The issue of whether capital punishment is an acceptable sentence for a mentally retarded person first appeared in the public forum with Jerome Bowden’s execution. Bowden was accused and later convicted of robbing and murdering a Columbus, Georgia woman in 1976. Bowden had a measured I.Q of 59, and could not count to 10.

Bowden appealed his death sentence on the grounds that he was mentally incompetent at the time of trial. He claimed that he was told by Detective Myles that if he confessed, Myles would “keep [him] from going to the electric chair.” Bowden’s council presented evidence that much of his education was spent in special education classes for slow learners, and he could not read or write very well.

During a stay of execution, another I.Q. test was given to Bowden. He scored 65, higher than before but still below the 70 threshold of mental retardation. About the test, Bowden told lawyers, “I tried real hard. I did the best I could.” The State Board of Pardons and Paroles did not grant clemency to Bowden and he was executed in 1986.

In response to Bowden’s execution, in 1988 Georgia passed a law barring the execution of people with mental retardation. It was the first such law in the nation, and led to several other states adopting similar laws. The law set the standard of mental retardation to mean “having significantly sub-average general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period.”

In 2002, the U.S. Supreme Court ruled that it was unconstitutional to sentence mentally retarded persons to death. The court cited a dissenting opinion from a lower court (which ruled against such unconstitutionality), which stated “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” The court found that there was a national consensus, citing laws in several states, notably the Georgia law, against such punishment. In overturning the lower court ruling, the Supreme Court said “today or society views mentally retarded offenders as categorically less culpable than the average criminal.”

At the same time, the Supreme Court gave wide discretion to the states in determining who was defined as mentally retarded. The court wrote, “Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Therefore, the court referenced Ford v. Wainwright (which regarded insanity) saying, “We leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”

Additional Resources

Justia U.S. Law Jerome Bowden v. Robert Francis: http://law.justia.com/cases/federal/appellate-courts/F2/733/740/459225/

Justia U.S. Law 2010 Georgia Code Proceedings upon plea of insanity or mental incompetency at time of crime: http://law.justia.com/codes/georgia/2010/title-17/chapter-7/article-6/part-2/17-7-131/

The Supreme Court of the United States Daryl Renard Atkins, Petitioner v. Virginia: http://www.law.cornell.edu/supct/pdf/00-8452P.ZO