Abstract

Mental retardation is an invented bureaucratic category, currently undergoing radical rethinking and likely renaming, that includes many who have biologically based brain disorders, but is itself determined on functional criteria that are purely arbitrary. People with MR are socially vulnerable and thus are more likely to be "naíve confessors," "naíve defendants," and "naíve offenders." That is most likely the rationale and justification for the Supreme Court's decision, in Atkins v. Virginia, to exempt the class from execution. Although the decision is to be applauded as a step in a more humane direction, it is problematic to use an indirect, artificial, and insufficiently inclusive category to determine who should or should not be executed. Limited social intelligence is a characteristic of a wide range of brainbased syndromes and disorders, including many who fall above the upper IQ limit and, thus, are ineligible for the MR label and the legal protections associated with it. A more equitable, and logical, policy would be to extend execution exemption to all who demonstrate the same kinds of vulnerabilities, especially if they can be linked to some brain-based medical condition, regardless of whether one qualifies for the label of MR.