DPIC Analysis — Intellectually Disabled Defendants of Color, Foreign Nationals Disproportionately Subject to the Death Penalty

Defendants of col­or and for­eign nation­als who are intel­lec­tu­al­ly dis­abled are dis­pro­por­tion­ate­ly like­ly to be sen­tenced to death, a Death Penalty Information Center analy­sis of cas­es involv­ing intel­lec­tu­al­ly dis­abled defendants suggests. 

The review of more than 130 cas­es involv­ing defen­dants whose death sen­tences have been over­turned because of the con­sti­tu­tion­al pro­hi­bi­tion against exe­cut­ing per­sons with intel­lec­tu­al dis­abil­i­ty found that more than 80% of intel­lec­tu­al­ly dis­abled defen­dants sen­tenced to death are per­sons of col­or. Two-thirds of the intel­lec­tu­al­ly dis­abled defen­dants sen­tenced to death are African American (87, or 66.4%); 19.1% (25) are white; 13.7% (18) are Latinx; and one (0.8%) is Asian. Eleven (8.4%) are for­eign nation­als, rep­re­sent­ing near­ly 5% of all foreign nationals known to have been sen­tenced to death in the U.S. (Click to enlarge map.)

DPIC Executive Robert Dunham, who con­duct­ed the analy­sis, said “[t]he num­bers fur­ther con­firm what researchers have repeat­ed­ly doc­u­ment­ed in oth­er con­texts: that vul­ner­a­ble defen­dants who belong to com­mu­ni­ties that have his­tor­i­cal­ly been dis­crim­i­nat­ed against by the crim­i­nal legal sys­tem face an ele­vat­ed risk of being wrong­ful­ly sen­tenced to death. The find­ings are espe­cial­ly sig­nif­i­cant now, as the fed­er­al gov­ern­ment and sev­er­al states are rush­ing to exe­cute a num­ber of intel­lec­tu­al­ly dis­abled Black men with­out afford­ing them mean­ing­ful judi­cial review of legal claims that, if proven, would require their death sen­tences to be vacated.”

On December 11, 2020, the fed­er­al gov­ern­ment plans to exe­cute Alfred Bourgeois, who med­ical experts say is intel­lec­tu­al­ly dis­abled. His intel­lec­tu­al dis­abil­i­ty claim was denied by a Texas fed­er­al court that relied on med­ical­ly irrel­e­vant fac­tors that the Supreme Court, in anoth­er case, declared uncon­sti­tu­tion­al. Bourgeois filed a peti­tion in the U.S. Supreme Court on December 3 seek­ing a stay of exe­cu­tion so his claim can be con­sid­ered based on legal­ly and med­ical­ly appro­pri­ate fac­tors. Corey Johnson, who faces exe­cu­tion by the fed­er­al gov­ern­ment on January 14, 2021, has also nev­er been afford­ed a hear­ing on his intel­lec­tu­al disability claim.

Intellectually dis­abled death-row pris­on­ers also face immi­nent exe­cu­tion in sev­er­al states. Alabama death-row pris­on­er Willie B. Smith III is sched­uled to be exe­cut­ed on February 11, 2021. A fed­er­al appeals court agreed that Smith would have been inel­i­gi­ble for exe­cu­tion had Alabama applied a con­sti­tu­tion­al­ly valid stan­dard in eval­u­at­ing his intel­lec­tu­al dis­abil­i­ty claim. However, the court allowed his death sen­tence to stand, say­ing the state court deci­sion that reject­ed his intel­lec­tu­al dis­abil­i­ty claim had been decid­ed before the Supreme Court declared their approach to the issue uncon­sti­tu­tion­al. Whether Smith could be exe­cut­ed, the court ruled, was pure­ly ​“a mat­ter of tim­ing.” On July 2, 2020, the U.S. Supreme Court declined to hear Smith’s case.

Pervis Payne is one of 14 Tennessee death-row pris­on­ers with active death sen­tences who can­not obtain judi­cial review of their intel­lec­tu­al dis­abil­i­ty claims because of defects in the state post-con­vic­tion review sys­tem. Payne, who also has a strong claim of inno­cence, was sched­uled to be exe­cut­ed December 3, but received a reprieve because of coro­n­avirus con­cerns.

DPIC’s review exam­ined demo­graph­ic data com­piled by researchers and cap­i­tal defense orga­ni­za­tions on death-penal­ty cas­es involv­ing defen­dants whose death sen­tences have been over­turned because of intel­lec­tu­al dis­abil­i­ty. The data, com­piled by the Habeas Assistance and Training Project, the Cornell Center on the Death Penalty Worldwide at Cornell Law School, Justice360, and the Death Penalty Information Center through December 1, 2020, iden­ti­fied 131 for­mer death-row pris­on­ers who obtained relief from their death sen­tences as a result of court deci­sions, plea agree­ments, or stip­u­la­tions by pros­e­cu­tors that they had intel­lec­tu­al dis­abil­i­ty. At least sev­en pris­on­ers with intel­lec­tu­al dis­abil­i­ty also have been removed from death row and resen­tenced to life in prison through the com­mu­ta­tion process. Five of the men exon­er­at­ed from death row in the U.S. also have intellectual disability.

More peo­ple with intel­lec­tu­al dis­abil­i­ty have been sen­tenced to death in Texas than in any oth­er state. The researchers iden­ti­fied 19 pris­on­ers whose death sen­tences have been over­turned because of intel­lec­tu­al dis­abil­i­ty, many of whom received relief only after the Texas courts recon­sid­ered their cas­es after the U.S. Supreme Court declared the state’s pri­or method of deter­min­ing intel­lec­tu­al dis­abil­i­ty to be uncon­sti­tu­tion­al. DPIC has iden­ti­fied at least 14 pris­on­ers who were exe­cut­ed after the Texas courts reject­ed their intel­lec­tu­al dis­abil­i­ty claims by apply­ing an unconstitutional standard. 

The U.S. Supreme Court also declared the Florida Supreme Court’s method of deter­min­ing intel­lec­tu­al dis­abil­i­ty to be uncon­sti­tu­tion­al, strik­ing it down in Hall v. Florida in 2014. After ini­tial­ly rul­ing that it would recon­sid­er all cas­es in which the state courts had uncon­sti­tu­tion­al­ly reject­ed intel­lec­tu­al dis­abil­i­ty claims, the Florida Supreme Court rescind­ed its opin­ion in May 2020. In Phillips v. State, the court announced it would apply Hall only to cas­es whose appeals were decid­ed after that deci­sion was issued.