Intellectual disability and capital punishment

Imposing the death penalty on people with intellectual disabilities is a crime against humanity

“Barbarism,” observed the French philosopher Alain Finkielkraut, “is not the inheritance of our prehistory. It is the companion that dogs our every step.” And one might hope that this insight will dog the conscience of anyone reading Amnesty International’s Global Report Death Sentences and Executions 2022 (2023), which states that known executions in 2022 – “excluding the thousands believed to have taken place in China” – saw an increase of 53 per cent from 579 in 2021 to 883 last year.

Further, Amnesty notes, “[p]eople with mental or intellectual disabilities were under sentence of death in several countries, including Iran, Japan, Maldives, and US.” The human rights non-governmental organisation Reprieve cites the definition of intellectual disability by the World Health Organisation as “a significantly reduced ability to understand new or complex information and to learn and apply new skills. This includes impaired intelligence with impaired social functioning, which has a lasting effect on development.” International law prohibits the death penalty for the mentally or intellectually disabled, with Article 1 of the Convention on the Rights of Persons with Disabilities stating that individuals with disabilities include “those who have long-term… intellectual… impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.

In a shameful example of how the life of an intellectually disabled person was extinguished to fuel the political ambition of a morally vacuous individual, Ricky Ray Rector – who in 1981 killed two men before effectively lobotomising himself with a self-inflicted gunshot to the head – was executed on 24 January 1992 in Arkansas. Rector left the pecan pie from his last meal “for later”. Rejecting clemency, the then Arkansas Governor Bill Clinton even fled the New Hampshire election campaign trail to supervise the process, thus cementing a vote-grabbing “tough on crime” message while ignoring the most basic of rights available to the intellectually disabled Rector, which his lawyers sought in vain to assert on his behalf. Further indicting the soon-to-be President’s role in this sordid episode, Christopher Hitchens, in No One Left to Lie To (1999, p32) notes that “at the close of Mr Clinton’s tenure as Governor, Arkansas, was the only state in the union that did not have a civil rights statute”.

More recently, intellectually disabled victims have included Nagaenthran K Dharmalingam who was executed on 27 April 2022 in Singapore; and Benjamin Cole, diagnosed with paranoid schizophrenia and brain damage, who was executed on 20 October 2022 in Oklahoma.

 How encouraging, then, that Profs Gautam Gulati and Brendan Kelly of the University of Limerick and Trinity College Dublin, respectively, have written an article titled ‘It is time to abolish the death penalty for people with intellectual disabilities’, which was recently published in the Health and Human Rights Journal (11 April 2023). One of several persuasive points they make is that intellectually disabled individuals are “disproportionally vulnerable to miscarriages of justice” and they cite evidence from the United States, where “a quarter of exonerations relating to false confessions concern people with intellectual disabilities”. Among the key roles to be undertaken by health professionals in ending this practice, write Gulati and Kelly, is the refusal “to participate in capital punishment in any form”.

The involvement of health professionals in capital punishment was considered by a British Medical Association (BMA) working party in Medicine Betrayed: The participation of doctors in human rights abuses (Zed Books, 1992). Making the grim observation that “[d]octors have historically played a key role in the development or refinement of execution technologies” including the guillotine, gassing, electrocution, and lethal injection, the working party acknowledges that the relationship of the doctor and condemned prisoner “whose incompetence keeps him from the execution chamber” is freighted with difficulty. One dilemma arising from this relationship can be distilled to a simple question: “Should I attempt to improve the prisoner’s mental wellbeing and risk the prisoner’s life, or should I deliberately mismanage the patient in order to ensure his survival?”

It is a question that goes beyond the hypothetical, with the working party citing two cases from the United States. One was that of Gary Alvord – incarcerated in a psychiatric hospital aged seven and diagnosed as a paranoid schizophrenic aged 13 – who was convicted of murdering three women in 1973 and sentenced to death. Before his scheduled execution in 1984 three psychiatrists found Alvord incompetent and he was committed for psychiatric treatment to a state hospital where doctors refused to treat him, pointing out their ethical dilemma of making a patient well enough to be executed. Alvord died of natural causes in 2013. The only means of freeing physicians from such dilemmas, the working party contend, is to ensure that intellectually disabled prisoners have their death sentences commuted.

As Gulati and Kelly argue, it is 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.”