Death Penalty

Study: Cognitive impairment, other mitigating factors present in cases of most executed inmates

A study of 100 inmates executed in 2012 and 2013 has found that the “overwhelming majority” had mitigating factors in their backgrounds such as cognitive impairment and childhood trauma.

The study in the Hastings Law Journal found that nearly nine out of 10 of the executed offenders fell into one or more of these categories: They had an intellectual impairment, had not reached the age of 21 at the time of the crime, suffered from a severe mental illness, or endured childhood trauma. More than half fell into multiple categories.

The U.S. Supreme Court has barred the execution of the intellectually disabled and juveniles. Yet those with similar deficits are regularly executed, according to the Death Penalty Information Center’s summary of the findings. The center and a Washington Post op-ed list other study findings:

• One third of the executed inmates had intellectual disabilities, borderline intellectual function or traumatic brain injuries.

• Fifty-four percent had a severe mental illness such as schizophrenia, post-traumatic stress disorder or bipolar disorder.

• Half had severe childhood trauma such as physical abuse, sexual molestation, domestic violence, chronic poverty and homelessness.

• Twenty percent were under age 21 at the time of the offense.

Harvard law professor Charles Ogletree noted the study in the Washington Post op-ed. “Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows,” Ogletree wrote.

Ogletree referred to Justice Anthony M. Kennedy’s majority decision this May in Hall v. Florida, which struck down Florida’s bright-line standard for determining which inmates have an intellectual disability that exempts them from the death penalty.

What was important about the decision, Ogletree says, was Kennedy’s statement that imposing the death penalty on an intellectually disabled person “violates his or her inherent dignity as a human being” because the “diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment.” It was the first time, Ogletree says, that the court said there is “no legitimate penological purpose” in executing an offender with a functional impairment.

“This is why I see an end coming to the death penalty in this country,” Ogletree wrote. “The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability.”

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