(April 2003 to March 2005) on considering, debating,
and crafting the Resolution that is quoted in this entry. It
was approved by the ABA in August 2006, after having
previously been endorsed by the American Psychologi-
cal Association, the American Psychiatric Association,
and the National Alliance on Mental Illness.
One of the important initial questions facing the Task
Force was whether mental disability should constitute a
per se bar to capital punishment—that is, whether indi-
viduals with certain kinds of mental disability should
not need to demonstrate anything further in order to
be excluded from consideration for the death penalty.
There were differing views among Task Force members
on this question. The vast majority of questions in men-
tal health law require consideration not only of mental
disability but also of specific functional legal capacities
that vary according to the legal question, and the rela-
tionship between the mental disability and the func-
tional capacities. For example, an individual with a
severe mental disability would not be adjudicated
incompetent to stand trial only on the basis of that dis-
ability; the court would also consider the functional
legal criteria involving a rational and factual understand-
ing of the individual’s legal situation and the capacity to
assist counsel in his or her own defense. The defendant
who experiences deficits in these functional legal capac-
ities that are caused by symptoms of a severe mental dis-
ability is much more likely to be adjudicated
incompetent to stand trial by a court.
So it did not appear sufficient to craft a resolution
on the theme that those with mental disability should
be excluded from the death penalty on that basis
alone. Throughout most of the Resolution, the Task
Force used the consideration of mental disability,
functional legal criteria, and causal connection in for-
mulating its language.
To complicate matters further, however, there is
some important case law, in the form of decisions by
the U.S. Supreme Court, indicating that in some
instances the defendant’s mental condition or age is
sufficient by itselfto exclude that individual from capi-
tal punishment. In Atkins v. Virginia(2002), the U.S.
Supreme Court decided that the Eighth Amendment of
the Constitution bars capital punishment for individuals
with mental retardation on the basis that it is a cruel and
unusual punishment. This decision was followed by
another case,Roper v. Simmons(2005), in which the
Supreme Court held that execution of those under the
age of 18 at the time of the offense was also constitu-
tionally prohibited under the Eighth Amendment.Faced with the choice of whether to apply “mental dis-
ability” to capital punishment as the Supreme Court did
in Atkinsand Roper,with the disability itself constitut-
ing sufficient grounds for an exclusion, or to use the
more established approach used in virtually all other
questions in mental health law, the Task Force adopted
a two-dimensional approach. Consistent with Atkins,
the first prong of this Resolution proposes that those
with significant limitations in their intellectual func-
tioning and adaptive behavior (criteria associated with
mental retardation) be excluded from consideration for
capital punishment on that basis alone. However, indi-
viduals with “severe mental disorder or disability”
would need to demonstrate both the existence of such a
disorder/disability and the resulting impairment in
functional legal capacities at the time of the offense (the
Resolution’s second prong) or following sentencing
(the third prong). This two-dimensional approach has
the advantage of not only recognizing the Court’s hold-
ing that a specific kind of disability (mental retardation)
is sufficient in itself to exclude defendants with this dis-
ability from capital sentencing but also acknowledging
the longstanding demand for considering both nature of
disability and relevant functional legal capacities in
other areas of mental health law.
Finally, the Task Force sought to fill an important
gap in the law regarding competence for execution,
which applies when a defendant who receives a death
sentence begins to demonstrate symptoms of a severe
mental disability after sentencing but before execu-
tion. In Ford v. Wainwright(1986), the U.S. Supreme
Court held that execution of an incompetent prisoner
constitutes cruel and unusual punishment, which is
proscribed by the Eighth Amendment. However, the
Court did not specify what criteria should be used to
determine whether the prisoner is incompetent for
execution. The Resolution provides suggested criteria
that expand on the language used by Justice Lewis
Powell, in his concurring opinion in Fo rd, to the effect
that the prisoner’s understanding of the nature of cap-
ital punishment and why it is imposed in this particu-
lar case ought to be the relevant test. (Since Justice
Powell’s opinion concurred with the majority on
many points but was not part of the majority opinion,
his language regarding the criteria for competence for
execution did not become officially recognized as part
of the Fo rd decision and hence applicable to other
cases involving competence for execution. Some
states have adopted this language as part of their law
in this area, but they are not required to do so as theyAmerican Bar Association Resolution on Mental Disability and the Death Penalty——— 21A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 21