THE BLOG

For the Mentally Disabled, Some States Are Deadly

02/23/2015 06:42 pm ET | Updated Mar 28, 2015

One of the major problems that I have with the death penalty is its randomness. Geography, for instance, matters in ways that has nothing to do with the crime. A person who commits murder in a state without the death penalty will not be sentenced to death, while someone who commits the exact same crime, under the exact same circumstances, in a death penalty state may be sentenced to death.

Geography -- and not the crime -- also matters in the way that individual states interpret United States Supreme Court decisions, which in turn determines who will live, and who will die.

In 2002, the Supreme Court unequivocally ruled that intellectually disabled persons cannot be sentenced to death. The Court said that executing an intellectually disabled person is not consistent with our nation's standards of decency. And their ruling makes good sense. If the death penalty is supposed to be reserved for the "worst of the worst" offenders, then people with extremely low I.Q.s -- who often process the world with a childlike understanding of right and wrong, life and death, harm and permanence -- should be viewed as less culpable than other offenders.

But once the Supreme Court issues a decision, states have to apply it. And there seems to be a couple of states so hell-bent on imposing the death penalty, that they seemingly do anything to move forward with an execution -- even when it involves an execution of intellectually disabled.

A few weeks ago, Georgia executed Warren Hill. Seven doctors -- including three hired by the State of Georgia -- agree that Hill has an intellectual disability. Courts in Georgia twice found that Hill was intellectually disabled using the same "preponderance of the evidence" standard applied by every other state in the country. But Georgia higher courts have ruled that, at least in Georgia, intellectual disability must be evaluated under the strictest criminal standard of "beyond a reasonable doubt." Notwithstanding the medical findings in his case, and without any scientific basis for Georgia's use of this near impossible standard of evidence, Hill was executed. He would not have been executed anywhere else.

On January 29, in Texas, Robert Ladd was executed. Ladd had an IQ of 67. A 67 I.Q., under virtually anyone's definition, qualifies a person as intellectually disabled. But Texas added a twist to its test for intellectual disability: A person is not intellectually disabled for purposes of execution if the defendant exhibited "forethought" or "advance planning" in committing the crime. Texas is alone in using that standard, meaning Ladd would most likely be not eligible for execution in any other state.

Here's the thing. If it's unconstitutional to execute the intellectually disabled, then states shouldn't do it. They shouldn't even want to do it. People with intellectual disabilities are among our most vulnerable citizens. There is no constitutional -- and certainly no moral -- basis for allowing the intellectually disabled to be executed for actions which they may not have ever been able to fully comprehend.

It's pretty simple. Under our Constitution, you can't kill a person who is intellectually disabled.

But for Hill, the outcome of their cases depend not on their limited intellect, but rather on the vagaries of geography.

Life and death decisions should rest on far more than that.