Intellectual disabilities on death row: the Montgomery case

Notwithstanding the several appeals to suspend the death penalty and a psychiatric evaluation in extremis, Lisa Montgomery was executed with a lethal injection on 13 January 2021 in the prison of Terre Haute, Indiana.

Montgomery’s sentence (with unanimous verdict) was announced in October 2007, in a Missouri federal court. A brutal murder caused it: in 2004, the woman had strangled Bobbie Jo Stinnet, a pregnant 29-year-old, cut her womb and kidnapped her baby – who survived. 

Her lawyers Kelley Henry, Amy Harwell, and Lisa Nouri have tried everything to avoid death penalty, sending a petition to the Inter-American Commission on Human Rights and stating that Montgomery’s trial did not respect the minimal standards of equity and that therefore it violated international law. Moreover, according to the lawyers the US government itself was in part responsible for Lisa’s crime, since it failed to protect the woman from serious child abuse and sexual violence.

Montgomery suffered from bipolar disorder, epilepsy of the temporal lobe, post-traumatic stress disorder, dissociative disorder, psychosis, traumatic cerebral lesions and probably also from foetal alcohol syndrome (a permanent disability that manifests itself in the foetus exposed, during intrauterine life, to alcohol consumed by the mother during pregnancy).

Her own family has a history of mental disorders such as schizophrenia, bipolar disorder, and depression.

According to the court’s documents and investigations, the woman was abused by her mother in extreme and sadistic ways through physical and psychological violence. Regular sexual abuses by her step-father and other men, both individually and in group, must be added to the picture.

Some statements by Montgomery in the months preceding the murder are further evidence of her mental state: the woman repeated she was pregnant, without realizing it was not possible, since she had been forced to undergo sterilization after the birth of her fourth child.

Notwithstanding the harshness of the facts, Lisa’s story and its ending are not that different from the stories of several other prisoners on death row. Painful stories that have in common psychological disorders and abandonment: from the social services, educational system, law enforcement, health system, from the people who should have granted them protection and justice against violence and abuses.

Researchers from the Death Penalty Information Center – a non-profit organization that investigates death penalty – have found out that more than a third of prisoners executed in the United States had suffered a cerebral lesion or presented an intellectual disability, and almost two out of five had been diagnosed with a severe mental illness; almost two third of them had experienced serious childhood trauma.

This has been confirmed by the study “Deadly Justice: A Statistical Portrait of the Death Penalty” from the University of North Carolina, whose authors state that 43% of people executed in the twenty-first century had been diagnosed with mental disorders – more than twice the percentage of the general population, whose percentage holds at 18%.

The prisoners’ most common diagnoses are personality disorders and depression, but severe illnesses such as schizophrenia, post-traumatic stress disorder, and bipolar disorder have also higher percentages than the general population.

The percentages of childhood trauma – further risk factor for mental health disorders – are remarkably higher among executed prisoners. The American Health Department estimates that roughly the 10% of American children are either abused or neglected, but this percentage increases to 40% among executed persons.

Again, a study by the American Psychological Association has found out that "severe and multiple forms of abuse were endemic” in a sample of 43 prisoners on death row. 41 of them reported they had suffered physical abuse as children and the 80% of the group witnessed violence; all of them said they had been neglected and almost all came from families with problems of substance abuse.

This clear correlation was highlighted also by a paper by the National Institute of Justice, which underlines how children subject to physical or sexual violence or neglectfulness are more likely to commit offences and violent crimes when adults. The statistics from the Centers for Disease Control and Prevention (an important monitoring organization on public health in the United States) similarly show that childhood trauma has long-term effects that affect the incidence of neurodevelopmental disorders, cognitive deterioration, mental disorders, and of becoming author or victim of violence.

“Executed people are usually not the worst among the worst lawbreakers, but the most vulnerable.” Robert Dunham states, executive director of the Death Penalty Information Center. “They are seriously mentally ill, cerebrally damaged, intellectually disabled, or chronically abused, or a mixture of these factors.”

Such a history does not imply that these individuals, after perpetrating a crime, should not receive a verdict of imprisonment: it is death penalty that is (further) questionable when dealing with intellectual disabilities.

International standards are fairly clear in this regard.

According to article 3 of the resolution 1984/50 of the Economic and Social Council of the United Nations, indeed, “Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane.”

On 20 June 2002, the US Supreme Court established in Atkins v. Virginia that the death sentence on people with intellectual disabilities violates the ban of the Eighth Amendment against cruel and unusual punishments (thus nullifying the sentence Penry v. Lynaugh of 1989).

This does not mean that executions are suspended. It means that states with death penalty must each develop procedures to guarantee that people with intellectual disabilities are not executed. But it isn’t an easy task.

Intellectual disabilities are described by the American Association on Mental Retardation as "significantly below the average of the general intellectual functioning”. The following factors are considered to define a person as such: intelligence quotient (usually below 70), difficulties in facing daily life, the display of deficits before adulthood.

The problem is that these factors are often difficult to define in the context of a trial. For instance, some states have defined intellectual disabilities with a fixed number of IQ, even though experts agree that numbers alone do not determine much. According to the law in Idaho, a person with an IQ of 71 could be sentenced to death, even if qualified as intellectually disable. 

Prosecutors and defence attorneys fight in court to establish when and how this “certification” can be given, not to mention those cases in which this condition is not even presented to the jury during the trial.

The Montgomery case is exemplary in this regard: the jury never saw the MRI of the woman’s brain, which showed loss of tissue in the parietal lobe and in the limbic system, and abnormally big ventricles that indicate cerebral damage. Not even the PET scans were taken into consideration, yet they showed anomalies in the cerebral metabolism, indicative of cerebral dysfunctions.

Even if there are many ranges of intellectual disabilities, this condition always entails severe limitations of the ability to understand consequences and the gravity of one’s actions and to control one’s own behaviour. A transgressor with a severe mental disorder should not be included in the category of the most culpable lawbreakers, for whom death penalty is reserved; rather, he/she should be looked after and treated.

As Sandra Babcock – founder and director of the Cornell Center on the Death Penalty Worldwide and consultant to the legal team of Montgomery – declared to the Guardian, Lisa (like many other death-row prisoners) «is not the worst of the worst murderers. She is the most desperate among desperate people».