- The Washington Times - Friday, June 21, 2002

The Supreme Court yesterday banned the execution of "mildly retarded" murderers but left each state to define mental boundaries for those who must forfeit their lives for "particularly brutal crimes."
"The practice has become truly unusual, and it is fair to say that a national consensus has developed against it," Justice John Paul Stevens wrote in a 6-3 decision based on a disputed legislative "trend," practices of other nations, academic arguments and polls of public attitudes.
The opinion, joined by Justices Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, cited what Justice Stevens called "powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal."
The decision is likely to reprieve dozens of people with IQs generally below 70, but decisions must be made in each case.
The court said such people can neither be held fully responsible for their crimes nor can they assist properly in their defense so "evolving standards of decency" make the punishment of death excessive and therefore cruel and unusual under the Eighth Amendment to the Constitution.
In a long and impassioned reading of his dissent from the bench, Justice Antonin Scalia discounted "empty talk" about consensus and said the ruling will make murder trials a game, with fakery as an ace in the hole.
"Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," he said. "One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association in the court opinion to realize that the symptoms of this condition can readily be feigned."
That dissent was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas. The chief justice also wrote separately to fault the majority for using views of other countries to determine a U.S. consensus and to question why the 18 death-penalty states that do not execute the retarded may trump the views of the 20 that do.
The ruling sends back to Virginia courts the case of Daryl Atkins, 24, to determine whether his stated IQ of 59 is accurate and whether his circumstances immunize him from execution for the 1996 murder of Eric Nesbitt.
Mr. Nesbitt was kidnapped by Atkins and William Jones, forced to withdraw enough money from an ATM to buy beer, then shot eight times. Jones escaped a death sentence by testifying against Atkins.
Michael Rushford, president of the Criminal Justice Legal Foundation, was among the few to speak out against the ruling, calling it a poor decision that turns jury prerogatives over to lawyers and psychiatrists with few standards for defining retardation.
"I might qualify on a Saturday night after two martinis," Mr. Rushford said. "The majority made a decision on how they felt about this as if they were answering a poll."
The court did not define mental retardation and noted that most standards consider mild retardation an IQ between 50 or 55 and 70, in combination with factors that assess other skills and whether retardation was apparent before age 18.
"Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus," the majority opinion said, explaining why "we leave to the states the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."
Law professor James Ellis of the University of New Mexico, a past president of the American Association on Mental Retardation, said he believes the decision is retroactive and leaves states to decide only "who files papers and when they have to be filed by, in what court."
He denied that retardation can be faked.
"You'd have to be really sophisticated and farsighted to start doing it when you're a kid. There are no documented cases of it ever being possible," he said.
Death-penalty abolitionists none of whom would estimate yesterday the number of condemned prisoners who are thought to be retarded praised the decision, and some trumpeted the principle used to exclude retarded criminals from death row as a precursor to outright abolition of capital punishment.
"We must go further. The Supreme Court and the Congress have still to acknowledge that the system of the death penalty in the United States is broken and needs to be repaired," said Wayne Smith, director of the Justice Project, which seeks to abolish the death penalty.
William F. Schulz, executive director of Amnesty International USA, said in February that 200 to 300 killers with IQs below 70 were on death row in the 20 states that execute the mildly retarded. But even Amnesty International USA avoided that number yesterday.
"Executing the mentally retarded has long been a violation of international standards of justice and decency," said Mr. Schulz, adding that since 1995 only Kyrgyzstan, the United States and Japan have executed the retarded. "The U.S. Supreme Court has finally ushered the United States into the circle of civilized nations when it comes to such executions."
"The next step for the court should be to apply the same exact standard to the execution of youthful offenders," said Steven W. Hawkins, executive director of the National Coalition to Abolish the Death Penalty, adding that at least 44 retarded persons have been executed since executions resumed in 1976.
"The similarity between the execution of mentally retarded people and youthful offenders is that neither class of individuals can be held fully accountable for their actions," Mr. Hawkins said.
It is rare for a justice to read a dissent from the bench, and Justice Scalia's recitation was unusually long and blunt.
"What scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is no more culpable than the average murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded individual who commits a series of 20 exquisite torture-killings?" Justice Scalia asked.
The ruling marked a change from the court's 1989 Penry decision, written by Justice O'Connor, which found no such national sentiment against executing murderers who are retarded.
Unlike the insane, retarded people still face trial.
"Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability," the court said.

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