V. Stephen Cohen
... In 1989, in Penry v. Lynaugh, the United States Supreme Court
held that the eighth amendment's cruel and unusual punishment clause does
not prohibit the execution of a mentally retarded person convicted of a
capital felony. ... Whether a mentally retarded individual is classified
as mild or as profound, the substantial limitations in cognitive ability
and adaptive behavior produced by mental retardation
severely reduce the ability of every mentally retarded person to perform
in the everyday world. ... The language in the original versions of the
proposed bills was similar to the language of legislation in the five
states that have already exempted the mentally retarded from capital
punishment. ... While polls show that eighty-four percent of Florida's
population favor capital punishment, the same polls show that seventy-one
percent oppose the death penalty for the mentally
retarded. ... Imposition of the death penalty on a
mentally retarded defendant does not further the legitimate penal goals of
capital punishment -deterrence and retribution. ... Even when mental
retardation is recognized, the characteristics unique to the
mentally retarded place them at a severe disadvantage in the criminal
justice system. ... Florida's proposed legislation would not exempt the
mentally retarded from punishment, nor would it weaken Florida's death
penalty statute. ...
[*457] I. Introduction
In 1989, in Penry v. Lynaugh, n1 the United States Supreme Court held that
the eighth amendment's cruel and unusual punishment clause n2 does not
prohibit the execution of a mentally retarded person convicted of a
capital felony. n3 Recognizing the unique plight faced by the mentally
retarded, four states reacted to the Court's decision by passing
legislation explicitly exempting these individuals from the death
penalty. n4 In 1990 and 1991, similar legislation was proposed in
Florida, but died before being considered by the full House and Senate. n5
The legislation will be proposed again in 1992. n6
The purpose of this Comment is to discuss legislation prohibiting the
imposition of the death penalty on the mentally retarded
and to provide reasons for this type of legislation in Florida. The
Comment begins by defining mental retardation, giving a
brief history of the treatment of the mentally retarded, and discussing
certain characteristics exhibited by the mentally retarded that have
important implications for the criminal justice system. Next, the Comment
gives an overview of Supreme Court decisions relevant to the issues of mental
retardation and the death penalty and the legislative reactions
to Penry. Finally, the Comment analyzes Florida's proposed legislation and
explains why the Florida Legislature should pass the bill.
[*458] II. Background
A. Mental Retardation Defined
In order to grasp the unique issues facing the courts and legislatures
concerning the mentally retarded, one must understand what mental
retardation means. The American Association on Mental Deficiency
(AAMD), the principal professional organization in the field of mental
retardation research, defines mental retardation
as "significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and manifested
during the developmental period." n7 Intellectual functioning is
measured by Intelligence Quotient (IQ) testing. n8 A person with an IQ of
seventy or below functions at a significantly subaverage intellectual
level. n9 Adaptive behavior refers to one's ability to meet the accepted
standards of learning, maturation, personal independence, social
responsibility and communication, and daily living skills expected of
one's age level and cultural group. n10 Individuals must exhibit an IQ of
seventy or below and display significant limitations in adaptive behavior
before their eighteenth birthday to be considered mentally retarded. n11
The AAMD's definition has been adopted by American courts, n12
legislatures, n13 and other professional organizations. n14
The effects of mental retardation on an individual's
ability to function in the everyday world depends, to a great extent, upon
intellectual deficits. Four categories of mental retardation
are recognized based on cognitive ability. n15 The categories are mild (IQ
50-55 to 70), [*459] moderate (IQ 35-40 to 50-55), severe (IQ
20-25 to 35-40), and profound (IQ below 20-25). n16
"Borderline" mental retardation refers to an IQ
between 70 and 85. n17 People within this range are no longer considered
mentally retarded. n18 These classifications can be misleading, however.
For example, people with "mild" mental retardation
are commonly confused with those who were previously labeled
"borderline" retarded. n19 Attorneys and judges, who are
unfamiliar with mental retardation, often share the same
confusion and "incorrectly believe an individual who is mildly
mentally retarded is not seriously disabled and requires no special
attention from the criminal justice system." n20
It is important to remember that the terms "mild,"
"moderate," "severe," and "profound" are
simply comparative words used by mental health professionals to
distinguish between different categories of the mentally retarded. n21
Whether a mentally retarded individual is classified as mild or as
profound, the substantial limitations in cognitive ability and adaptive
behavior produced by mental retardation severely reduce
the ability of every mentally retarded person to perform in the everyday
B. History of Treatment of the Mentally Retarded in the United States
In the past, mental retardation and the problems
associated with it were largely misunderstood. This ignorance led to
stereotyping, discrimination, and mistreatment of retarded people in
America that has been described by the United States Supreme Court as
In the early part of this century, the mentally retarded were viewed as
the "principal source of criminal and immoral behavior" in
society. n24 To deal with this perceived threat, sterilization and
permanent [*460] segregation from society were proposed to
contain mental retardation and to protect the
"normal" population. n25 Between 1907 and 1931, twenty-nine
states enacted mandatory eugenic sterilization laws aimed at curbing mental
By the 1950s, attitudes toward the mentally retarded in the United States
began to change. There was common agreement that no significant link
existed between mental retardation and criminality. n27
The 1960s and 1970s saw a great deal of progress toward recognizing the
rights of mentally retarded citizens. President Kennedy's Panel on Mental
Retardation began to focus the public's attention on the unique
needs of the mentally retarded. n28 The Education of the Handicapped Act
n29 mandated public education for mentally retarded children that
"emphasizes special education and related services designed to meet
their unique needs." n30 Other legislation "outlawed
discrimination against the mentally retarded in federally funded
programs" n31 and "provided the retarded with the right to
receive 'appropriate treatment, services, and habilitation' in a setting
that is 'least restrictive of [their] personal liberty.'" n32
III. The Mentally Retarded and the Criminal Justice System
Although it is clear that great strides have been made toward
understanding mental retardation and the special needs
associated with it, America's criminal justice system is still struggling
with the unique issues presented by mentally retarded defendants. n33 The
safeguards implemented to protect defendants with "normal"
intelligence from unfair treatment within the criminal justice system are
not adequate to protect the mentally retarded. In addition, it is
important to remember that mental retardation involves
more than subaverage intelligence. Professors James W. Ellis and Ruth A.
Luckasson have [*461] identified several traits, common among
people with mental retardation, that have "important
implications for the criminal justice system." n34
First, mental retardation impairs communication skills
and memory. n35 The communication ability of the mentally retarded ranges
from no expressive or receptive skills to communication skills that appear
normal. n36 However, even retarded individuals whose communication skills
appear normal may not be reliable participants in court proceedings. n37
The reduced intellectual ability of the mentally retarded makes
understanding simple questions difficult for them. Further, the mentally
retarded are "predisposed to 'biased responding' or answering in the
affirmative questions regarding behaviors they believe are desirable, and
answering in the negative questions concerning behaviors they believe are
prohibited." n38 Thus, the way a question is posed by a police
officer, lawyer, or judge can inadvertently -- or intentionally -- cause
an accused mentally retarded person to provide an inaccurate answer. n39
Also, many mentally retarded people have limited memory recall, n40 making
it difficult for those mentally retarded persons charged with a crime to
aid in their own defense. n41
Second, many mentally retarded people have poor impulse control, which
appears to be related to problems in attention. n42 Often they have
difficulty weighing the consequences of their actions, and they act
without considering those consequences. n43 The limited attention spans
exhibited by many mentally retarded people impede their ability to focus
on specific events and impede their ability to understand the gravity of
certain situations. n44
Third, people with mental retardation often "have
incomplete or immature concepts of blameworthiness and causation."
n45 Many mentally retarded people place blame where it is not deserved and
are unable [*462] to understand the link between an action and
its consequences. n46 People with mental retardation can
tell "right" from "wrong." n47 They cannot, however,
apply these abstract concepts to specific factual settings. n48
Fourth, mental retardation affects self-concept and
self-perception. n49 The mentally retarded often overrate their own
skills, "either out of a genuine misreading of their own abilities or
out of defensiveness about their handicap." n50 Also, mentally
retarded individuals commonly deny their disability. n51 Many individuals
with mental retardation are effective at hiding their
condition, making detection difficult. n52
Finally, most mentally retarded people do not have the same general
knowledge as people with "normal" intelligence. n53 The limited
cognitive ability of the mentally retarded and the special education
programs designed for them do not allow people with mental
retardation to gain a broad, general understanding about the
In summary, mental retardation is a severe and permanent
mental impairment that affects almost every aspect of a mentally retarded
person's life. . . . [T]o be mentally retarded is to be forced to live in
a "nonretarded" world which neither understands nor allows for
such a crippling mental handicap. And that means the life of a mentally
retarded person, left to his own devices, is filled with confusion,
frustration, shame, and fear. The difference in the cognitive abilities of
a mentally retarded person, as opposed to one of "normal
intelligence," is sufficient to make the difference one of kind, not
of degree. n55
When one considers these characteristics, it is easy to see why the
criminal justice system, created for people with "normal"
intelligence, "is often an inhospitable place for the mentally
retarded defendant." n56
[*463] IV. The Death Penalty
In 1972, in Furman v. Georgia, n57 the United States Supreme Court struck
down Georgia's death penalty statute. n58 The Court found
that the sentencing procedures provided by the statute created a
substantial risk that the death penalty would be
inflicted in an arbitrary, capricious, and possibly discriminatory manner.
n59 Thus, the statute, as applied, violated the eighth amendment's
prohibition against cruel and unusual punishment. n60 Furman effectively
invalidated every death penalty statute in existence at
In 1976, the Court revisited the capital punishment issue. n61 In Gregg v.
Georgia, the Court upheld a modified version of Georgia's death
penalty statute. n62 The modified statute provides a
"bifurcated proceeding" in capital punishment cases. During the
first phase, the trier of fact determines guilt or innocence. n63 Upon a
verdict or plea of guilty of one of the enumerated capital offenses, the
same trier of fact, in a separate proceeding, considers the imposition of
the death penalty. n64 This second phase is commonly
referred to as the "sentencing phase." To impose the death
penalty, at least one of ten aggravating factors must be present.
n65 These factors are weighed against mitigating factors to determine the
propriety of the death penalty for a specific defendant.
n66 The statute provides an automatic appeal to the Georgia Supreme Court.
[*464] Gregg made it clear that the death penalty
is not per se unconstitutional. n68 Imposition of the death
penalty in specific instances does not violate society's
"evolving standards of decency," the standard used by the Court
to test the validity of a punishment under the eighth amendment. n69 The
Court looks primarily to existing state legislation to define these
"evolving standards," n70 and the decision in Gregg emphasizes
that, when considering capital punishment, great deference will be given
to state legislatures. n71
The Supreme Court's decisions after Gregg have narrowed the class of
defendants upon which the death penalty may be imposed.
The Court has held that the execution of youths under the age of sixteen,
n72 and of the insane, n73 violates the eighth amendment. n74 The Court,
however, has refused to extend this same protection to the mentally
A. Capital Punishment and Youth
In Eddings v. Oklahoma, n76 the Supreme Court recognized a defendant's
youth as an important mitigating factor in a death penalty
proceeding. n77 The Court found that "youth is more than a
chronological [*465] fact. It is a time and a condition of
life when a person may be most susceptible to influence and to
psychological damage." n78
Six years later, the Court again considered the special circumstances of
youth. In Thompson v. Oklahoma, n79 the Court held that the eighth
amendment's ban against cruel and unusual punishment prohibits the
execution of children under the age of sixteen. n80 In reaching its
conclusion, the Court looked to society's evolving standards of decency,
n81 the diminished culpability of minors, n82 and the recognized goals of
capital punishment. n83
Regarding the evolving standards of decency, the Court looked at
legislative treatment of children, at the behavior of juries when dealing
with children, and at "societal values" to determine that a
national consensus exists against executing this class of citizens. n84
The Court next found that adolescents lack the culpability necessary to
warrant society's ultimate punishment. n85 "[A]dolescents as a class
are less mature . . . than adults." n86 Adolescents are also less
blameworthy. n87 Because of inexperience, less education, and less
intelligence, children are unable to evaluate consequences and are more
easily motivated by emotion and by peer pressure. n88
Finally, the Court considered the two principal social purposes of the death
penalty and concluded that they were not furthered by the
execution of this class of persons. n89 The Court found that "[g]iven
the lesser culpability of the juvenile offender, the teenager's capacity
for growth, and society's fiduciary obligations to its children," the
goal of retribution is not served by executing children under the age of
sixteen. n90 The deterrence rationale is equally unacceptable, as most
children under the age of sixteen, when weighing the consequences of an
act, cannot make the type of cost-benefit analysis necessary to be
deterred. n91 Accordingly, the Court exempted children under the age of
[*466] sixteen from the death penalty. The
Court reached the same result when considering the execution of insane
B. Capital Punishment and the Insane
In Ford v. Wainwright, n92 the Court held that the execution of an insane
individual constitutes cruel and unusual punishment. n93 However, there
was no consensus regarding the rationale behind the holding. n94 The
plurality noted that common law prohibited execution of the insane n95 and
that most state legislatures exempt the insane from the death
penalty. n96 The Court also noted that imposition of the death
penalty could have no retributive or deterrent effect on people
who can neither comprehend why they are being executed nor participate in
their own defense. n97 Finally, the Court found that executing an insane
individual simply offends humanity. n98
Although the Supreme Court has interpreted the eighth amendment to ban the
execution of the insane and of children under the age of sixteen, it has
declined to extend the same protections to the mentally retarded, a
similar class of defendants. n99
C. Capital Punishment and Mental Retardation: Penry v.
In Penry v. Lynaugh, the Court held that executing a mentally retarded
individual is not a per se violation of the eighth amendment. n100 John
Paul Penry was convicted in Texas of brutally murdering his [*467]
neighbor and was sentenced to death. n101 At various times in his life,
measurements of Penry's IQ had yielded scores between fifty and
sixty-three. n102 He had the mental age of a child of six and one-half
years and the social maturity of a child of nine or ten years. n103
In reaching its conclusion, the Court again noted that cruel and unusual
punishment recognizes the "evolving standards of decency that mark
the progress of a maturing society." n104 To define those evolving
standards, the Court examined both capital punishment statutes dealing
with the mentally retarded and public opinion polls. n105 The Court noted
that, at the time of the Penry decision, only Georgia's Legislature had
exempted the mentally retarded from capital punishment. n106 The Court
also noted that public opinion polls conducted in Texas, Florida, and
Georgia showed that the majority of people oppose executing the mentally
retarded. n107 After considering these facts, the Court stated that
"at present, there is insufficient evidence of a national consensus
against executing mentally retarded people convicted of capital offenses
for us to conclude that it is categorically prohibited by the Eighth
The Court in Penry also discussed the accepted goals of punishment. n109
For retribution to be a valid goal, a nexus between the punishment and the
defendant's blameworthiness must exist. n110 The Court recognized that mental
retardation does diminish an individual's culpability and that
most states recognize mental retardation as a mitigating
factor in criminal prosecutions. n111 However, the abilities of people
with mental retardation vary widely. n112 Although the
Court admitted that it would be cruel and unusual to execute an individual
who is [*468] severely or profoundly retarded, n113 it refused
to hold that no mentally retarded person could have the requisite
culpability to be sentenced to death. n114
Thus, the Supreme Court refused to provide a blanket exemption from the death
penalty for the mentally retarded. Although Penry does offer hope
for people exhibiting severe and profound retardation, the decision does
nothing to protect people with mild or moderate retardation.
In Penry, the Court stood by its "long-standing belief that most
aspects of capital punishment are properly questions for the states."
n115 After Penry, the issue of imposing the death penalty
on the mentally retarded was raised in state legislatures across the
V. Legislative Responses to Penry
In reaction to Penry, Kentucky, Maryland, New Mexico, and Tennessee passed
legislation exempting mentally retarded people from the death
penalty. n116 As previously noted, Georgia passed similar
legislation in 1988. n117
The statutes' chief provisions are similar. They expressly adopt the
AAMD's definition of mental retardation n118 and prohibit
the execution of people who come within that definition. It is important
to note that none of these statutes preclude punishing the mentally
retarded for capital offenses. In fact, every version except Tennessee's
provides a mandatory sentence of life in prison for mentally regarded
individuals [*469] convicted of capital crimes. n119 The
statutes simply recognize the manifest unfairness that results from
subjecting individuals with limited culpability and limited moral
blameworthiness to society's ultimate penalty.
A. Mental Retardation and the Death Penalty in Florida
Florida's death penalty statute is similar to the statute
that was challenged and upheld in Gregg v. Georgia. n120 It provides a
bifurcated procedure with the initial step determining guilt or innocence
and the second, separate step determining the sentence. n121 During the
sentencing phase, the same trier of fact is to take into consideration the
aggravating and mitigating circumstances presented by the parties and
determine the appropriateness of the death penalty. n122
In Florida's scheme, mental retardation is not an
explicit mitigating factor.
The Florida Supreme Court has not decided whether executing the mentally
retarded constitutes cruel and unusual punishment under the Florida
Constitution. n123 Thus far, the court has avoided ruling on the issue.
However, the cases dealing with the mentally retarded and the death
penalty that have been decided "indicate that the [court]
views mental retardation as merely one aspect of the
defendant's character. It has not yet come to grips with the reality that
this learning disorder defines the person." n124
B. Florida's Proposed Legislation
In 1990 and in 1991, legislation was introduced in both the Florida House
of Representatives and the Florida Senate that would have prohibited the
execution of the mentally retarded. n125 The language in the original
versions of the proposed bills was similar to the language of legislation
in the five states that have already exempted the mentally retarded from
capital punishment. Senate Bill 2226 (1991) would have [*470]
amended section 921.141(1)(a), Florida Statutes, to read in pertinent
Upon conviction or adjudication of guilt of a defendant of a capital
felony, the court, upon motion of the defendant, shall conduct a separate
. . . proceeding to determine whether the defendant should be sentenced to
death or life imprisonment without consideration of a sentence of death
due to the defendant's allegation that he suffers from retardation, as
defined in s. 393.063. A defendant who establishes by a preponderance of
evidence that he meets the definition in s. 393.063 shall be sentenced to
life imprisonment without the possibility of parole for a minimum of 25
years. . . . A determination of retardation made pursuant to this
paragraph does not act as an adjudication of incompetence or dismissal of
any criminal charge or conviction. n126
Section 393.063, Florida Statutes, cited in the Senate bill, deals with
public health and adopts the AAMD's definition of mental
In both 1990 and 1991, the proposed legislation met strong opposition from
Florida prosecutors n128 and was killed before it reached the full House
and Senate. n129 The prosecutors believed that the bill, if passed, would
provide anti-death penalty activists a means of further
delaying an already overburdened and slow-moving system. n130 State
prosecutors also fear that individuals who are not mentally retarded will
claim to have the condition to avoid the death penalty.
n131 This [*471] could confuse issues and make it more
difficult to impose the death penalty on deserving
defendants. n132 Finally, Florida prosecutors argue that the safeguards
built into the current system are adequate to protect the mentally
retarded from the death penalty. n133 Despite the
prosecutors' fears, similar legislation will be proposed in 1992. n134
Florida should follow the lead of the five states that have already passed
this progressive legislation and adopt the bill. As discussed below,
public opinion in Florida disfavors imposition of capital punishment on
the mentally retarded. Neither the goal of deterrence nor the goal of
retribution is furthered by the execution of a retarded person. Further,
Florida's criminal justice system is ill-equipped to deal with the special
issues presented by mentally retarded defendants. The system cannot ensure
that a mentally retarded individual will receive the fair trial that is an
absolute requirement when any defendant faces society's most severe
1. Public Opinion
The majority of Floridians oppose execution of mentally retarded
defendants. While polls show that eighty-four percent of Florida's
population favor capital punishment, the same polls show that seventy-one
percent oppose the death penalty for the mentally
retarded. n135 Further, Florida's treatment of its retarded citizens over
the years has become increasingly understanding and compassionate. n136
The Florida Legislature has created special regulations to govern the
treatment of the mentally retarded, and "within the last five years
the legislature has enacted a 'bill of rights' for the mentally ill or
mentally retarded, which seeks to maintain the dignity and assure
treatment for such persons." n137 This evidence shows an evolving
trend in Florida toward recognizing the unique circumstances of the
mentally retarded and toward providing the special protection they
2. Deterrence and Retribution
Imposition of the death penalty on a mentally retarded
defendant does not further the legitimate penal goals of capital
punishment -- [*472] deterrence and retribution. n138 The
threat of execution cannot deter a mentally retarded defendant. To be
deterred by execution, one must be able to premeditate the crime and be
capable of understanding the penalty. The limited intelligence and
impulsive behavior exhibited by mentally retarded persons renders them
incapable of the degree of planning necessary for the imposition of the death
penalty. n139 In addition, mentally retarded persons cannot
appreciate the finality of death. n140 Thus, applying the deterrence
rationale to the mentally retarded is dubious.
The other accepted goal of capital punishment is retribution. n141
Inherent in the idea of punishment as retribution is that the community
accepts the punishment as fair and that "the punishment is the just
deserts of the offense." n142 As previously discussed, a majority of
Floridians oppose the imposition of the death penalty on
the mentally retarded. To determine whether execution is a fair punishment
for a person, however, requires an examination of "personal
responsibility and moral guilt." n143 The debilitating
characteristics of mental retardation severely reduce the
level of personal responsibility for certain acts that can be attributed
to a mentally retarded individual. n144 The mentally retarded display
lower intelligence, limited communication and memory skills, and less
worldly knowledge than people with "normal" IQs. n145 Further,
the mentally retarded are easily manipulated and vulnerable to suggestion.
n146 Finally, the incomplete moral development caused by mental
retardation reduces their culpability. n147 For these reasons,
the goal of retribution cannot validly be achieved by their execution.
3. Problems Within the Criminal Justice System
Florida's criminal justice system, designed for people with
"normal" intelligence, is ill-equipped to deal with mentally
retarded defendants. [*473] The current procedures cannot
ensure that the rights of the mentally retarded will be properly
Few police officers, lawyers, or judges have any training in dealing with
the mentally retarded. n148 Thus, mental retardation
often goes undetected throughout the entire criminal justice process. n149
Even when mental retardation is recognized, the
characteristics unique to the mentally retarded place them at a severe
disadvantage in the criminal justice system. n150
Mentally retarded defendants often waive their constitutional rights
without understanding the implications of their statements. n151 Also, the
mentally retarded often confess more quickly. n152 They tend to be eager
to please authority figures and can often be easily manipulated. n153 The
incomplete concepts of causation and of culpability exhibited by a person
with mental retardation always places a cloud over the
validity of a confession. n154
Mental retardation hampers a defendant's ability to
communicate with police officers, lawyers, and the court. n155 Commonly,
such defendants cannot understand the questions put to them, and their
vague, unresponsive answers often lead judges and juries to view a
mentally retarded defendant as simply recalcitrant and uncooperative. n156
Finally, mentally retarded defendants often are unable to comprehend why
they were thrown into the system in the first place. Once in, their
condition renders them unable to understand the proceedings that will
determine their fate. Their impaired intellectual ability and limited
memory deny them the ability to participate in their own defense and
severely hamper an attorney's efforts on their behalf. "Thus, there
is a substantial possibility that a mentally retarded person may be
convicted of a criminal offense, or even sentenced to death, in a
proceeding in which he is a virtual non-participant." n157 To
sentence a mentally retarded person to death under these circumstances is
simply not acceptable in a society that values human life and the
integrity of its legal system so greatly.
[*474] VI. Conclusion
Treatment of the mentally retarded in our society is becoming increasingly
compassionate and understanding. Despite this trend, the criminal justice
system remains in the Dark Ages, imposing society's severest punishment on
individuals with limited intelligence and culpability -- and imposing it
without providing any special protection. The United States Supreme Court
has made it clear that the job of protecting the mentally retarded from
the death penalty lies with the state legislatures.
Five states have exempted the mentally retarded from the death
penalty. Florida should join them. Florida's proposed legislation
would not exempt the mentally retarded from punishment, nor would it
weaken Florida's death penalty statute. The legislation
simply recognizes that it is unduly harsh to execute a mentally retarded
person instead of applying other penalties that will both punish the
guilty and protect society.
n1 492 U.S. 302 (1989).
n2 U.S. Const. amend. VIII.
n3 Penry, 492 U.S. at 340.
n4 Ky. Rev. Stat. Ann. § 532.140 (Michie/Bobbs-Merrill 1990); Md. Ann.
Code art. 27, § 412(f)(1) (Supp. 1990); N.M. Stat. Ann. § 31-20A-2.1
(Michie 1991); Tenn. Code Ann. § 39-13-203 (Supp. 1990). Georgia enacted
similar legislation in 1986. See Ga. Code Ann. § 17-7-131(j) (Supp.
n5 See infra note 129. The bills' legislative sponsors were Representative
Dixie N. Sansom, Republican, Satellite Beach, and Senator Bob Johnson,
n6 See Fla. SB 42 (1992). The bill's legislative sponsor is Senator Bob
Johnson, Republican, Sarasota.
n7 Am. Ass'n on Mental Deficiency, Classification in Mental
Retardation 1 (H. Grossman ed. 1983) [hereinafter AAMD]. There
are numerous causes of mental retardation, including
biological and environmental factors. Am. Psychiatric Ass'n, Diagnostic
and Statistical Manual of Mental Disorders 29 (3d ed. 1987) [hereinafter
n8 AAMD, supra note 7, at 1. IQ tests include the Wechsler Intelligence
Scale for Children -- Revised, Stanford Binet, and Kaufman Assessment
Battery for Children. DSM III, supra note 7, at 28.
n9 AAMD, supra note 7, at 1.
n10 DSM III, supra note 7, at 28-29. The devices used to measure adaptive
behavior include the Vineland Adaptive Behavior Scales and the American
Association of Mental Deficiency Adaptive Behavior Scales. Id. at 29.
n11 The period of time between conception and the eighteenth birthday
defines "the developmental period." AAMD, supra note 7, at 1.
n12 See, e.g., Penry v. Lynaugh, 492 U.S. 302, 308 n.1 (1989); City of
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442 n.9 (1985).
n13 See, e.g., Fla. Stat. § 393.063(41) (Supp. 1990); Tenn. Code Ann. §
39-13-203(a) (Supp. 1990).
n14 See, e.g., DSM III, supra note 7, at 32-33.
n15 AAMD, supra note 7, at 13.
n16 Id. Mild, moderate, severe, and profound mental retardation
account for 85%, 10%, 3%-4%, and 1%-2%, respectively, of the total
population of mentally retarded individuals. DSM III, supra note 7, at
n17 Blume & Bruck, Sentencing the Mentally Retarded to Death: An
Eighth Amendment Analysis, 41 Ark. L. Rev. 725, 731 (1988).
n18 Id. at 732.
n20 Id. at 731 n.23.
n21 Id. at 731.
N22 See infra notes 33-56 and accompanying text.
n23 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 454
(1985) (Stevens, J., concurring) (quoting Cleburne Living Center, Inc. v.
City of Cleburne, 726 F.2d 191, 197 (5th Cir. 1984)).
n24 Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo.
Wash. L. Rev. 414, 417 (1985).
n25 Id. at 419 (citing P. Tyor & L. Bell, Caring for the Retarded in
America: A History 105-22 (1984)).
n26 Blume & Bruck, supra note 17, at 751-52 (citing J. Landman, Human
Sterilization 303 (1932)); Ellis & Luckasson, supra note 24, at 419
n27 Ellis & Luckasson, supra note 24, at 420.
n28 Id. (citing President's Panel on Mental Retardation,
Report of the Task Force on Law 31-41 (1963)).
n29 20 U.S.C. § 1400 (1988).
n30 Id. § 1400(c).
n31 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 443
(1985) (citing 29 U.S.C. § 794).
n32 Id. (citing Developmental Disabilities Assistance and Bill of Rights
Act, 42 U.S.C. § 6010(1), (2)).
n33 For an in-depth discussion of the mentally retarded in the criminal
justice system, see Ellis & Luckasson, supra note 24.
n34 Ellis & Luckasson, supra note 24, at 427-32.
n35 Id. at 428-29.
n36 Id. at 428.
n37 See id.
n40 Id. "This is particularly true of events which the individual had
not identified as important." Id.
n41 Id. at 428-29.
n42 Id. at 429. These problems involve impaired attention span, focus, and
selectivity in the attention process. Id.
n43 Blume & Bruck, supra note 17, at 733.
n44 Ellis & Luckasson, supra note 24, at 429.
n46 Id. at 429-30. Similarly, many mentally retarded people will
"cheat to lose," accepting blame for a crime they did not commit
just to gain the favor of their accuser. Id. at 430.
n47 Id. at 441 n.137 (citing Empirical Study, The Mentally Retarded
Offender in Omaha-Douglas County, 8 Creighton L. Rev. 622, 646 (1975)).
n49 Id. at 430-31.
n50 Id. at 430.
n51 Id. This denial works against retarded people, particularly in a
courtroom setting. Id.
n52 See id. at 431.
n55 Blume & Bruck, supra note 17, at 734 (emphasis added).
n56 Id. at 735.
n57 408 U.S. 238 (1972).
n58 Id. at 239-40.
n59 See id. at 255-57 (Douglas, J., concurring). The statute gave the
sentencer virtually unbridled discretion in sentencing decisions. Id.
n60 Id. at 239-40.
n61 The Court reexamined the issue in five companion cases: Gregg v.
Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976);
Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S.
280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976). The statutes in
Gregg, Proffitt, and Jurek provided bifurcated capital punishment
proceedings and were upheld by the Court. The statutes in Woodson and
Roberts, however, were struck down because they provided for a mandatory
death sentence for certain crimes.
n62 428 U.S. at 207. See Ga. Code Ann. §§ 26-1101, -1311, -1902, -2001,
-2201, -3301 (1972).
n63 Gregg, 428 U.S. at 163.
n64 Id. at 163-64.
n65 Id. at 164-66. The aggravating factors include: prior convictions, a
murder committed during the commission of a capital felony, a high level
of danger to the public, whether the act was committed for monetary gain,
whether the victim was involved in law enforcement, whether the offender
caused another to commit the crime, whether the act involved torture,
whether the victim was a peace officer or firefighter, whether the
defendant was an escaped convict, or whether the murder was committed to
avoid arrest. Ga. Code Ann. § 27-2534.1(b) (Supp. 1975).
n66 Gregg, 428 U.S. at 164.
n67 Id. at 166.
n68 Id. at 169.
n69 Id. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
n70 Id. at 174-76.
n71 Id. at 186-92. The Court stated:
In sum, we cannot say that the judgment of the Georgia Legislature that
capital punishment may be necessary in some cases is clearly wrong.
Considerations of federalism, as well as respect for the ability of a
legislature to evaluate, in terms of its particular State, the moral
consensus concerning the death penalty and its social
utility as a sanction, require us to conclude, in the absence of more
convincing evidence, that the infliction of death as a punishment for
murder is not without justification and thus is not unconstitutionally
Id. at 186-87.
n72 Thompson v. Oklahoma, 487 U.S. 815 (1988).
n73 Ford v. Wainwright, 477 U.S. 399 (1986).
n74 In Ford, Justice Powell offered what has become the accepted
definition of insane people: "those who are unaware of the punishment
they are about to suffer and why they are to suffer it." Id. at 422
(Powell, J., concurring).
"Insanity" is a common law term. Today the insane are commonly
referred to as "mentally ill." Mental illness and mental
retardation are often confused. They are, however, different
disorders. Mental illness has nothing to do with intellectual capacity.
The mentally retarded are, by definition, individuals with low
intelligence levels. Mental illness can be sporadic and, with proper
treatment, can often be cured. Mental retardation is
permanent. While the mentally retarded can usually be trained to live and
function in society without constant supervision, a person with mental
retardation can never be cured of the condition. See Ellis &
Luckasson, supra note 24, at 423-24.
n75 Penry v. Lynaugh, 492 U.S. 302 (1989).
n76 455 U.S. 104 (1982).
n77 Id. at 115.
n79 487 U.S. 815 (1988).
n80 Id. at 838. While the Court has shown leniency to children under the
age of 16, it has refused to exempt children over the age of 16. Stanford
v. Kentucky, 492 U.S. 361 (1989).
n81 Thompson, 487 U.S. at 821.
n82 Id. at 833-38.
n83 Id. The principal goals of capital punishment are retribution and
deterrence. See also Gregg v. Georgia, 428 U.S. 153, 183 (1976).
n84 Thompson, 487 U.S. at 821-33.
n85 Id. at 834-38.
n86 Id. at 834.
n87 Id. at 835.
n89 Id. at 836-38.
n90 Id. at 836-37.
n91 Id. at 837-38.
n92 477 U.S. 399 (1986).
n93 Id. at 409-10.
n94 Id. at 407. The Court stated: "the reasons for the rule are less
sure and less uniform than the rule itself." Id.
n95 Id. at 406-07.
n96 Id. at 408-09 n.2.
n97 Id. at 409.
n99 Many scholars argue that the same justifications for exempting youth
and the insane from capital punishment are applicable to the mentally
retarded. Like youth and the insane, people with mental
retardation exhibit lesser culpability and are often unable to
understand the consequences of an action. Further, it is doubtful whether
the goals of retribution and deterrence can legitimately be applied to the
mentally retarded. Finally, the concept of "mental age" is
currently being debated in the literature. This theory proposes that an
adult with the intellectual development of a child "cannot function
in terms of reasoning and understanding beyond the level of an average
child of the age at which the adult's mental development is
assessed." Blume & Bruck, supra note 17, at 747; see also Ellis
& Luckasson, supra note 24, at 432-44. Thus, just as children are
exempted, the mentally retarded who function at the level of children
should also be exempted.
n100 492 U.S. 302, 340 (1989).
n101 Id. at 310. While the Court found that it is not unconstitutional to
execute a mentally retarded defendant, the case was remanded because the
Court determined that the jury, due to faulty jury instructions, had been
unable to give full effect and consideration to the mitigating evidence
brought forth by Penry. Id. at 328.
n102 Id. at 307.
n103 Id. at 308. Penry was 22 years old at the time of the crime.
n104 Id. at 330-31 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958).
n105 Penry, 492 U.S. at 331-35. The Court considered state legislation and
data regarding jury sentencing behavior to be the best and most objective
evidence of societal values. Id. at 331.
n106 Id. at 334. Ga. Code Ann. § 17-7-131(j) (Supp. 1988) (prohibits
execution of the mentally retarded). At the time of this decision, the
Maryland Legislature had enacted a similar statute, but it had not taken
affect. Penry, 492 U.S. at 334. The federal government also bans the
execution of the mentally retarded. See 21 U.S.C. § 848 (1) (1991).
n107 Penry, 492 U.S. at 334-35.
n108 Id. at 335.
n109 Id. at 335-36.
n110 Id. at 336.
n111 Id. at 337-38.
n112 Id. at 338.
n113 Id. at 333. The Court stated:
The common law prohibition against punishing "idiots" [people
who cannot form the requisite intent to commit a crime or who cannot
understand the difference between good and evil] for their crimes suggests
that it may indeed be "cruel and unusual" punishment to execute
persons who are profoundly or severely retarded and wholly lacking the
capacity to appreciate the wrongfulness of their actions.
n114 Id. at 340.
n115 Comment, Consistency in the Application of the Death Penalty
to Juveniles and the Mentally Impaired: A Suggested Legislative Approach,
58 U. Cin. L. Rev. 211, 222 (1989).
n116 See Ky. Rev. Stat. Ann. § 532.140 (Michie/Bobbs-Merrill 1990); Md.
Ann. Code art. 27, § 412(f)(1) (Supp. 1990); N.M. Stat. Ann. §
31-20A-2.1 (1991); Tenn. Code Ann. § 39-13-203 (Supp. 1990).
n117 See Ga. Code Ann. § 17-7-131(j) (Supp. 1988). The Georgia statute
was a response to public outrage over the 1986 execution of Jerome Bowden,
a mentally retarded man with an IQ of 59.
n118 See Ga. Code Ann. § 17-7-131(a) (3) (Supp. 1991); Ky. Rev. Stat.
Ann. § 532.130(2) (Michie/Bobbs-Merrill 1990); Md. Ann. Code art. 27, §
412(e)(3) (Supp. 1990) (Maryland's statute extends the developmental
period to the age of 22); N.M. Stat. Ann. § 31-20A-2.1(A) (1991); Tenn.
Code Ann. § 39-13-203.
n119 Ga. Code Ann. § 17-7-131(j) (Supp. 1991); Ky. Rev. Stat. Ann. §
532.140(2) (Michie/Bobbs-Merrill 1990); Md. Ann. Code art. 27, §
412(f)(2) (Supp. 1990); N.M. Stat. Ann. § 31-20A-2.1(c) (1991).
n120 See Fla. Stat. § 921.141 (Supp. 1990).
n121 Id. § 921.141(1).
n122 Id. § 921.141(3), (5), (6).
n123 For a thorough discussion of the Florida Supreme Court's treatment of
the issue, see Davis, Executing the Mentally Retarded: The Status of
Florida Law, Fla. B.J., Feb. 1991, at 12, 14-15.
n124 Id. at 14.
n125 Fla. SB 2226 (1991); Fla. HB 657 (1991); Fla. CS for HB 657 (1991);
Fla. HB 3029 (1990); Fla. SB 1242 (1990). The bills' legislative sponsors
were Representative Dixie N. Sansom, Republican, Satellite Beach, and
Senator Bob Johnson, Republican, Sarasota.
n126 Fla. SB 2226 § (1)(a) (1991). House Bill 657 (1991), the companion
legislation to Senate Bill 2226, was similar to the Senate bill in all
relevant respects. The House bill, however, reached the Committee on
Criminal Justice before it died on the calendar on May 2, 1991. Fla.
Legis., History of Legislation, 1991 Regular Session, History of House
Bills at 62, HB 657. The Senate bill died in the Committee on Criminal
Justice on the same day. Id., History of Senate Bills at 266, SB 2226. The
Committee amended the House bill by redefining mental retardation
to include only those individuals with IQs of 65 or less. Fla. CS for HB
657 (1991). The revised definition contained no requirement for
limitations in adaptive behavior. The basis for this revised definition is
unclear. As discussed in section II(A) of this Comment, the AAMD's
definition of mental retardation, included in the Senate
bill and the original House bill, is regarded as the accepted definition
of mental retardation.
n127 See supra text accompanying note 7.
n128 Interview with Mrs. Chris Schuh, Exec. Dir., Ass'n for Retarded
Citizens of Fla., in Tallahassee (May 1, 1991).
n129 See Fla. Legis., History of Legislation, 1991 Regular Session,
History of House Bills at 62, HB 657; id., History of Senate Bills at 266,
SB 2226; Fla. Legis., History of Legislation, 1990 Regular Session,
History of House Bills at 453, HB 3029; id., History of Senate Bills at
117, SB 1242.
n130 Internal memorandum, Dep't of Legal Affairs, Crim. Appeals Div.,
Dir.'s Office, (Apr. 4, 1990) (on file at Florida State Univ. College of
n134 See supra note 6. Senate Bill 42, proposed for 1992, is the same as
1991's Senate Bill 2226 in all relevant respects.
n135 Blume & Bruck, supra note 17, at 759 (citing Cambridge Survey
Research, Inc., Attitudes in the State of Florida on the Death
Penalty: Public Opinion Survey 7, 61 (1986)).
n136 Davis, supra note 123, at 15.
n137 Id. (quoting Fla. Stat. § 916.107 (1990)).
n138 Ford v. Wainwright, 477 U.S. 399, 407-08 (1985).
n139 See supra text accompanying notes 42-44.
n140 Blume & Bruck, supra note 17, at 743.
n141 Wainwright, 477 U.S. at 408.
n142 Blume & Bruck, supra note 17, at 743.
n143 Booth v. Maryland, 482 U.S. 496, 502 (1987) (quoting Enmund v.
Florida, 458 U.S. 782 (1982)).
n144 See supra notes 45-48 and accompanying text.
n145 See supra text accompanying notes 33-56.
n146 See supra notes 38-39 and accompanying text.
n147 See supra notes 45-48 and accompanying text.
n148 Blume & Bruck, supra note 17, at 733-34.
n149 Id. at 735.
n150 See supra text accompanying notes 33-56.
n151 See Ellis & Luckasson, supra note 24, at 446.
n152 See id. at 445-52.
n153 Id. at 446.
n154 Id. at 445-52.
n155 See supra text accompanying notes 35-41.
n156 Blume & Bruck, supra note 17, at 735.