- The Washington Times - Monday, May 28, 2001

Supreme Court Justice Antonin Scalia was unexpectedly dismissive last week of the key defense claim against executing retarded murderers, an issue due for high court review in November.
At stake for 200 or more death row prisoners is whether "evolving standards of decency" in the United States no longer condone execution of retarded murderers.
"I have no idea what evolving standards of decency are. Im afraid to ask. Congress knows, though," Justice Scalia said during a speech to the Economic Club of Grand Rapids.
He declined through the court Information Office to amplify or explain that comment for this article.
In a 1989 decision rejecting a comparable claim protesting execution of teen-agers, Justice Scalia wrote that "evolving standards" may be measured by how many states forbid a practice. He said then that agreement by 15 of the 37 death penalty states fell short of meeting the "heavy burden" needed for the court to require that others follow.
By that time U.S. standards had not evolved enough, the court said, in explaining its refusal to block execution of murderers as young as 16. The court applied the absence of "societal consensus" to reach the same conclusion in a 1987 case that sanctioned capital punishment for assailants who lack the "intent to kill."
The new case tests whether standards have changed enough over the past 12 years to overturn the 1989 Penry v. Texas decision that specifically permitted states to execute the retarded.
The new appeal was brought by lawyer Seth Cohen, of Greensboro, N.C., on behalf of Ernest McCarver, 40, who robbed and stabbed Woodrow Hartley, 71, at the Concord, N.C., cafeteria where both worked. Mr. Cohen says McCarver is retarded with the mind of a child 10 or 12.
"The national consensus against the execution of the mentally retarded has now emerged," Mr. Cohen told the high court in his request for a hearing.
"When this was last decided in the 1989 Penry case, only Georgia, Maryland and the federal government banned executing the mentally retarded. Of the 38 states that have capital punishment now, 16 dont execute the mentally retarded," Mr. Cohen said Friday in an interview.
Mr. Cohen later conceded his numbers include some wishful thinking because only the federal government, 14 states and the District of Columbia have yet completed outlawing the practice, although bills are pending in other states.
The high court accepted the McCarver case for full review March 26, after giving him a last-minute stay of execution.
Asked if retardation could be faked, Mr. Cohen said, "I dont think it can be, but you need to talk to officials of North Carolina who believe otherwise."
North Carolina officials point to a psychiatrists trial testimony that McCarvers IQ is 74 and he has adult capabilities, not an IQ of 67 as recorded on a test administered by his lawyers.
"This guy is not mentally retarded. Theres been all kinds of tests done on him, and he does not score below the 70 mark," Deputy North Carolina Attorney General Edwin Welch has been quoted as saying. He currently is barred from discussing the case and refused to do so for this article.
Justice Scalia sounded equally skeptical in last weeks speech when he used the death penalty as an example of how the court interprets the Constitution.
"It changes from age to age to reflect the evolving standards of decency of a maturing society. But I have no idea what evolving standards of decency are. Im afraid to ask. Congress knows, though," Justice Scalia told the audience of several hundred on Wednesday.
Justice Scalia expressed a firmer grasp of the concept when he wrote the scathing 1989 opinion in Stanford v. Kentucky, acknowledging that evolving standards may govern the Eighth Amendment ban on "cruel and unusual punishments."
The fact that 15 states refused to execute people who were 16 or 17 when they killed was a minority view that did not impose standards for "modern American society as a whole," he wrote then.
"It is not the burden of [the states] to establish a national consensus approving what their citizens have voted to do; rather, it is the 'heavy burden of petitioners to establish a national consensus against it," the Stanford decision said.
Mr. Cohen said in an interview that he is ready to meet that "heavy burden" when he argues his case.
He and other opponents of capital punishment predict four and maybe five states, including North Carolina, will change their law before the case is argued, presenting the court with a persuasive trend.
Richard Dieter, director of the Death Penalty Information Center (DPIC), said Missouri and Florida governors have said they will sign bills already passed.
Texas passed its bill Saturday and Connecticut is expected to pass such legislation.
Since 1976, according to the DPIC, 35 mentally retarded persons have been executed.
The number of mentally retarded people among those awaiting execution is estimated at between 200 and 300.


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