States must now define mental retardation

The U.S. Supreme Court ruled earlier this month that states are barred from executing anyone convicted of a capital crime who is mentally retarded.

The high court ruled that executing retarded criminals violates the constitutional prohibition against "cruel and unusual punishment."

This ruling followed the action of 18 state legislatures, including Missouri's, that had passed similar bans into law. (Some 38 states have laws allowing capital punishment.)

One result is that defense attorneys and state lawmakers will have to revisit the question of the definition of mental retardation.

"They've opened a big door, and there's no way to close it," said Doug Moreau, a district attorney in Louisiana and a member of the National Association of District Attorneys. "Mentally retarded according to whom? The justices sent it to the states and said, 'Finish out the rest of it.'"

Although the legal definition of retardation used in the 18 states varies slightly, most require an IQ under 70 and evidence that the person has difficulty navigating daily life.

Many prosecutors, lawmakers and judges worry that it is possible for some criminals to fake mental retardation to escape death row.

"You're going to create a cottage industry of psychologists who are after-the-fact test-givers who will make people mentally retarded who have never been mentally retarded in their lives," said Oregon prosecutor Joshua Marquis.

Mental health experts reply that the combination of a diagnosis by a medical professional and legal standards requiring evidence of mental disability long before a defendant's crime was committed make it nearly impossible to feign mental retardation.

Certain to follow are continuing legislative debates and judicial struggles over the legal definition of retardation.