Kansas Association of Centers for Independent Living

PO Box 311

Salina, KS 67402-0311

Senate Judiciary Committee

January 25, 2005

SB 14: The Death Penalty relating to Mental Retardation

Chairman Vratil and members of the Committee, thank you for the opportunity to provide testimony to you regarding Senate Bill 14. My name is Tanya Dorf, and I am the chair of the governmental affairs committee for the Kansas Association of Centers for Independent Living (KACIL). I am also the Executive Director of one of the KACIL members, Independence, Inc., in Lawrence.

Background

KACIL’s mission is to coordinate efforts within Kansas, the United States, and internationally to the extent that these efforts will further independent living for all. KACIL advocates for the civil and human rights of Kansans with disabilities, regardless of age. Centers for Independent Living (CILs) are at the core of the disability rights movement. CILs provide a unique type of service for Kansans with disabilities by ensuring they have the independent living and advocacy skills they need to live and work independently in the community.

Atkins v. Virginia

In 2002 the U.S. Supreme Court ruled in Atkins v. Virginia that executing a person with mental retardation constitutes a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. The Court did not define mental retardation, leaving that decision up to the states, but it did make it clear that it is unconstitutional to put someone with mental retardation to death. The Court also made it clear that there is a national consensus that applying the death penalty to persons with mental retardation offends national standards of decency.

Justice Stevens wrote for the majority in the Atkins decision,

“Our independent evaluation of the issue reveals no reason to disagree with the judgment of the legislatures that have recently addressed the matter and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our evolving standards of decency, we therefore conclude that such punishment is excessive and that the Constitution places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”

Kansas Law

State law in Kansas does not allow the death penalty to be applied to persons with mental retardation. But, Kansas state law does not adequately address the definition of mental retardation when used in capital murder cases. The seventeen other states which bar execution of persons with mental retardation use a clinical definition of mental retardation. SB 14 would apply a clinical definition of mental retardation to capital murder cases, which is very similar to the new language adopted by the Virginia General Assembly in response to the Atkins decision. It also closely mirrors the definition of mental retardation used by the American Association on Mental Retardation (AAMR).

AAMR is the oldest and largest interdisciplinary organization of professionals concerned about mental retardation and related disabilities. The AAMR traditionally has been responsible for setting the national standard definition of mental retardation. Their definition, revised in 2002, states:

“Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.”

The proposed definition in SB 14 is very similar:

“’Mental retardation’ or ‘mentally retarded’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior.”

“’Significantly subaverage general intellectual functioning’ means performance which is two or more standard deviations from the mean score on a standardized intelligence test specified by the secretary of social and rehabilitation services.”

Because mental retardation is not something that can be definitively diagnosed like cancer or heart disease, it is important for professionals to have a standard to use and guidelines with which to apply that standard. The language in SB 14 gives Kansas the proper standard and provides for the guidelines to be adopted by the state agency responsible for services for Kansans with mental retardation.

KACIL strongly supports SB 14. This bill will ensure Kansans with mental retardation will continue to be exempt from the death penalty and that any challenge to the existing law in the courts will not succeed. The definition of mental retardation used in SB 14 gives the state the tools it needs to properly determine whether a defendant has mental retardation and should be subject to the death penalty.

Above all, KACIL stands for the civil and human rights of all Kansans with disabilities. By ensuring Kansans with mental retardation will not now nor in the future be subject to the death penalty, the Legislature can also uphold the civil and human rights that we all hold dear. On behalf of the members of KACIL, I urge you to pass SB 14.

Conclusion

Thank you for the opportunity to provide testimony to you regarding the death penalty and its application to Kansans with mental retardation. I am happy to provide any additional information at the Committee’s request.

Tanya Dorf, KACIL Governmental Affairs Committee Chair

785-841-0333 tanyad@independenceinc.org

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