Executing the Retarded: How to think about a new wedge issue

National Review, July 23, 2001 by James Q. Wilson

Of the 38 states that allow the death penalty, some 15 exempt the mentally retarded from its reach, as does the federal government. Recently a group of retired American diplomats urged the Supreme Court to ban such executions generally, arguing that the absence of such a ban "will strain diplomatic relations with close American allies."

This is not a very interesting complaint. Even if we ban the death penalty for the mentally retarded, European leaders will still dislike us for having the death penalty at all (or a missile-defense system, or Big Macs, or the English language). And the opposition of some of these leaders to the death penalty ignores the fact that many-in some cases, most-of their citizens want it. Democratic politics in Europe usually means letting elites do what they wish. In our own country, public opinion is a much stronger force on political decisions. In California, the liberal legislature has been worried about a bill that would ban executing the retarded for fear that its passage would allow their electoral opponents to criticize them for being soft on crime.

When elites disagree with popular views, they try to cope by changing the subject. They may have succeeded. In a June Fox News poll, two- thirds of Americans said that they oppose executions for the retarded even if they are

convicted of premeditated murder. If they mean what they say (and that is not quite certain), it is not a trivial fact, for it suggests that Americans may be willing to say that these sentences when imposed on such people are "cruel and unusual punishment," proscribed by the Constitution. Opponents of the death penalty are aware of this, and so there has been of late a flurry of agitation against executing the retarded, perhaps as an opening wedge leading to a ban on executions generally.

If Americans are generally outraged by putting to death a mentally retarded criminal, the Supreme Court will have great difficulty in avoiding the conclusion that the process is unconstitutional. But we cannot be certain that American views are based on a clear understanding of what a mentally retarded person is.

It is not one who is insane or an idiot. Current legal codes make the insane or idiotic eligible for such sentences as "not guilty by reason of insanity," followed by a long term of confinement to a mental institution. The argument for the insanity defense is straightforward: If the accused person, as a result of some mental disease or defect, could not understand that the act he was committing was wrong, then he lacked the mental state that makes him personally responsible for his crime. In no state can an insane defendant be executed.

But mental retardation is a different matter. Conventionally, it is measured by a score on an intelligence test. If your IQ is no more than 65 or 70 (when the average IQ is 100), you can be considered retarded. Just how retarded you are depends on how low the score is, as well as on other features of your personality.

Why should being stupid excuse one from a penalty that is routinely imposed on people who are not stupid? The answer is that retarded persons may not be able to participate effectively in their own defense. They may be suggestible, ready to agree to a police officer's misleading claim that they broke the law, or be unable to tell their attorneys what they need to know in order to represent them effectively.

But these precise questions are ordinarily brought before the court (and should be brought before it in every relevant case) as a matter of elementary fairness. No court should allow a person to plead guilty wrongly or to give his lawyer inadequate help. When presidential candidate George W. Bush said that Texas, which had no law barring the execution of the retarded, did not need such a law, I suspect he had these legal requirements in mind. Since he spoke, the Texas legislature passed a bill exempting the mentally retarded from the death penalty, but it was vetoed by Gov. Rick Perry.

Depending on the state, you can be called retarded on the basis of an IQ test, or the judgment of experts, or some combination of the two. Connecticut law, for example, defines retardation as "a significantly sub-average general intellectual functioning," and this means doing poorly on "one or more of the individually administered general intelligence tests." Now, if you wish to be considered retarded, your first task is to do poorly on this test. Unlike doing well, doing poorly is easy-just pretend you can't remember some numbers, assemble some pictures, or define some words.

As long as the IQ test is the key variable and mental retardation is a mitigating factor, people facing trial have a powerful incentive to cheat on the test: Get a low score and you keep the needle out of your arm. Now, one might be able to overcome this bias if scientists perfect some means to measure IQ directly without any test-taking. For example, a machine might be devised that will measure average evoked brain potential. That potential, crudely put, is the amount of electrical energy radiated by the brain after it experiences some sharp stimulus, such as listening to a clicking sound. Studies suggest that this measured brain potential correlates with IQ. But machines that can measure IQ directly and accurately in this way do not yet exist, though if the elite hostility to IQ research could be eased, they might well be produced. If such machines do become available, then the chances that a suspect will be able to cheat on the IQ test will be reduced.