- The Washington Times - Monday, June 24, 2002

Other decisions from the Supreme Court term that ends this week will have far greater effect than its 6-3 vote to ban the execution of retarded murderers, but few are likely to stir greater emotions on or off the bench.
Death-penalty opponents immediately called for expanding the ruling to free murderers age 17 and younger from execution as the next step toward outlawing capital punishment, while state prosecutors feared a new wave of challenges to the death penalty.
"I'm dancing on my desk," said Irwin Schwartz, president of the National Association of Criminal Defense Lawyers, which echoed Amnesty International and the National Coalition to Abolish the Death Penalty. "It takes us one more step toward the elimination of the death penalty in the United States."
"In a way, the U.S. Supreme Court is joining and now leading the state-by-state movement to reform the death penalty," said Kent Willis of the American Civil Liberties Union of Virginia, the state that produced the Daryl Atkins case.
Justice Antonin Scalia fears such predictions are true and used the bluntest terms to criticize the court for chiseling away at the penalty without public consent.
"There is something to be said for popular abolition of the death penalty. There is nothing to be said for its incremental abolition by this court," he wrote.
The most visceral reactions to Thursday's order affecting the 20 states that allow such executions were triggered by Justice John Paul Stevens' disclosure that the constitutional ban is based in part on U.S. opinion polls and legal arguments by the European Union.
"Polling data shows a widespread consensus among Americans even those who support the death penalty that executing the mentally retarded is wrong," Justice Stevens said, invoking that data to bolster his view that killers with IQs below 70 are so much less blameworthy that execution is excessive punishment.
Justice Stevens did emphasize the majority did not base its decision solely on surveys, adding that the surveys' "consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue."
"There is a national consensus, but it is in favor of the death penalty," shot back Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. But he said that exempting a category of killers whose execution offends even some death-penalty proponents could help protect capital punishment.
Analyzing the 28 polls dating to 1986 used by the majority, Chief Justice William H. Rehnquist said they often asked loaded questions, and their scientific accuracy did not meet court standards.
He said the court's discovery of "an evolving standard of decency" was a mere justification of a decision the majority already intended to issue.
The rulings Thursday in Atkins v. Virginia and five other cases leave eight of the term's 75 cases to be decided before the court starts summer recess this week.
The first of two major constitutional questions about schoolchildren examines a Tecumseh, Okla., policy requiring drug tests as a condition of joining the band, Future Farmers of America, chess club and all other extracurricular programs.
The other education case challenges use of tax-paid vouchers to reimburse parochial school tuition for needy students. That Cleveland case raises the issue of whether vouchers violate the First Amendment prohibition on laws "respecting an establishment of religion."
The remaining death-row case could affect as many as 800 sentences in nine states. Arizona prisoner Timothy Ring argues he should not be executed because a judge not a jury decided "pecuniary motives" aggravated the killing of armored car driver John Magoch in a holdup.
The high court ruled two years ago in Apprendi v. New Jersey that juries must decide any fact other than a prior conviction that increases a sentence's severity.
In the retardation issue, estimates on the number of condemned prisoners who may be affected vary from 98 to 245. Two Virginia Supreme Court justices said Atkins, whose recorded IQ is 59, had the intellect of a child age 9 to 12. The court left defining retardation standards to each state.

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