- The Washington Times - Thursday, February 21, 2002

A national consensus favors an end to executions of the mentally retarded as cruel and unusual punishment, the attorney for a Virginia death-row inmate told the Supreme Court yesterday.
James E. Ellis, representing Daryl Renard Atkins, said the public's attitudes about those executions have changed since 1989, when the court upheld them by a 5-4 vote.
He pointed out that then just two states Georgia and Maryland banned the execution of the mentally retarded. Now, 18 of the 38 states with capital punishment on the books have such bans. Also, the federal government does not execute the mentally retarded.
The justices seemed most interested in whether such a national consensus against executing the retarded actually exists.
"What is your definition of 'consensus'?" Chief Justice William H. Rehnquist asked. "How many states out of the 50 do you need for a consensus?"
According to Eighth Amendment jurisprudence, "cruel and unusual" is defined with reference to "the evolving standards of decency that mark the progress of a maturing society."
Last year the court was set to take up the case of a North Carolina man on death row who claimed he was retarded, but the legislature in that state passed a law banning executions of the retarded, making the case moot. Virginia's General Assembly earlier this week killed the second of two bills that would have ended such executions.
Atkins was convicted in 1998 of murder and robbery, and two seperate juries sentenced to him to death. But one test showed Atkins has an IQ of 59; people with IQ scores below 70 typically are considered mentally retarded.
Most of the justices seemed to be sympathetic to Mr. Ellis' argument, grilling Virginia's attorney, Pamela A. Rumpz, about why she did not think attitudes have changed over the last 13 years.
Ms. Rumpz responded by noting that no overwhelming consensus has formed, calling apparent changes merely swings of the pendulum of public opinion.
"We have a blip in the radar screen of public opinion. It may change in two years. It may change in three years," she said. "The court should not halt an experiment."
Of the nine justices, Justice Antonin Scalia appeared to be most skeptical about Mr. Ellis' argument that a national consensus had been formed, saying the court should look to the actions of state legislatures for a consensus.
"We have to be very careful about finding a new consensus," Justice Scalia said. "We can't go back."
Justice Scalia also said the court's 1989 decision in Penry v. Lynaugh, which declared executing the mentally retarded did not violate the Eighth Amendment's protection against cruel and unusual punishment, gives protections to the retarded.
During sentencing, he noted, those convicted of a capital crime can present evidence that they are indeed retarded.
Justice David H. Souter compared executing the mentally retarded to executing a 5-year-old, saying the retarded have about as much cognitive ability to understand what is going on as a young child. The court ruled in 1988 that executing people under 16 years of age was unconsitutional.
"Let's say five years," Justice Souter said. "Would you say that 5-year-olds should be executed?"
Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said in an interview that equating the mentally retarded to children is also misleading.

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