George S. Baroff is a clinical psychologist specializing in mental retardation. He has served many years as an expert
witness in capital cases involving retarded defendants in North Carolina and elsewhere in the nation.
Mental retardation has long been recognized as relevant to culpability and competency at the guilt-innocence phase of a capital trial and as a mitigating factor at the sentencing phase. This article will (a) explain the nature of mental retardation, (b) distinguish it from "mental illness," (c) indicate signs of the disorder to which attorneys and investigators should be sensitive, (d) discuss issues of competency -- to confess, stand trial, and plead guilty, and, (e) of special relevance to sentencing, indicate why mental retardation always involves some degree of diminished capacity or reduced personal blameworthiness.
What is Mental Retardation?
As currently defined by the American Association on Mental Retardation and by the American Psychiatric Association in its diagnostic manual, DSM-IV, mental retardation refers to (a) significantly subaverage general intelligence that (b) causes major difficulties in activities of daily living, and (c) has manifested by age 18.1 The federal government and 12 states prohibit execution of the mentally retarded.2On intelligence tests, retarded persons typically have IQ scores of 70 and below. Realizing that IQs less than 70 represent the bottom 2 percent of the general population, the fact that almost 98 percent of the population score higher than 70 accentuates this intellectual impairment. The cognitive deficits in retardation refer to problems of learning -- especially reading, writing, and arithmetic -- and to limited abilities to reason, plan, understand, judge, and discriminate. All of these deficits materially affect the capacity to think about intended actions, to consider their possible consequences, and to exercise restraint.
The retarded individual who comes in contact with the law typically has an IQ in the 60 to 70 range. Usually free of obvious biological abnormalities, he or she often appears typical. Language expression is generally adequate, though speech may be halting, poorly articulated, and impoverished in detail. Memory is also affected, and people with mental retardation are often vague and imprecise in recalling details. Parents and siblings of the mentally retarded may also have histories of retardation. The learning difficulties associated with the disorder preclude normal school progress, and placement in special education classes is common. The average scholastic achievement of individuals in the 60-70 IQ range is about third grade. Some modest reading ability may exist, but arithmetic skills are minimal; in adulthood, problems in managing money surface.
Generally, mental retardation impairs the capacity to exercise the independence and personal responsibility expected for one's age. When retardation is fairly severe -- for example, an IQ below 60 -- some assistance and supervision is required throughout life.3
Mental retardation is often confused with mental illness. Indeed, in earlier times both conditions were incorporated under the general category of "insanity." They are truly different disorders, however. Mental illness almost always includes some disturbance in emotional life, as in depression and schizophrenia. Unlike mental retardation, intellectual functioning may be grossly intact, except where thinking breaks with reality -- as in delusions of persecution -- or when one hears or sees things that are not objectively present -- as in auditory and visual hallucinations. These well-known symptoms of psychiatric illness neither characterize mental retardation nor is emotional disturbance always present in mentally retarded persons. While emotional behavior in persons with mental retardation may appear immature and childlike, this is a natural consequence of the relationship between intellectual development and emotional expression. Some degree of immaturity best characterizes both the intellectual and emotional status of retarded individuals.
Nevertheless, retardation is not incompatible with mental illness. Persons with retardation may have the full range of psychiatric disorders, such as depression, schizophrenia, obsessive-compulsive disorder, and phobias. The term "dual diagnosis" commonly applies to individuals who are both mentally retarded and mentally ill.
Task of the Defense Lawyer
Defense lawyers must recognize that their client may be retarded. Mental retardation is often overlooked because many mentally retarded individuals do not appear abnormal and may hide their retardation, if they can. Stigmatized by the label "retarded," they wish to "pass," to be seen as "just like everyone else."4 Absent physical abnormalities, as in Down syndrome (mongolism), the only clue to retardation may be apparent "slowness," vagueness in communicating details, and a seemingly poor understanding of the situation. Therefore, defense lawyers must be alert to the possibility of mental retardation and initiate the diagnostic process by collecting school records and family histories.
Confessions by the Mentally Retarded
The 1966 Miranda decision established a framework to determine a "valid" confession during custodial interrogations.5 Such a confession must result after the suspect is informed of his rights against self-incrimination and to counsel and waives these rights in a voluntary, knowing, and intelligent manner.6Voluntary: "Voluntariness" is difficult to evaluate because we usually do not know what occurred prior to or during interrogation. Although the retarded defendant may not be subjected to threats, his "suggestibility" leaves him open to ill-considered choices. Thus, after many hours of questioning, the defendant may confess to a crime that he did not commit because he thinks that he will please his interrogator and then be allowed to go home. The retarded defendant without a previous criminal history has little or no understanding of the implications of confessing to a crime.
Knowing: Assuming an inexperienced defendant has been "read his Miranda rights," what is likely to be his understanding of them? The word "inexperienced" is stressed because, if there has been a prior criminal history, these rights may be understood. This is not necessarily true, however, unless there is a history of a previous refusal to waive them. Absent such refusal, the retarded defendant -- even with prior arrests -- is likely to view giving a statement as simply an "expected" part of the arrest procedure.
For the naive retarded defendant, the language and meaning of the rights may be incomprehensible. He may understand fragments of what he hears but never grasp its full significance. Part of the difficulty lies in the complex language of the Miranda warning. On a scale that measures the complexity of written material (the defendant may be offered the opportunity to read the rights card as the officer presents it verbally), the Miranda warning is typically at a seventh-grade level of difficulty.7 But the retarded defendant will generally read at not more than a third-grade level and cannot understand seventh-grade language without some explanation. We would not place third graders -- 8-year-olds -- in seventh-grade classrooms with 13-year-olds and expect comparable comprehension. Little understanding of what was heard and/or read can be attributed to the difference between the retarded defendant's intellectual maturity as expressed in "mental age" and "educational age" versus the mental and educational age level of the Miranda warning. Parenthetically, the Miranda warning for juveniles is somewhat simpler, but even this warning is usually at a sixth-grade level and well beyond the educational attainment of the mentally retarded juvenile.
Referring to the rights themselves, the retarded defendant may misunderstand the significance of "silence" and distort it to mean that one should not "sass" a policeman. Even if one understands that he need not answer questions -- a rare occurrence -- and that he is entitled to a lawyer, he never appreciates the right to a lawyer at the time of questioning. For the retarded defendant, access to a lawyer may be tied exclusively to the courtroom. In spite of, or because of, the complex language pertaining to the right to an attorney, he rarely understands that assistance from a lawyer is available during interrogation. Nor does he understand that if he chooses to answer questions without a lawyer present, he can discontinue at any time and ask for one.
Intelligent: An "intelligent" waiver of the right to silence and to an attorney during questioning requires that the defendant understand that, in answering questions, he places himself in jeopardy. He must be aware of the relationship between what is said now and its potential use against him later at trial. The retarded defendant usually lacks such awareness unless he has prior experience of arrest, confession, and trial. He commonly presumes that in exchange for a confession, he can go home.
The retarded defendant most glaringly reveals vulnerability by confessing to crimes that he did not commit. Miranda refers to a defendant, probably retarded, who confessed to two murders that he did not commit. An article describing how retarded individuals answer questions discusses this vulnerable willingness to acquiesce in threatening situations by pleasing an authority figure.8 The author has been involved in two capital cases featuring an initial denial of guilt, an elicited confession, followed by a recantation. After explaining the defendants' retardation, and without physical evidence connecting either defendant with the crime, both defendants were acquitted.
Competency to Stand Trial and/or Plead Guilty
In determining competency to stand trial, courts must decide whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him."9A retarded defendant may understand what he is charged with and be aware of the possible punishment. He may partially understand the role of the principals in a trial and recognize that his attorney is trying to help him. However, a mentally retarded person will have an extremely limited capacity to assist his attorney, thus presenting a competency issue.
The United States Supreme Court has held that there is a higher standard to plead guilty than to stand trial,10 the decision to plead guilty may be the most complex decision for a mentally retarded person. The defendant must deal with hypotheticals -- with what might be (the risk of conviction at trial and a longer sentence) rather than what is (pleading guilty with the hope of a lighter sentence). A decision that only the defendant can make, he may resist acknowledging guilt since intellectual limitations make it difficult to recognize the lesser of two evils. This intellectual process spotlights the capacity to consider possibilities rather than realities, to imagine different futures, a daunting task for individuals who tend to think concretely and who are much more comfortable with what is rather than with what might be.
Culpability and Blameworthiness
Mental retardation diminishes capacity and lessens blameworthiness. In overturning a death penalty verdict, Justice Sandra Day O'Connor, speaking for the Supreme Court, held that the defendant's retardation (IQ of 50 to 63) was relevant to his level of "personal blameworthiness."11 His retardation rendered him less able than a non-retarded person to evaluate the consequences of his conduct and to control his impulses. Justices Brennan and Marshall, arguing to eliminate the death penalty for retarded defendants, considered mental retardation as such a deficit in reasoning ability, impulse control, and moral development as to limit culpability whatever the degree of impairment.12The effect on "moral development" is especially noteworthy. The defendant's forensic evaluation should include a determination of his moral understanding of the crime with which he is charged. While all such defendants know they are charged with committing a "wrong" act, almost uniformly, they are unable to explain why it is wrong. At a re-sentencing trial for a man convicted of raping and murdering an 87-year-old woman, the writer testified to the defendant's lack of awareness of why what he had done was "wrong." Acknowledging that rape was "wrong," the client could offer no explanation for why it was wrong. Pressed for an answer, he admitted not receiving "permission" for the rape! An answer that shows poor understanding of its involuntary nature. Pressed further, in desperation, he blurted out, "Maybe it's against her religion!" The jury gasped at such an explanation.
Strange as it may seem, some criminal defendants do not understand why society wants to punish them. Moral understanding is tied to mental development. For example, when a very young child breaks a glass, he is often punished irrespective of intent. The child does not distinguish between an accident and an intended consequence. Not until about school age does the non-retarded child begin to appreciate "intent" regarding a punishable act. From "intent" the child eventually graduates to "reciprocity," recognizing that others' respect for his rights depends on his respect for theirs. Reciprocity is fundamental to understanding the Golden Rule. However, retarded defendants almost never possess such awareness. While many non-retarded defendants probably lack this awareness as well, at least they are intellectually capable of acquiring it.
"Diminished capacity," as it relates to mental retardation, usually refers to the state of mind at the time of an offense. Given the retarded defendant's cognitive limitations, could he have conceived or carried out the act? But crimes that bring retarded people to the authorities' attention usually have been executed with little or no forethought. They are often impulsive acts, commonly felony murders, with no thought given to the possibility that something could go wrong. Where there are multiple defendants in a crime, some of whom are not retarded, the retarded defendant is a "follower" rather than a "leader." Easily persuaded and exploited, the retarded individual may commit the offense to impress others whose approval and esteem he seeks. Although susceptibility and exploitation are not unique to retardation -- we are all vulnerable to varying degrees -- the combination of suggestibility, intrinsically poor judgment, difficulty in considering consequences, and inability to appreciate illegality compels a diminished level of responsibility in the mentally retarded defendant. Although many jurisdictions do not recognize diminished capacity at the guilt-innocence phase of a capital trial, it can be a significant mitigating factor.
The death penalty is reserved for the most heinous of crimes. However, we punish not only for the act itself but also for the appreciation of the wrongfulness of the crime. A defendant's mental retardation is "mitigating" because of a lesser appreciation of the wrongfulness of the behavior. Although especially relevant at the punishment phase, the mitigating aspect of mental retardation applies -- and should be used -- at all levels of the criminal justice process.
Notes
1.Luckasson, Ruth, D.L. Coulter, E.A. Polloway, S. Reiss, R.L. Schalock, M.E. Snell, D.M. Spitalnik, & J.A. Stark. Mental Retardation: Definition, Classification, and System of Supports (9th ed. 1992).2. Those states are Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, New Mexico, New York, Tennessee, Washington, and, most recently, Nebraska.
3. Baroff, G.S. Mental Retardation: Nature, Cause, and Management (2nd ed. 1986).
4. Edgerton, R.B., & S.M. Bercovici. The Cloak of Competence: Stigma in the Lives of the Mentally Retarded (1976).
5. Miranda v. Arizona, 384 U.S. 436 (1966).
6. Miranda, at 471-77.
7. Baroff, G.S. Establishing Mental Retardation in Capital Cases: A Potential Matter of Life and Death, 29 Mental Retardation 343-349 (1991).
8. Sigelman, C.K., E.C. Budd, C.L. Spoangel, & C.J. Schoenrock, When in Doubt Say Yes: Acquiescence in Interviews with Mentally Retarded Persons, 19 Mental Retardation 53-58 (1981).
9. Godinez v. Moran, 509 U.S. 389, 396 (1993). See also Baroff, G.S. The Mentally Retarded Offender In Manual Of Diagnosis And Professional Practice In Mental Retardation, J.W. Jacobson & J.A. Mulick (eds.,1996) at 311-321.
10. Godinez v. Moran, supra.
11. Penry v. Lynaugh, 492 U.S. 302, 323 (1989)(death sentence later reinstated).
12. Penry, at 346.
Readers wishing to contribute information, ideas or articles for this column should contact :
Tanya Greene
NACDL Death Penalty Research Counsel
83 Poplar Street, NW
Atlanta GA 30303
Phone (404) 688-1202
Fax (404) 688-9440
e-mail tgreene@schr.org