Cruel and Unusual Punishment

Human rights and death-penalty abolition groups hailed a landmark decision by the U.S. Supreme Court Thursday which ruled the execution of mentally retarded to be cruel and unusual punishment.

Delivering the majority (6-3) opinion in the case of Atkins v. Virginia, Justice John Paul Stevens wrote, "We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty." Thursday's ruling cited a growing national and international consensus favoring a ban on executing the mentally incompetent.

Atkins v. Virginia involved a defendant, Daryl Atkins, who was convicted for the 1996 robbery and murder of Airman Eric Nesbitt. Atkins has an I.Q. of only 59 (any number less than 70 is considered a major indicator of mental retardation). Activists say the decision marks a major victory for the anti-death penalty movement in the United States.

"Executing the mentally retarded has long been a violation of international standards of justice and decency," said William Schulz, executive director of Amnesty International USA (AIUSA). "The U.S. Supreme Court has finally ushered the United States into the civilized nations when it comes to such executions."

Since 1995, only three countries -- Kyrgyzstan, the U.S. and Japan -- are reported to have carried out executions of mentally retarded defendants, according to Amnesty International. Since 1977, the total number of mentally retarded prisoners or those with significant brain damage executed in the United States was at least 35, the London-based group said.

The practical effect of Thursday's decision could be considerable.

Twenty states still permit the death penalty to be imposed on mentally retarded individuals. They will have to both change their laws and commute the sentences of mentally retarded prisoners awaiting execution. There are some 2,455 prisoners currently on death row in those 20 states; an estimated five percent of them may be mentally retarded, according to New York-based Human Rights Watch (HRW).

A total of 3,701 persons currently await execution across the United States. Some prosecutors are warning that they are likely to be flooded with questionable claims of retardation by prisoners already on death row.

"If you're still breathing and have been convicted and sentenced to death, now you need to get to a phone and call your lawyer to have a shrink come interview you, and tell him a square looks like a circle to you," Michael Rushford, president of the California-based Criminal Justice Legal Foundation, told the Washington Post.

Some death-penalty foes said the Court's reasoning may be important in cases where juveniles tried in adult courts face the death penalty. According to AIUSA, the Missouri supreme court temporarily halted the June 5 execution of a juvenile convicted of murder pending Thursday's ruling.

Most scholars of criminal law have long argued against executing mentally retarded defendants for the same reason that they have opposed the death penalty for children: their unreliable memory and inability to process information make it difficult for them to cooperate in their own defense.

"Being characteristically eager to please authority, many detainees with mental retardation waive their rights to remain silent and even make false confessions," according to HRW which last year published a report called "Beyond Reason, The Death Penalty and Offenders with Mental Retardation." In a recent Virginia case, the defendant Earl Washington confessed to crimes he never committed and was sentenced to death. He was later exonerated when DNA testing revealed his innocence.

And many argue it is wrong to execute the mentally disabled even when they are guilty. "Although they commit terrible crimes, by virtue of their disability, they should never be considered among the most culpable offenders for whom, in the United States, the death penalty is ostensibly reserved," according to Jamie Fellner, director of HRW's U.S. Program.

The United States has come under considerable international pressure to change its capital punishment laws. Nine recently retired senior diplomats signed an amicus brief in a 2001 case arguing that executing the mentally retarded defendant, Ernest McCarver "will strain diplomatic relations with close American allies, provide diplomatic ammunition to countries with demonstrably worse human rights records, increase US diplomatic isolation, and impair other United States foreign policy interests."

In April, the United Nations Commission on Human Rights approved a resolution urging those U.S. states that impose capital punishment to exempt the mentally retarded. "To execute a mentally impaired offender flies in the face of international human rights standards," according to Sue Gunawardena-Vaughn, director of Amnesty International-USA's campaign to abolish the death penalty.

While the Court noted Washington's international isolation on the issue, it placed stronger emphasis on domestic public opinion, including strong statements in recent years by major U.S. religious, psychological and criminology organizations, as well as recent laws passed by a number of state legislatures. A Gallup poll released last month found that 82 percent of the public opposes executing the mentally retarded and only 13 percent support it.

"It is not so much the number of these states (that have banned the practice) that is significant, but the consistency of the direction of the change," Stevens wrote. "...It is fair to say that a national consensus has developed against it."

The three dissenting justices -- Clarence Thomas, Antonin Scalia, and William Rehnquist -- strongly disagreed, objecting in particular to the references to foreign laws and strength of public opinion in the Court's decision.

"Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," wrote Scalia. Writing of the U.S. Catholic Conference -- which filed an amicus brief in the case -- he said, "The attitudes of that body regarding crime and punishment are so far from being representative, even of the views of Catholics, that they are currently the object of intense national (and ecumenical) criticism."

The dissenting judges also criticized the ruling for overturning a 1989 decision which found explicitly that executing the mentally retarded did not violate the Constitutional ban on cruel and unusual punishment. The 1989 decision was mainly influenced by the absence of a "national consensus" against the practice. At the time, only two states prohibited execution of the mentally retarded. Thirteen years later, 16 more states and the federal government itself have all enacted laws banning the practice.

"Thirty states have either banned the death penalty altogether or stopped the execution of those with mental retardation," noted Richard Dieter, who heads the Death Penalty Information Center (DPIC). "There is no doubt that there is now a national consensus on this issue." Even President George W. Bush, who as Texas governor oversaw the execution of at least three defendants with IQs of less than 70, has now changed his mind. "We should never execute anybody who is retarded," he said last year.

But the Court ruling still leaves the door open for future legal challenges by giving the states the authority to determine what constitutes mental retardation. Any such definition is certain to be tested in the courts. And the broader struggle for a ban on capital punishment continues.

"Concerns remain about other aspects of the death penalty," Dieter said, "but at least today we have stopped a practice that most Americans and the rest of the world finds abhorrent."

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