Now, the court has agreed to revisit the issue, perhaps in part because of recent decisions by many state legislatures to exempt persons with mental retardation from capital punishment under state law. Texas is likely to be part of the rising chorus denouncing the execution of such persons, and it should not shy away from acting before the court's anticipated decision. Texas should also make sure that its prohibition is framed appropriately so that persons with mental retardation are not mistakenly included among those whom the state executes.
Several arguments support exempting persons with mental retardation from the death penalty.
As a matter of practice, the death penalty is imposed in only a fraction of all homicide cases, and the guiding principle of modern death penalty law has been that the death penalty should be reserved for the most heinous offenders. This differential in cognitive ability reduces the moral culpability of such offenders and justifies exempting them from society's most extreme punishment. The choice, here, it must be remembered, is not between execution and impunity, but between death and life imprisonment. Offenders with mental retardation also face special risks in our criminal justice system. Research confirms that persons with mental retardation are more likely to be induced into false confessions, in part because of a desire to please authority figures or to mask their limited intellectual ability.