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A similar argument can be made that the execution of defendants suffering from mental retardation is unlawful in international law and hence is torture when applied to them. The treaties mentioned above are less clear when it comes to execution of the mentally retarded.

Persons with mental retardation fall into the bottom two to three percent of the population in intellectual functioning. They are unlikely to achieve a mental age greater than 12 years old. Those who have committed a crime have a diminished capacity to understand right from wrong and the legal consequences of their actions. In this sense, they are comparable to juvenile offenders. If it is wrong to execute those under age 18 at the time of their crime, it would also be wrong to execute someone whose mental age was considerably under 18.

The Civil and Political Rights Covenant states that the death penalty should be restricted to the "most serious crimes." The standard of what is most serious includes not only the gruesome facts of the crime, but also the culpability of the person charged. Less than 2 percent of those who commit murder receive the death penalty in the U.S. It seems absurd to maintain that the mentally retarded, who are in the lowest 2 percent in terms of intellectual functioning, are somehow among the highest 2 percent in culpability.

Moreover, Article 16 of the Torture Convention requires states to prohibit any official cruel, degrading or inhuman treatment, even if it does not fall under the strict definition of torture. Again, what is degrading or cruel may be in eyes of the beholder, but even in the U.S., 24 states and the federal government do not allow the execution of a mentally retarded defendant. Justice William Brennan, in dissenting from the Supreme Court's decision which permitted such executions, wrote that "the execution of mentally retarded individuals is 'nothing more than the purposeless and needless imposition of pain and suffering . . . .'"

Thirty-three defendants with mental retardation have been executed in the U.S. since 1976. There has been some legislative movement towards stopping these executions. When the U.S. Supreme Court in 1989 upheld the constitutionality of the death penalty for those with mental retardation, it did so at a time when only one state forbade this practice. Today, 12 states and the federal government have a specific exemption for those with mental retardation.

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