After a great deal of deliberation, cautious debate, legal advice, research, and consultation, CCDC has decided to actively support SB 182, which would repeal Colorado’s death penalty. We deliberated carefully and at length as to whether or not the bill raised an issue crucial to disability rights and, if so if there was a legitimate reason to urge repeal while maintaining our ongoing opinion that people with disabilities should take full and equal responsibility. With the help of our legal team, we decided that the answer was firmly “YES” to both questions.
I wish now to focus on some salient issues brought forth from our discussions and analysis.
The death penalty falls heavily on the disability community writ large. “As of June 2014, approximately 32 of the last 100 people subject to capital punishment in the United States demonstrated evidence of an intellectual disability. During that same period, approximately 53 of the last 100 people sentenced to the death penalty demonstrated symptoms or diagnoses of mental illness. Expanding the pool to include individuals who have demonstrated diminished capacity (such as youthful offenders individuals with traumatic brain injuries, who are not included in either of these categories despite still-developing brains and brain injuries having similar effects on the defendant’s culpability, and, therefore, suitability for the death penalty, the list grows to 87 of the last 100.”
Further, although there have been legal advancements that might alter these statistics in the future, the lack of a standard has left state governments floundering in the search for solutions and drawn in the Supreme Court, which has issued a long and winding path of decisions. Beginning with Atkins v. Virginia, the Court has held that it was a violation of the Eighth Amendment’s prohibition on “cruel and unusual punishments” to execute a person with an intellectual impairment. However, the Court has also left it up to state authority to determine how to determine if a person indeed has such an impairment. Subsequent cases show that this has left states unequal in the application of the death penalty and left adrift. Clear but inflexible rules, such as those that rely solely on IQ scores, have been struck down.
The Texas Court of Appeals, which applied a test it had developed in a case called Ex Parte Briseño that was based on a mixture of medical standards from 1992 and the Texas court’s conclusions as to “wh[en] a consensus of Texas citizens would agree that a person should be exempt from the death penalty[,]” was struck down as reliant upon outdated standards that amounted to a mixture of lay misperceptions and stereotypes. In this time of uncertainty of standards, hyper-prevalence of people with disabilities on death row across the nation, and despite being in a state that uses the death penalty as rarely as Colorado (once since 1967), we argue that Colorado’s own standard on determining intellectual impairment is so high, that an indigent person with a disability and an overworked public defender is too likely to fall through the cracks (and on to death row) for this issue to be ignored. A ban would ensure that no person with a disability, regardless of whether the individual could meet the “clear and convincing evidence” standard under Colorado law, would be put to death.
Support of a ban would show that CCDC stands in solidarity with groups against whom the death penalty has been historically weaponized.
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