society’s most extreme and irrevocable

sanction. This Court has held death to be a dispropor-

tionate punishment where the characteristics of the of-

fense or of the offender did not match the high level of

culpability required by the Constitution.

Capital defendants who have mental retardation lack ©

this constitutionally required level of blameworthiness.

The effects of their disability in the areas of cognitive

impairment, moral reasoning, control of impulsivity, and

the ability to understand basic relationships between

cause and effect make it impossible for them to possess

that level of culpability essential in capital cases.

The execution of a person with mental retardation,

such as Johnny Paul Penry, cannot serve any valid peno-

logical purpose, and as a result it is “nothing more than

the purposeless and needless imposition of pain and suf-

5

fering.” Coker v. Georgia, 433 U.S. 584, 592 (1977).

Such an execution offends modern standards of decency.

ARGUMENT

I. THE DISABILITIES THAT ACCOMPANY MENTAL

RETARDATION ARE DIRECTLY RELEVANT TO

THE ISSUE OF CRIMINAL RESPONSIBILITY AND

TO THE CHOICE OF PUNISHMENT FOR THOSE

CONVICTED OF CRIMES.

A. Mental Retardation Is A Substantial Disability

Which Impairs An Individual’s Capacity To Under-

stand And Control His Actions.

Every individual who has mental retardation experi-

ences a substantial disability in cognitive ability and

adaptive behavior. The universally accepted definition re-

quires that any person who is classified as mentally re-

tarded must have “significantly subaverage general in-

tellectual functioning existing concurrently with deficits

in adaptive behavior” and requires that the disability

must have been “manifested during the developmental

period.”” American Association on Mental Deficiency [now

Retardation], Classification in Mental Retardation 1 (H.

Grossman ed. 1983) (hereafter cited as “AAMR, Classi-

fication”). This means that a mentally retarded individ-

ual’s measured intelligence is at least two standard devi-

ations below the average person’s.*

2 General intellectual functioning is measured by IQ tests, and to

be classified as having mental retardation, a person generally must

score below 70 (depending on which test is employed). The average

IQ for the overall population is 100; more than 97 percent of all per-

sons score above 70.

Persons with IQ scores between 70 and 85 are sometimes errone-

ously described as having “borderline retardation,” but this classifi-

cation has long since been abandoned by professionals in the field.

AAMR, Classification at 6. Individuals with IQ scores in the 70s

and 80s, while not mentally retarded, do have reduced cognitive abil-

ity, although the reduction is not as severe as for those who have

6

People with mental retardation are capable of learn-

ing, working, and living in their communities. See gen-

erally J. Conroy & V. Bradley, Pennhurst Longitudinal

Study: A Report of Five Years of Research and Analy-

sis (1985); Systematic Instruction of Persons with Se-

vere Handicaps (M. Snell 3d el. 1987). Special educators

and other professionals have made substantial advances

in developing techniques to assist people with mental re-

tardation, and legislatures have acted to attempt to as-

sist such individuals. City of Cleburne v. Cleburne Liv-

ing Center, 473 U.S. 432, 444 (1985). But advances in

our capacity to help people with this disability do not

change the reality that mental retardation is a substan-

tial disability and that people who have mental retarda-

tion “have a reduced ability. to cope with and function in

the everyday world.” Cleburne, 473 U.S. at 442.

This reduced ability is found in every dimension of the

individual’s functioning, including his language, commun-

ication, memory, attention, ability to control impulsivity,

moral development, self-concept, self-perception, suggest-

ibility, knowledge of basic information, and general mo-

tivation. Among the many substantial intellectual im-

pairments resulting from mental retardation, the most

serious occur in logical reasoning, strategic thinking, and

foresight. Spitz, Intellectual Extremes, Mental Age, and

the Nature of Human Intelligence, 28 Merrill-Palmer Q.

167, 178 (1982). The ability to anticipate consequences

is a skill requiring intellectual and developmental ability.

White, Critical Influences in the Origins of Competence,

21 Merrill-Palmer Q. 243, 246 (1975). A defendant in a

mental retardation. Mental disability that falls short of mental

retardation should be considered as a mitigating circumstance at

the penalty phase of capital trials, just as the youth of a person who

is 19 or 20 should be considered. See, ¢.g., Hitchcock v. Dugger, 107

S. Ct. 1821, 1824 (1987); see also Commonwealth v. Green, 396 Pa.

137, 151 A.2d 241 (1959) (chronological age of 15 not enough to

preclude death penalty, but an 1Q of 80 tips the balance to require

life imprisonment).

7

capital case whose understanding of causation and ability

to predict consequences are substantially limited by men-

tal retardation lacks an essential ingredient of culpability.

The problems caused by a mentally retarded defendant’s

substantial intellectual deficits are aggravated by intellec-

tual rigidity, which is often demonstrated by an impaired

ability to learn from mistakes and a pattern of persisting

in behaviors even after they have proven counterproduc-

tive or unsuccessful. See generally K. Lewin, A Dynamic

Theory of Personality (1936); S. Sarason, Psychological

Problems in Mental Deficiency (3d ed. 1959); Rueda &

Zucker, Persuasive Communication Among Moderately

Retarded and Nonretarded Children, 19 Educ. & Training

Ment. Retarded 125 (1984). One feature of this rigidity

is that a person who has mental retardation often cannot

independently generate in his mind a sufficient range of

behaviors from which to select an action appropriate to

the situation he faces (particularly a stressful situation).

A related consequence of mental retardation is impair-

ment in the ability to control impulsivity. See S. Kirk & J.

Gallagher, Educating Exceptional Children 144 (1983) ;

Litrownik, Freitas, & Franzini, Self-Regulation in Men-

tally Retarded Children: Assessment and Training of

Self-Monitoring Skills, 82 Am. J. Ment. Defic. 499 (1978) ;

Mahoney & Mahoney, Self Control Techniques with the

Mentally Retarded, 42 Exceptional Children 338 (1976).

This appears to be related to problems that people with

mental retardation encounter in attention span, attention

focus, and selectivity in the attention process. See generally

C. Mercer & M. Sne!!, Learning Theory Research in Men-

tal Retardation 94-141 (1977). Such an impairment in

the area of impulsivity is, of course, directly relevant to

the level of an individual’s ability to conform his conduct

to the law’s requirements and therefore to the degree of a

defendant's culpability.

8

Moral development is also affected by mental retarda-

tion. It is widely accepted by researchers that moral rea-

soning ability develops in stages, incrementally over time,

and is dependent on an individual’s intellectual ability

and developmental level. J. Piaget, The Moral Judg-

ment of the Child (Free Press ed. 1965); Kohlberg,

Moral Stages and Moralization: The Cognitive Develop-

mental Approach, in Moral Development and Behavior:

Theory, Research and Social Issues 31 (T. Lickona ed.

1976). Thus, mental retardation limits the ability of in-

dividuals to reach full moral reasoning ability. See Is-

raely, The Moral Development of Mentally Retarded

Children: Review of the Literature, 14 J. Moral Educ.

33 (1985); Lind & Smith, Moral Reasoning and Social

Functioning Among Educable Mentally Handicapped

Children, 10 Austl. & N. Zealand J. Developmental Dis-

abilities 209 (1984). This does not mean, of course, that

people with mental retardation are immoral or that they

should escape responsibility for their actions. But it does

mean that where mental retardation has placed an upper

limit on a defendant’s attainment of full moral reasoning

ability, he cannot be held to have that level of culpability

that would justify punishment by death.

Nor do amici contend that people with mental retarda-

tion are unusually likely to commit crimes.’ Most people

with mental retardation are law abiding. A complex mix

of environmental influences and individual differences un-

related to intelligence determines whether individuals en-

gage in criminal acts. But those individuals with mental

retardation who do commit crimes do so with a limited

* The false belief, widely held in the early years of this century,

that mental retardatio: was a cause of much of society’s criminality

is now understood to be a result of the eugenics hysteria of that

era. Biklen & Mlinarcik, Criminal Justice, Mental Retardation and

Criminality: A Causal Link?, 10 Mental Retardation and Develop-

mental Disabilities 172 (J. Wortis ed. 1978); Ellis & Luckasson,

Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414,

425-26 (1985).

understanding of causes and effects and a reduced ability

to govern their own behavior.

A minimal level of cognitive ability and moral reason-

ing development are necessary for the level of culpability

that will satisfy the requirements of the Eighth Amend-

ment in capital cases. Defendants with mental retarda-

tion have serious impairments in intellectual and moral

reasoning, strategic thinking, and the ability to foresee

consequences. The combination of these substantial limi-

tations is directly relevant to the degree of the disabled

defendant’s moral culpability for his criminal actions.

B. Mental Retardation Has Long Been Recognized As

Relevant To The Choice Of Appropriate Punishment

For Crime.

For centuries, Anglo-American law has accepted the

principle that the degree of criminal culpability of people

with mental retardation is reduced by the effect of their

disability. The common law exempted “idiots” from crim-

inal responsibility. 4 W. Blackstone, Commentaries *24;

M. Dalton, The Countrey Justice 223 (1619 & photo. re-

print 1973). When English law adopted the M’Naghten

test for insanity, courts almost immediately extended its

applicability to mentally retarded defendants. Regina v.

Higginson, 174 Eng. Rep. 743 (1843). The modern Amer-

ican formulations of the insanity defense almost invari-

ably speak in terms of “mental disease or defect,” the

latter referring to defendants with mental retardation.

See, e.g., 18 U.S.C. $17(a) (Supp. IV 1986). Similarly,

the weight of authority holds that even when it does not

constitute a complete defense, a defendant’s mental retar-

dation should be taken into account as a mitigating fac-

tor in determining an appropriate sentence. See, e¢.g.,

Coleman v. United States, 357 F.2d 563, 569 (D.C. Cir.

1965); Thomas v. State, 97 Tex. Crim. 432, 262 S.W. 84

(1924) (evidence of “a low order of mentality”) ; A.B.A.

Standards for Criminal Justice 7-9.3 (1984). See gen-

10

erally Lockett v. Ohio, 438 U.S. 586 (1978) (“mental

deficiency” was one of the mitigating factors that had

been prescribed by the Ohio statute). Even before this

Court held that the Constitution required consideration

of mitigating evidence, state appellate courts reduced sen-

tences of death to life imprisonment on the basis of the

mitigating effect of a defendant’s mental retardation.

E.q. State v. Behler, 65 Idaho 464, 146 P.2d 338 (1944) ;

State v. Hall, 176 Neb. 295, 125 N.W.2d 918 (1964).

Cf. Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977)

(post-Gregg).

The reason that mental retardation has been so widely

accepted as relevant to the degree of punishment, whether

through a finding of nonresponsibility or mitigation, is

that courts and legislatures have recognized the disabil-

ity’s relationship to the degree of a defendant’s blame-

worthiness. For example, the Supreme Court of Penn-

sylvania vacated a death sentence because expert testi-

mony showed that the defendant’s subnormal intelligence

produced “a smaller range of selectivity as to action than

would be had by the average human being” (quoting ex-

pert testimony) and meant that the defendant lacked “the

ability to think things through to a logical conclusion.”

Commonwealth v. Irelan, 341 Pa. 43, 46, 17 A.2d 897,

898 (1941) (involving a defendant whose mental disabil-

ity apparently was less severe than actual mental retar-

dation).

American law has never held, nor do amici contend,

that people with mental retardation cannot be held re-

sponsible or punished for criminal acts they commit.

Some defendants who have mental retardation are en-

titled to acquittal because the effect of their disability

matches the jurisdiction’s test for insanity or because

they lack the requisite mens rea. Other mentally re-

tarded defendants properly can be convicted and subject

to appropriate punishment. But mental retardation al-

ways involves a substantial impairment that reduces a

ll

defendant’s level of blameworthiness and moral culpabil-

ity for a capital offense.

Il. THE DEGREE OF REDUCTION IN MORAL BLAME-

WORTHINESS CAUSED BY A DEFENDANT'S

MENTAL RETARDATION RENDERS IMPOSITION

OF THE DEATH PENALTY UNCONSTITUTIONAL.

A. Punishment By Death Is Reserved For Those Se-

lected On The Basis Of Their Blameworthiness And

Moral Guilt.

Unique considerations attend issues that determine

which defendants may be put to death. As this Court has

observed, “the penalty of death is qualitatively different

from a sentence of imprisonment, however long. Death,

in its finality, differs more from life imprisonment than

a 100-year prison term differs from one of only a year or

two.” Woodson v. North Carolina, 428 U.S. 280, 305

(1976) (plurality opinion). Therefore, the flexibility

that states have in devising appropriate sentences for

noncapital cases is more strictly circumscribed in cases

which may result in a death sentence.

Under modern capital punishment statutes, only a

small minority of those individuals who commit willful

criminal homicide are actually sentenced to death. See

Thompson v. Oklahoma, 108 S. Ct. 2687, 2697 (1988)

(plurality opinion). This Court has made clear that

States cannot select candidates for the death penalty in

an arbitrary or unprincipled fashion or solely on the

basis of the offense committed. Furman v. Georgia, 408

U.S. 238 (1972); Sumner ». Shuman, 107 S. Ct. 2716

(1987). “There must be a valid penological reason for

choosing from among the many criminal defendants the

few who are sentenced te death.” Spaziano v. Florida,

468 U.S. 447, 460 n.7 (1984).

This Court’s Eighth Amendment opinions make clear

that the decision to impose the death penalty must be

“directly related to the personal culpability of the crimi-

12

nal defendant.” California v. Brown, 107 S. Ct. 837,

841 (1987) (O’Connor, J., concurring). The Court has

reversed death sentences that were based on factors un-

related to the defendant’s blameworthiness. Booth v.

Maryland, 107 S. Ct. 2529 (1987). The degree of a de-

fendant’s blameworthiness and moral culpability are thus

the key criteria for determining who may be put to death

and who may not. Enmund v. Florida, 458 U.S. 782

(1982).*

A principal component of any defendant’s culpability

is his mental ability and state of mind at the time of

the offense. This Court has observed that:

A critical facet of the individualized determination

of culpability required in capital cases is the mental

state with which the defendant commits the crime.

Deeply ingrained in our legal tradition is the idea

that the more purposeful is the criminal conduct,

the more serious is the offense, and, therefore, the

more severely it ought to be punished.

Tison v. Arizona, 107 S. Ct. 1676, 1687 (1987).

The obverse is equally true; a substantial reduction in

the purposefulness ef a defendant’s criminal acts or im-

pairment in his comprehension of them and their con-

sequences must surely indicate that a less severe penalty

is warranted. Cf. Thompson v. Oklahoma, 108 S. Ct.

2687, 2698-99 (1988) ‘plurality opinion). As Justice

O'Connor has observed, our society long ago agreed “that

defendants who commit criminal acts that are attribut-

able to . . . mental problems[] may be less culpable than

defendants who have no such excuse. This emphasis on

culpability in sentencing decisions has long been reflected

* Tison v. Arizona, 107 S. Ct. 1676 (1987), which distinguished

Enmund, does not weaken its central holding that a defendant's

moral culpability is the key criterion for imposing the death penalty.

In Tisen, the Court found that the defendants’ conduct was “suffi-

cient to satisfy the Enmund culpability requirement.” 107 S. Ct.

at 1688.

13

in Anglo-American jurisprudence.” California v. Brown,

107 S. Ct. 837, 841 (1987) (O’Connor, J., concurring).

Mental retardation significantly affects the degree of

purposefulness and impairs the comprehension of every

defendant who has the disability and commits a capital

offense.

B. The Death Penalty Is Disproportionate To The De-

gree Of Culpability Of Any Defendant With Mental

Retardation.

No defendant who has mental retardation is “capable

of acting with the degree of culpability that can justify

the ultimate penalty.” Thompson v. Oklahoma, 108 S. Ct.

2687, 2692 (1988) (plurality opinion).

Amici acknowledge that there is substantial variation

among people with mental retardation regarding the de-

gree of their disability and its effect on their reasoning

capacity and adaptive behavior. Individuals with IQs in

the 50s or 60s differ substantially from persons with

IQs in the range of “profound” mental retardation. But

this variation would be relevant to the Eighth Amend-

ment issue only if some individuals in the “mild” mental

retardation category had such minimal disabilities that

they were capable of the level of culpability and moral

blameworthiness required for the death penalty. This

5 The AAMR classification system divides people with mental

retardation into four categories: mild, moderate, severe and pro-

found. “Mild” mental retardation includes individuals with IQ

scores between approximately 50 or 55 and 70. “Moderate” mental re-

tardation includes those whose IQ scores are between approximately

35 or 40 and 50 or 55. (The precise boundaries depend on the

particular intelligence test that is employed.) AAMR, Classification

at 13. “[C)riminal justice personnel unfamiliar with this classifica-

tion scheme may find the labels of ‘mild’ and ‘moderate’ to be

euphemistic descriptions of individuals at those levels of disability.”

Ellis & Luckasson, Mentally Retarded Criminal Defendants, 5° Geo.

Wash. L. Rev. 414, 423 (1985). Approximately 89 percent of people

who have mental retardation fall within the “mild” mental retarda-

tion category.

14

is not true. The highest functioning individuals in the

“mild” mental retardation category have substantial

cognitive and behavioral disabilities. See Polloway &

Smith, Changes ir Mild Mental Retardation: Population,

Programs, and Perspectives, 50 Exceptional Children 149

(1983); Lives in Process: Mildly Retarded Adults in a

Large City (R. Edgerton ed. 1984).

Comparison with nonretarded teenagers may illuminate

this issue.* Most teenagers are of average intelligence,

® The question upon which this Court granted certiorari is framed

in terms of “an individual with the reasoning capacity of a seven

year old.” This is similar to the concept of mental age, a tool used

in the field of mental retardation to describe the severity of an

individual’s disability. Mental age is calculated as the chronological

age of nonretarded children whose average IQ test performance is

equivalent to that of the individual with mental retardation. See

D. Wechsler, The Measurement and Appraisal of Adult Intelligence

24 (4th ed. 1958). The equivalence between nonretarded children

and retarded adults is, of course, imprecise. An individual’s mental

age can simultaneously underestimate and overestimate attributes

of the adult to whom it is applied. An adult will have the physical

development and some of the interests and experiences of his non-

disabled age peers; mental age suggests underestimation in these

areas. But mental age substantially overestimates important

problem-solving abilities. Mental age markedly overstates the abil-

ity of adults with mental retardation to use logic and foresight in

solving problems. See, e.g., Spitz & Borys, Performance of Retarded

Adolescents and Nonretarded Children on One- and Two-Bit Logical

Problems, 23 J. Exper. Child Psychol. 415, 428 (1977); Haywood &

Switzky, Intrinsic Motivation and Behavior Effectiveness in Re-

tarded Persons, 14 Int'l Rev. Research Mental Retard’n 1 (N. Ellis

& N. Bray eds. 1986). See generally Spitz, Intellectual Ertremes,

Mental Age, and the Nature of Human Intelligence, 28. Merrill-

Palmer Q. 167, 178 (1982).

Courts appear to have grasped intuitively the strengths and weak-

nesses of mental age as an estimation of disability. They have

rejected claims that an adult with a mental age below 12 auto-

matically lacks criminal responsibility because children of a similar

chronological age are deemed incapable of criminal! intent. But

courts have frequently used mental age as a shorthand description

of an individual's level of reasoning ability when discussing issues

15

and a minority (as with any age group) have superior

intelligence. The common trait of teenagers is relative

immaturity (although a few are unusually mature or

sophisticated). Thompson v. Oklahoma, 108 S. Ct. 2687,

2709 (1988) (O’Connor, J., concurring in the judgment).

But their lives have been lived with varying degrees of

mental ability, and those varying abilities produce dif-

ferences in their life experiences. By contrast, people

with mental retardation never have average, let alone

superior, intelligence. The result of this impairment is

that their abilities to comprehend concepts such as causa-

tion will vary but will never rise above a certain ceiling.

The substantial variation among people with mental re-

tardation always occurs below that ceiling. Thus, all

persons with mental retardation lack that level of ability

that would allow them to be capable of the level of cul-

pability required for the death penalty.

The essence of amici’s argument is not that jurors, or

this Court, should feel sorry for capital defendants with

mental retardation and as a result exempt them from

the death penalty. Some jurors may reach that conclu-

sion after hearing evidence about a defendant’s disability

in argument for mitigation. Rather, amici’s Eighth

Amendment argument is wholly different. The nature of

mental retardation is sufficiently severe that any person

who has that disability and commits a capital offense

lacks, by definition, that level of culpability that would

allow the state to take his life. Therefore, the case in-

volving people with mental retardation bears no resem-

blance to hypothetical arguments that “blind people... .

or white-haired grandmothers ... or mothers of two-

year-olds” or “other appealing groups” should be spared

from execution. Thompson v. Oklahoma, 108 8. Ct. 2687,

2721 (1988) (‘Sealia, J., dissenting). None of these

such as voluntariness of confessions, competence to stand trial,

mitigation, and the insanity defense. See, ¢.g., Pickett v. State, 37

Ala. App. 410, 71 So. 2d 102 (1955).

16

groups uniformly lacks the ability necessary to achieve

the Eighth Amendment’s required level of culpability.

Amici’s argument arises not from the “appeal” or sym-

pathetic character of people with mental retardation, but

rather from the real and practical effects of their dis-

ability.

Ill. A RULING THAT THE EIGHTH AMENDMENT

BARS THE EXECUTION OF PEOPLE WITH MEN-

TAL RETARDATION IS APPROPRIATE AND

NECESSARY.

This Court has held that the death penalty violates

the Eighth Amendment if it is disproportionate to the

circumstances of the case for which it is prescribed. Most

frequently, this is because of characteristics of the of-

fense. Coker v. Georgia, 433 U.S. 584 (1977); Enmund

v. Florida, 458 U.S. 782 (1982). The death penalty may

also be excessive and therefore unconstitutional because

of characteristics of the defendant for whom it is pro-

posed. Thompson v. Oklahoma, 108 S.Ct. 2687 (1988).

Although the Court has repeatedly emphasized the im-

portance of individualized determinations of culpability

through the system of weighine aggravating and mitigat-

ing circumstances, each of these holdings is categorical

in nature. It is significant that in each instance, the

claim of disproportionality was available in individual

eases as an <re-yment for mitigation. The cases reached

this Court. a .d merited its attention, only because the

system of considering mitigating circumstances did not

invariably preclude the death penalty under the circum-

stances at issue. Even if most jurors ‘or most voters

or legislators! would conclude, if asked. that the death

penalty was inappropriate for non-murdering rapists,

peripheral participants in crimes that led to homicides.

or children under the age of 16, some trials may still

result in a sentence of death under those circumstances.

This Court’s rulings teach that a function of the Con-

PA

a

47

stitution’s ban on cruel and unusual punishment is to ©

reflect society’s “evolving standards of decency” and to

impose them where the system of considering mitigat-

ing circumstances in individual cases has failed to reflect

those standards by prescribing punishment that is clearly

disproportionate to the defendant’s culpability.’

The possibility that a person with mental retardation

could be executed in America has only recently become

apparent. The first modern case to receive any substan-

tial publicity was Georgia’s execution of Jerome Bowden

in 1986, and in that case, the existence and degree of his

disability (IQ 65) were not recognized widely in Georgia

until after His death. In response to the outrage that

many expressed at the spectacle of a person so disabled

being executed, Georgian passed a statute banning the

execution of people with mental disability. Ga. Code Ann.

§ 17-7-131(j) (1988 Supp.); Georgia To Bar Executions

of Mentally Retarded Killers, N.Y. Times, April 12, 1988,

at A26, col. 4. Legislatures in other states have not

“rendered a considered judgment approving the imposi-

tion of capital punishment” on peopie with mental re-

tardation because the reality of this possibility has not

been apparent. Thompson v. Oklahoma, 108 S. Ct. 2687,

2708 (1988) (O’Connor, J., concurring in the judgment).

Polling data strongly indicate that when supporters of

the death penalty are asked whether they approve of the

execution of people with mental retardation, they oppose

7 In each of these cases, the Court has banned the use of the death

penalty under the circumstances ia question. In his dissenting

opinion in Thompson v. Oklahoma, 108 8. Ct. 2687, 2712 (1988),

Justice Scalia raises the possibility of a rebuttable presumption

regarding a defendant's culpability that could be grounded in the

Eighth Amendment. Amici strongly believe that the Eighth Amend-

ment should be held to preclude any execution of a person with

mental retardation, and we are unc'ear about how such a rebuttable

presumption would be structured and implemented. The possibility

of such a presumption has not been argued in this case, nor has it

been considered by the courts below.

18

such sentences. Blume & Bruck, Sentencing the Mentally

Retarded to Death: An Eighth Amendment Analysis, 41

Ark. L. Rev. 725, 759-60 (1988) ‘reporting results of

scientific surveys) .*

Despite the consensus that is now becoming apparent,

people with mental retardation may still be sentenced to

death. Just as the mitigation system was inadequate to

prevent unconstitutionally disproportionate punishment of

defendants in Coker, Enmund, and Thompson, Johnny

Paul Penry’s presence on Death Row demonstrates that

the system of considering factors in mitigation cannot be

relied upon exclusively to assure that defendants with

mental retardation will not be executed.’ Jurors in an

individual case may be confused about the relevance of

mental retardation to culpability and may even believe

perversely that it should be considered as an aggravating

circumstance. Cf. Miller v. State, 373 So. 2d 882 (Fla.

1979). Similarly, reviewing appellate courts may mis-

perceive the impact of mental retardation on culpability.

8 The identifiable objective indicia of societal opinions on this

question, while consistent, are less numerous than those available,

for example, on the issue of executing minors. However, this Court

has indicated that it looks to objective indicators as part of its own

process of deciding whether a punishment is excessive, but that

“it is for us ultimately to judge whether the Eighth Amendment

permits imposition of the death penalty” in particular circum-

stances. Enmund v. Florida, 458 U.S. 782, 797 (1982). In the case

at bar, the objective indicia are not numerous because the possibil-

ity of a person with mental retardation being executed has only

recently become clear. Once the prospect becomes clear, the indicia

suggest that Americans consistently reject the execution of persons

with mental retardation.

® Amici acknowledge that the instant case may not be an ideal

vehicle for resolving the Eighth Amendment issue, since the Texas

system of jury instructions may give jurors inadequate opportunity

to evaluate the relevance of mental retardation as a mitigating

circumstance. See Franklin v. Lynaugh, 108 S. Ct. 2320, 2353 (1988)

(O’Connor, J., concurring in the judgment).

see, imine

19

IV. EXECUTION OF A PERSON WITH MENTAL RE-

TARDATION SERVES NO VALID PENOLOGICAL

PURPOSE.

The principal reason that amici have concluded that

execution of a person with mental retardation violates

the Eighth Amendment is that it is “grossly out of pro-

portion” to such a defendant's culpability. Coker v.

Georgia, 433 U.S. 584, 592 (1977) (plurality opinion).

But Coker also made clear that a punishment is unconsti-

tutionally excessive if it “makes no measurable contribu-

tion to acceptable goals of punishment and hence is noth-

ing more than the purposeless and needless imposition of

pain and suffering.” Jd. The death penalty for people

with mental retardation also violates this principle.

This Court has held that retribution is a valid peno-

logical purpose, and that in proper cases it can support

imposition of the death penalty. But this Court has also

concluded that valid exercise of the state’s interest in

retribution must be related to the degree of the defend-

ant’s blameworthiness. Enmund v. Florida, 458 U.S. 782,

800 (1982). “The heart of the retribution rationale is

that a criminal sentence must be directly related to the

personal culpability of the criminal offender.” Tison v.

Arizona, 107 S. Ct. 1676, 1683 (1987).

Deterrence has also been recognized as an acceptable

purpose for punishment. But the likelihood that an in-

dividual with mental retardation would be deterred from

committing a capital offense by the prospect of the death

penalty is even smaller than was true for teenagers, since

some teenagers have above average intelligence. Cf.

Thompson v. Oklahoma, 108 S. Ct. 2687, 2700 (1988)

(plurality opinion). Similarly, removing the small num-

ber of capital offenders with mental retardation from the

prospect of execution “will not diminish the deterrent

value of capital punishment for the vast majority of

(nonretarded] potential offenders.” Jd. See generally

Ford v. Wainwright, 477 U.S. 399, 407 (1986) (citing

20

Sir Edward Coke for the proposition that execution of an

insane person is “a miserable spectacle, both against

Law, and of extream inhumanity and cruelty, and can be

no example to others”); A.B.A. Standards For Criminal

Justice 7-5.6 (1987) (opposing execution of inmates

whose incompetence results from either mental illness or

mental retardation).

Amici believe that execution of a person with mental

retardation is invariably disproportionate to the level of

that individual’s culpability and is nothing more than

the purposeless and needless imposition of pain and suf-

fering.” Coker, 433 U.S. at 592. Therefore, we believe

that this Court should hold that such executions violate

the Eighth Amendment’s ban on cruel and unusual

punishments.

CONCLUSION

For the reasons set forth above, amici urge this Court

to reverse the judgment of the Fifth Circuit.

Respectfully submitted,

JAMES W. ELLIS

Counsel of Record

RUTH LUCKASSON

1117 Stanford, NE

Albuquerque, New Mexico 87131

(505) 277-2146

Counsel for Amici Curiae

Of Counsel:

BARBARA BERGMAN

DONALD N. BERSOFF

September, 1988

ee. see ee

la

APPENDIX

AMERICAN ASSOCIATION ON

MENTAL RETARDATION

RESOLUTION ON MENTAL RETARDATION

AND THE DEATH PENALTY

JANUARY, 1988

WHEREAS, the AMERICAN ASSOCIATION ON

MENTAL RETARDATION, the nation’s oldest and larg-

est interdisciplinary organization of mental retardation

professionals, has long been active in advocating the full

protection of the legal rights of persons with mental re-

tardation.

WHEREAS, the AMERICAN ASSOCIATION ON

MENTAL RETARDATION recognizes that, archaic

stereotypes and prejudices to the contrary notwithstand-

ing, the vast majority of people with mental retardation

are not prone to criminal or violent behavior.

WHEREAS, the AMERICAN ASSOCIATION ON

MENTAL RETARDATION recognizes that some people

with mental retardation become involved with the crimi-

nal justice system and are often treated unfairly by that

system. This mistreatment often results from the un-

usual vulnerability of individuals with mental retarda-

tion and from the failure of many criminal justice pro-

fessionals to recognize and understand the nature of men-

tal retardation.

WHEREAS, the United States Supreme Court has

made clear that in all capital cases the judge or jury

must consider any mitigating circumstances which would

indicate that the death penalty is inappropriate or un-

just. Among these mitigating circumstances are any

which would tend to reduce the individual offender’s per-

sonal culpability and moral blameworthiness for the act

he or she committed.

2a

WHEREAS, mental retardation is a substantially dis-

abling condition which may affect an individual’s ability

to appreciate and understand fully the consequences of

actions, and which may impair the individual’s ability to

conform his or her conduct to the requirements of the

law. Thus mental retardation should always be consid-

ered to be a mitigating circumstance in selecting an ap-

propriate punishment for a serious offense.

WHEREAS, the current system of permitting judges

and juries to determine the relevance of mental retarda-

tion as a mitigating circumstance on a case-by-case basis

has failed to prevent the unjust sentencing of several

mentally retarded persons to death.

AND WHEREAS, the competence of individuals with

mental retardation to stand trial or enter a guilty plea,

and to face execution are always subject to question, rais-

ing serious doubts as to the legality of an execution in

any particular case.

THEREFORE the AMERICAN ASSOCIATION ON

MENTAL RETARDATION resolves that no person who

is mentally retarded should be sentenced to death or ex-

ecuted.

ee ed ee Se is te. Pe a ee,