Saturday, October 26, 2013

US Supreme Court: Death Penalty, IQ & Intellectual Disability

Use of the death penalty on people with intellectual disabilities has been the focus of very heated debate for decades.  The US Supreme Court will be hearing a challenge on the IQ criteria used to establish intellectual disability as it relates to being eligible for the death penalty.  The original landmark case was decided in 2002: Atkins v. Virginia 536 U.S. 304. The ruling held that the execution of a person deemed intellectually impaired was a direct violation of the 8th Amendment of the Constitution.  It is considered, “cruel and unusual punishment”.  

The current challenge comes from the use of IQ to determine intellectual disability. Presently an IQ of 70 or less would result in being found intellectually impaired.  There is a long history of court challenges around IQ testing in general, especially in the field of special education. IQ alone has not been sufficient to find any student eligible for services. A full comprehensive assessment is needed.  The American Association of Intellectual and Developmental Disabilities discusses the criteria which go into making an accurate diagnosis. IQ is one component of this but at no time can IQ alone be used to make this determination.  

There have been specific cases in the states where IQ has been the main determining factor in using the death penalty. This is the piece which is being challenged and heard by the US Supreme Court.  The original decision did not provide clear guidelines and left the decision to determine intellectual disability with the states.

People with intellectual disabilities who are convicted of killing another human being do have to be held accountable. How this happens needs to be carefully considered.  To allow someone not to be held accountable is problematic and at the same time we must consider the circumstances of each individual.  Deciding on a fair way to determine intellectual disability is a matter of life and death.  It is a task which must be looked at with the utmost prudence.  These discussions must include people with intellectual disability. The rulings will impact everyone and everyone’s voice must be represented, especially those for whom it will have the greatest impact.

This is a very controversial topic and warrants a very in-depth debate which will yield imperfect answers. It is situated in a history where people with intellectual impairments were subjected to inhumane treatment, the target of a eugenics movement as well as a long history of not receiving an adequate education.  It is just not as simple or as narrow as it has been made out to be at times. A definition alone does not account for this horrific and recent history. It was not until 1975 when the Education for All Handicapped Children Act PL 94-142(now IDEIA) was first put into law addressing the educational needs of students with special needs. This was the first time schools were mandated to educate all children, including those with intellectual disabilities. Many court cases followed with challenges made regarding who could benefit from an education. The reality is we have only been attempting to provide a free and appropriate public education to people with disabilities in an aggressive manner for the past 38 years.  This is a very short period of time. Inclusive practices have been evident for even less.  There is no way to measure the impact this complicated history has in the current capacity of each person with an intellectual disability. Although none of this is an excuse to commit a crime, nor is it a reason not to hold someone accountable; rather it is representative of a problematic human history where certain groups are marginalized, discounted and silenced.

If we are really going to look at the death penalty as it relates to intellectual disability, all voices must be included. If they are not, we will continue to marginalize a group which has already been subjected to the judgments of the dominant culture and perpetuate a society which is selective on its application of social justice.


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