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"A Dismal Record on Executing the Retarded" Commentary by Prof. Harold Hongju Koh


"A Dismal Record on Executing the Retarded" Commentary by Prof. Harold Hongju Koh

Harold Hongju Koh is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, and a former assistant secretary of state for human rights. He wrote the diplomats' brief in the McCarver case.

(Note: This originally appeared in the June 14, 2001 edition of "The New York Times")


NEW HAVEN -- How does the Bush administration view executing people with mental retardation? When asked this week, President Bush said: "We should never execute anybody who is mentally retarded. And our court system protects people who don't understand the nature of the crime they've committed nor the punishment they are about to receive."

His answer surprised many, since as governor of Texas he declined to halt the execution of a mentally retarded man and opposed a flat legislative ban on this sort of execution. When asked to clarify his meaning, a spokeswoman said: "This is not a change of policy. He's talking about the standards they had in Texas."

But this clarification makes no sense. The standards applied in Texas are designed to protect the mentally ill, not the mentally retarded. In Texas and many other states, people with I.Q.'s of less than 70 and low adaptive skills can and have been sentenced to death. A mentally retarded defendant can be found "not insane" and hence be deemed competent to stand trial and be convicted because he arguably understood the difference between right and wrong, as a child might understand that difference. Such a defendant can be executed without ever grasping the most basic legal principles that decided his fate. The United States Supreme Court will soon decide in the case of Ernest McCarver, a North Carolina death row inmate with the mind of a 10-year-old, whether to require a categorical ban against executing people with mental retardation.

The McCarver case arises at a time when public views are rapidly shifting. In 1989, the last time the court considered the issue, only two states banned execution of people with mental retardation. Today, 15 states and the federal government ban such executions and 12 others and the District of Columbia have abolished the death penalty. On Tuesday, Gov. Jeb Bush of Florida signed a bill prohibiting execution of mentally retarded prisoners. Legislatures in three other states have approved such bills.

Internationally, only Kyrgyzstan is also known regularly to execute people with mental retardation. Nine prominent former American diplomats recently told the Supreme Court in the McCarver case that such executions create diplomatic friction, tarnish America's image as a human rights leader and harm broader American foreign policy interests.

At this pivotal moment, President Bush cannot simply dodge the question by obfuscation. He justifies capital punishment as a deterrent to crime. But what deterrent effect does it have on individuals with childlike minds?

President Bush must honestly acknowledge that under current law those with mental retardation are regularly executed. If he sincerely believes that "we should never execute anybody who is mentally retarded," he should make it administration policy by instructing his solicitor general, Theodore Olson, to file a friend-of-the- court brief with the Supreme Court to oppose Mr. McCarver's execution. He should follow the lead of his brother Jeb Bush on this issue and encourage the governors of Texas, Connecticut and Missouri to sign the bills now on their desks banning execution of mentally retarded people.

Only a small portion of the condemned in this country are mentally retarded. The president would show real compassion and principle by protecting this population from a practice considered barbaric in the rest of the civilized world.