It Is Time to Abolish the Death Penalty for People with Intellectual Disabilities
Gautam Gulati and Brendan D. Kelly
On 5 October 2021, Ernest L. Johnson, a 61-year-old man, was executed in Missouri, United States. Johnson’s crime was heinous: in 1994 he killed three people in a convenience store. No words can describe the consequences of such an act: three lives lost, many more lives shattered, and psychological wounds that endure to this day. But Johnson had fetal alcohol syndrome and an intellectual disability. In 2002, the US Supreme Court ruled that “executions of mentally retarded criminals are ‘cruel and unusual punishments’ prohibited by the Eighth Amendment”. Even so, a petition against Johnson’s execution was denied by the Missouri Supreme Court.
The execution of people with disabilities continues in the United States, China, and elsewhere. There are many reasons why healthcare workers should call for this practice to cease.
First, people with intellectual disabilities are disproportionately vulnerable to miscarriages of justice arising from psychological vulnerabilities and systemic barriers to accessing justice on an equal basis with others. In the United States a quarter of exonerations relating to false confessions concern people with intellectual disabilities.[1]
Second, legal safeguards for people with intellectual disabilities are either inconsistent or non-existent in many jurisdictions. Among the 183 states that ratified the UN Convention on the Rights of People with Disabilities (the United States has yet to ratify it), fewer than half report disability awareness training for law enforcement officers, as required by the Convention. Such training is essential not only to recognise disability but also to ensure procedural safeguards.[2] State reports in the UN Treaty Bodies Database reveal that only a minority of states are making progress in affording equal access to justice to people with intellectual disabilities.
Third, even within the United States there are significant discrepancies in how intellectual disability is defined in the context of the death penalty.[3] Variations in state precedent and a lack of operational definitions make this area especially prone to miscarriages of justice. In 2019, the US Supreme Court ruled that Texas definitions of intellectual disability for the death penalty were inadequate because they strayed too far from clinical definitions.
Finally, there is no robust evidence that the death penalty is an effective deterrent. Despite this, the UN General Assembly’s sixth resolution on a moratorium against capital punishment had 30 abstentions and 40 votes against.[4]
In societies where people with intellectual disabilities cannot access justice equally and are especially prone to miscarriages of justice, “cruel and unusual” punishments such as execution cannot be justified.
Health professionals have key roles to play in ending this practice: advocating for people with disabilities, providing training for law enforcement officers and the judiciary, working with disability representative organisations, promoting the legal right to health outlined by the World Health Organization, and refusing to participate in capital punishment in any form.
There is no time to lose. Alabama executed Willie B. Smith III, another man with intellectual disability on 21 October 2021. Like Johnson, Smith’s crimes were heinous: kidnapping and murder. Again, there are no words to describe the devastation that such acts cause in the lives of victims and their communities. But it is difficult to see how further killing is helpful or just, especially in light of Smith’s intellectual disability, the Eighth Amendment’s prohibition on “cruel and unusual punishments”, the US Supreme Court’s 2002 ruling against capital punishment for people with intellectual disability, the absence of evidence that capital punishment is a deterrent, and the World Medical Association’s prohibition on physician participation in executions.
This is a time for global voice, for physicians and wider society to call for an end to state-sanctioned killing of people with intellectual disability: it is cruel, unusual, unjust, and pointless.
Gautam Gulati, PhD, is an adjunct professor, School of Law, University of Limerick, Ireland.
Brendan D. Kelly, PhD, is a professor, Department of Psychiatry, Trinity College, Dublin, Ireland.
Corresponding author: Gautam Gulati. Email: ulmlrc@gmail.com
References
[1] S. J. Schatz, “Interrogated with Intellectual Disabilities: The Risks of False Confession,” Stanford Law Review 70(2) pp. 643-90 (2018).
[2] G. Gulati, A. Cusack, J. Bogue, et al., “Challenges for people with intellectual disabilities in law enforcement interactions in Ireland; thematic analysis informed by 1537 person-years’ experience,” International Journal of Law and Psychiatry, 75/101683, (2021).
[3] L. LaPrade and J. L. Worrall, “Determining Intellectual Disability in Death Penalty Cases: A State-by State Analysis.” Journal of Criminal Justice and Law 3(2), pp. 1-28 (2020).
[4] The Lancet, “Achieving progress on ending the death penalty,” The Lancet 10079/P15821 (2017).