Offenders with Intellectual and Developmental Disabilities: Sentencing Challenges after the Abolition of Execution in the United States

Ian Freckelton QC

Research output: Contribution to journalEditorialOtherpeer-review

3 Citations (Scopus)


In a sequence of decisions between 1989 and 2014, the United States Supreme Court grappled with intellectual and developmental disabilities in the shadow of the imposition of the death penalty on criminal offenders. In Penry v Lynaugh, 492 US 302 (1989), it jettisoned the notion of ‘mental age’ as a tool for assessing such disabilities. In Hall v Florida, 572 US (2014); 134 S Ct 1986 (2014), it abandoned the terminology of mental retardation and identified intellectual disability as existing on a spectrum, not being just an IQ number, to be determined by reference to various forms of evidence, lay and expert. In Atkins v Virginia, 536 US 304 (2002), it pronounced imposition of the death penalty on persons who are ‘mentally retarded’ to be cruel and unusual punishment in breach of the Eighth Amendment to the Constitution. Importantly, too, the Supreme Court jurisprudence has evidenced an increasing sophistication in awareness of the forensic repercussions of ‘intellectual and developmental disorders’ (IDDs). This editorial traces the evolution of United States intellectual disability jurisprudence in respect of imposition of the death penalty, reflects on the ongoing areas of vulnerability for criminal offenders with IDDs and calls for further consideration to be given to the option for offenders with an IDD to be sentenced to reside in a forensic IDD environment as a humane containment and behaviour modification alternative to other forms of disposition.

Original languageEnglish
Pages (from-to)321-335
Number of pages15
JournalPsychiatry, Psychology & Law
Issue number3
Publication statusPublished - 3 May 2016
Externally publishedYes


  • cruel and unusual punishment
  • death penalty
  • developmental disability
  • expert evidence
  • intellectual disability
  • mental age
  • mental retardation
  • SEM
  • sentencing

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