Last Friday, ABC World News Tonight with Charles Gibson covered the South Dakota murder trial of Daphne Wright, a deaf woman whose attorney is arguing that she should not be subject to the death penalty because of difficulties she will experience in understanding the trial and communicating with jurors in the sentencing phase.  The Wright case raises the question, as the ABC website put it, “Should the Deaf get Death?”

            In the 2002 case of Atkins v. Virginia, the U.S. Supreme Court held that executing a person with an intellectual disability violates the Eighth Amendment of the U.S. Constitution’s prohibition of “cruel and unusual punishment.” In overturning a 1989 ruling that had upheld the constitutionality of the death penalty for defendants with intellectual disabilities, the Court noted that evolving standards of decency had led them to question whether executing people with intellectual disabilities would serve the purposes of deterrence or retribution for criminal behavior. The Court also questioned the capacity of defendants with intellectual disabilities to get a fair trial or to provide adequate assistance to their counsel.

This term, the Court is considering whether to extend the holding of Atkins and other cases to prohibit executions of some convicted criminals with psychiatric disabilities. In the case of Panetti v. Quarterman, the Supreme Court is considering the question: “Does the Eighth Amendment permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of a severe mental illness, has a delusional belief as to why the State is executing him, and thus does not appreciate that his execution is intended to seek retribution for his capital crime?”

Although there are many good reasons to take the position that the death penalty should be ruled unconstitutional across the board, the recent trend of identifying classes of disabled defendants for whom the practice should be considered unconstitutional is troubling. When we make arguments that people with mental or sensory disabilities should not be subjected to the death penalty because they cannot understand the consequences of their actions or they are inherently incapable of making an effective defense, we reinforce society’s tendency to underestimate the capacity of people with disabilities to make choices for themselves and live with the consequences of those choices. 

Artificially low expectations can make it more difficult for disabled individuals to obtain employment, obtain custody of a child in the wake of a divorce, adopt a child, and lead a life characterized by self determination, equal opportunity, and some degree of freedom. Historically, governments have tried to limit the ability of people with a variety of disabilities to marry, have children, own property, vote, drive a car, and engage in other life activities that many people take for granted. Thanks to laws like the Americans with Disabilities Act, these kinds of discriminatory legal prohibitions are less common. Nonetheless, unnecessarily negative and paternalistic attitudes about people with disabilities are still alive and well.

To be sure, there are serious problems with how our justice system fails to accommodate the needs of criminal defendants with disabilities. In the 2004 case of Tennessee v. Lane, a criminal defendant in a wheelchair had to fight all the way to the Supreme Court to force the State of Tennessee to acknowledge its obligation to hold its proceedings in an accessible courtroom. In the context of deaf and hard of hearing defendants, many jurisdictions fail to provide qualified sign language interpreters, real time captioning, and other accommodations that would ensure effective communication for the defendant at every stage in the criminal justice process. Moreover, these failures can and should be taken into account in determining whether the defendant’s constitutional right to a fair trial has been violated.