In death penalty cases the heinousness of the act is weighed against mitigating factors, such as whether a person was horribly abused as a child or had been in a drug-induced psychosis when the act was committed. Only in those cases where the cold cruelty of the murder outweighs the defendant's troubled circumstances is the death penalty imposed. But there are certain categories of defendants who should never qualify for death, because the nature of their disability makes execution, by definition, a cruel act by the state.

In a case argued last week, the U.S. Supreme Court is being asked to decide whether the execution of people who suffer from mental retardation violates the Eight Amendment's prohibition on cruel and unusual punishment. If there must be state executions, we hope the court sends an unambiguous message that defendants with sharply diminished mental capacity may not be put to death.

Most of us understand that children are not as culpable for their actions as adults, and our law reflects this fact. In 1988, the U.S. Supreme Court said no defendant who was under 16 at the time he or she committed capital murder may be subject to the death penalty. The ruling noted the "inexperience, less education, and less intelligence," of teens. Similar concerns arise in the execution of the mentally retarded. A murderer with substantial mental deficiencies may certainly still be convicted of the crime and sent away for life, but he or she doesn't have the requisite capacity to be judged fully culpable.

There is a growing consensus among the 38 states with the death penalty that executing the mentally retarded is an excessive, even barbaric, punishment. Eighteen of those states have prohibited their execution.

Still, there are plenty of voices who oppose a blanket ban. They argue any exemption for the mentally retarded would invite defense lawyers to claim mental disability for many more accused murderers. That may be true enough, but it has always been up to our adversarial legal system to sort out the truth. Prosecutors will be there to challenge any defense lawyer's claim.

Another issue is the arbitrariness in marking a point at which a defendant is judged to have insufficient mental capacity to face execution. Current social science says a person with an I.Q. score of 70 or below is mentally retarded. But does that mean a murderer with an I.Q. of 71 has the culpability of someone with full mental faculties? The line has to be drawn somewhere, and there will no doubt be many above-the-cut-off-point judgments to be made. But those inexact judgments should not prevent us from recognizing as a nation how inappropriate it is to execute someone with the intellectual capacity of a child. Of course, the easiest and best course would be to simply abolish the death penalty entirely.

According to a new study by two law professors at Emory University, defendants with mental impairments are far more likely to confess to crimes they didn't commit. They frequently waive their Fifth Amendment rights against self-incrimination without really understanding what they have given up. As the authors of the study wrote: "Justice is not achieved by executing people who cannot comprehend the most rudimentary legal concepts." We don't execute children for this reason, so why do we want take the life of someone who has the mind of a child?

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