Criminal justice system overview and principles

¶ … Supreme Court's recent decision to ban the execution of mentally challenged individuals raises important ethical issues. Judges must be able to determine if a person is indeed mentally challenged. While the legal system and psychology have made important insights into this issue, there is still some inconsistency in the definition and application of mental retardation in the judicial system. Accordingly, an analysis of the ethical principles underlying the issue is useful. Ultimately, a combination of both deontological and teleological approaches may provide the best ethical guidelines for such a complex issue.

The ethical factors involved in handing down any death sentence are complex. This is especially true when the accused is a mentally challenged individual. In the American criminal justice system, the court must be assured that an accused individual is fully responsible for their actions in order to hold responsible for their crime. In other words, in order to prove guilt, we must know that the accused in fully aware of and responsible for their behavior.

Currently, there is precedent for considering diminished mental faculties as a reason to legally absolve individuals from the responsibility of committing their crime. This is why the defence of "not guilty by reason of insanity" is acceptable in American courts. In this scenario, the accused is not held responsible for their actions, because their mental state precludes them of responsibility for any criminal actions. Thus, given this precedent, it may be easy to argue that a mentally challenged person, by virtue of their diminished intellectual capacity, is not responsible for their criminal actions.

Activists for the rights of the mentally challenged have long argued that people with mental retardation face additional difficulties in protecting their legal rights and securing a fair trial. They argue that individuals with mental retardation are not sufficiently mentally capable of determining whether to wave constitutional or statutory rights. Further, they argue that people with mental retardation to not have the intellectual capacity to determine if they should confess without the presence of council. Activists also note that people with diminished intellectual abilities are highly susceptible to coercion, pressure and intimidation, and that this may result in a number of false confessions (Human Rights Watch).

Advocates of the mentally challenged have pushed to have the death penalty revoked for all mentally challenged individuals. As a result of this action, federal and state governments have slowly moved to stop the executions of mentally challenged people.

Prior to the Supreme Court decision earlier this year, governments of several of the forty states that allow the death penalty had enacted legislation that would prohibit executing mentally challenged individuals. Further, the federal government had passed legislation that prohibited the execution of people with mental retardation in 1994 (American Association on Mental Retardation; Fact Sheet).

In June of 2002, the Supreme Court issued a ruling that ended the enactment of the death penalty on mentally challenged individuals. In the case of Atkins v. Virginia, the court held that the execution of death row inmates with mental retardation was a violation of the Eighth Amendment (Death Penalty Information Center; Supreme Court).

Prior to Atkins v. Virginia, the Supreme Court had ruled, in a narrow vote, in the case of Penry v. Lynaugh in 1989 that the execution of death row inmates with mental retardation was not a violation of the Eighth Amendment. Justice Sandra Day O'Connor noted that there was no "national consensus" against executing individuals with mental retardation. As of the Penry v. Lynaugh case in 1989, only Maryland and Georgia prohibited executions of mentally challenged persons. By the time of the Supreme Court's 2002, ruling in the Atkins v. Virginia case, eighteen states, as well as the federal government, had banned those executions (Death Penalty Information Center; Supreme Court).

The American Bar Association (ABA) established a policy that opposed the execution of mentally challenged individuals. The ABA noted that the execution of these individuals was unacceptable, whether they were guilty or innocence. The ABA called for a nationwide moratorium on the death penalty in 1989.

Despite this recent movement, there are some serious criticisms of the changes to the law. Michael Welner sees a potential danger in non-retarded inmates who attempt to take advantage of the changes. He suggests that some inmates, like Ernest McGarver on death row in North Carolina has recently had an IQ dip fro 70 to 88 in earlier years to a recent low of 67. While the specific validity of this suggestion is unclear, it certainly illustrates a potential for the abuse of IQ tests. Welner goes as far as to suggest that some inmates may fake or try to fool IQ tests in order to stay the electric chair.

Even in a court system that has conceded that mentally challenged individuals should not be given a death sentence, there are other important ethical considerations. It may be helpful to consider a specific instance. Let us examine a hypothetical situation that could occur in any courtroom in the United States, where the sentencing of mentally challenged individuals is no longer allowed.

When a judge is faced with the decision to determine whether or not a mentally challenged should be held accountable for their crime, may factors come into play. Importantly, the judge must first determine if the accused is in fact, mentally challenged to the degree that the judge cannot impose the death penalty. The judge must decide the degree of mental impairment that make a person no longer responsible for their crime in a court of law. As such, the judge must set specific criteria for this assessment, likely including IQ score, and life skills abilities. In making this assessment, a variety of ethical approaches must be examined.

In The Ethical Foundations of Criminal Justice, Richard Hall examines major ethical theories that underlie issues of criminal justice. Especially important is a discussion of how these theories of ethics relate to the issue of criminal and civil liability.

The complex interaction of ethical theories and individual culpability under the law is especially important when determining the degree to which mentally challenged individuals are responsible for their actions in a court of law. If ethics seem to dictate that a mentally retarded person is not responsible for their actions, then it is arguably ethically reprehensible to sentence such a person to death for a crime the did not commit knowingly. Further, it becomes crucial to examine the same ethical concerns when attempting determining if an individual is indeed mentally retarded, and, as such, can no longer face execution for their crimes.

In assessing the degree of mental impairment that make a person no longer responsible for their crime in a court of law it is important to consider the opinions of the psychological profession, in addition to ethical considerations. The American Association on Mental Retardation notes that mental retardation begins before the age of 18, and that it places severe limitations on intellectual functioning and adaptive behavior. These limitations are expressed in difficulties in social, practical and conceptual adaptive skills (Luckasson, 2002).

Currently, the intellectual criterion for the diagnosis of mental retardation is an IQ test score of approximately 70 or below. Given the standard error of measurement for most IQ tests is about five, the criterion is often extended to 75. However, mental retardation is assessed by not only limitations in intellectual criterion, but also limitations in adaptive behavior (Luckasson, 2002).

In order to determine limitations in adaptive behavior, an individual must be compared against the general populations. On standardized measures, significant limitations in adaptive behavior are defined as performance at least two standard deviations below the mean in specific types of adaptive behaviour. Adaptive behavior skills include money concepts, conceptual skills, reading and writing, social skills, naivete, and occupational skills (Luckasson, 2002).

Despite a reasonable consensus among mental health professionals as to the definition and criteria of mental retardation, individual state statues had set up significantly different criteria for establishing and defining mental retardation. Prior to the Supreme Court's decision to ban the execution of mentally challenged individuals, eighteen states had separately determined these specific criteria. The criteria used by each state were often significantly different, arguing that appears to be a great deal of room for the identification and classification of mental retardation.

Specifically, Florida Statutes, Sect. 921.137 noted that mental retardation was to be defined as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18" (Death Penalty Information Center; State Statutes). Court-appointed experts were to be charged with determining if an accused was mentally retarded, and were to report their findings before the final sentencing hearing.

Colorado's criteria were similar to Florida, and they did not specify a specific numerical IQ level. Colorado Rev. Stat. Sect. 16-9-401-403 further allowed that the requirements for documentation could be waived in the case of extraordinary circumstances (Death Penalty Information Center; State Statutes).

In contrast, Arkansas noted that mental retardation was presumed with any IQ of 65 or below, but that the assumption was rebuttable. Ark. Code Ann. Sect. 5-4-618 (1993) noted criteria for mental retardation included "subaverage general intellectual functioning accompanied by significant deficits or impairments in adaptive functioning, and manifested in the developmental period" (Death Penalty Information Center; State Statutes).

Kentucky was more objective in its criteria. Ky. Rev. Stat. Sect. 532.130-140 noted "significantly subaverage general intellectual functioning is defined as an IQ of 70 or below" (Death Penalty Information Center; State Statutes).

Given the difficulties of the legal system in developing a consensus as to the criteria for mental retardation, it may be useful to look at pure ethical approaches. Simply put, ethics is simply the study of the moral aspect of human behavior. Ethics does not necessarily divine moral rules from religious principles, as it is rooted more firmly in the foundation of philosophy than religion.

Ethics ask some questions that are crucial questions about the human condition, including some that are absolutely crucial in the debate over whether the mentally retarded should face the death penalty. These include discussion of the nature of free will and determinism, and the degree to which intelligence and moral faculty (or the ability to tell right from wrong) are linked.

Many ethical theories speak to the issues involved in determining the degree of mentally impairment required before a person is no longer considered competent to stand trial. These include teleological ethics, deontological ethics, aretaic ethics, divine command theory, and others.

There are several main branches of ethics. Results-based ethics is often referred to as "consequentialism" or "teleological ethics" and notes that morality is based on the consequences of an act. Utilitarianism is one of the key branches of teleological ethics. Founded by Jeremy Bentham, utilitarianism argues that a morally correct rule is the rule that gives the greatest good to the greatest number of people.

According to Bentham, if allowing mentally challenged individuals to face the death penalty gives the greatest good to the greatest number of people, then it is a morally correct rule. In applying teleological ethics a decision to allow mentally challenged individuals to face the death penalty could easily be linked to popular opinion. If the greatest good is given to the greatest number of people by allowing the death penalty to mentally challenged people, then teleological ethics argues that this is the ethically correct action (Blackburn; Hall).

Similarly, teleological ethics argues that a judge must determine if a judging and individual to be mentally handicapped enough to avoid the death penalty gives the greatest good to the greatest number of people. Critics of the teleological approach could argue that this approach could easily result in sentencing a mentally retarded individual to death. In a case where there is a large public demand for justice, and the accused is borderline mentally retarded, teleological ethics would seem to argue that the judge should determine that the accused is not mentally retarded. In this case, teleological ethics argues that allowing the accused to face the death penalty serves the greatest good to the greatest number of people.

Standards-based ethics, sometimes called "deontological" theory or "duty ethics" have a slightly different interpretation of moral goodness than teleological ethics. Deontological ethics argues that an act is morally good act if it meets a moral standard. Immanuel Kant was one of the greatest proponents of this theory of ethics (Denise; Hall).

Deontological ethics argues that the decision to allow mentally challenged individuals should be decided on the basis of whether of not the act meets a moral standard. Here, there is a great deal of room for interpretation. If an overriding moral standard is the equivalent of "Thou shall not kill," then allowing capital punishment is not consistent with the overriding moral standard, and is not morally good. However, if a moral standard is the equivalent of "an eye for an eye," then capital punishment is consistent with this standard, and is morally good.

Similarly, in determining if the accused is mentally challenged to the degree that the judge cannot impose the death penalty, deontological ethics suggests we should appeal to a moral standard. Again, if this moral standard opposes all murder, then the judge should determine that the individual is mentally retarded. However, if the moral standard is to extract justice, then the judge should rule that the individual is mentally competent to stand trial, and thus potentially face the death penalty.

The divine command theory views a morally correct action as one that conforms to God's will. According to Divine command theory, murder is wrong because it goes against one of God's commandments. Critics often argue that the greatest failing of the theory is the problems with the interpretation of the Bible (Blackburn).

Criticisms against divine command theory are often similar to those against deontological ethics.

The Bible states two seemingly contradictory statements, "Thou shall not kill" and "an eye for an eye." These arguments seem to argue both for and against allowing capital punishment. Further, using the divine command theory is also troublesome in determining if an accused is mentally challenged to the degree that the judge cannot impose the death penalty. Again, divine command theory can be seen as inconsistent.

Ethical intuitionism argues that moral rightness should be based on intuition. In this type of ethics, any rule or act that is contrary to the conscience of an individual is morally wrong (Klemke). The ethical intuitionist would argue that sentencing a mentally challenged individual to death is wrong because it goes against the conscience of individuals. Similarly, a judge should let their conscience or intuition in guiding him or her to determine if an individual is or is not mentally challenged enough to be sentenced to death for their crime.

However, it is easy to argue that ethical intuitionism fails to provide an adequate guide in matters of law, as it does not provide the standard or rule necessary to make fair and consistent judgements. It is entirely possible for two different judges to have completely opposing "intuitions" about an accused individuals mental capacity.

Virtue ethics, or aretaic ethics, is an ancient form of ethics that can be traced back to Aristotle's Nicomachean ethics. Aristotle argued that moral virtue develops because an individual practices characteristics that are morally good. As such, courage and honesty appear in an individual's character, because that individual has practiced courage and honesty in their actions and thoughts (Klemke, Blackburn).