Justices Review Executions for Mentally Impaired

The growing movement to ban the execution of mentally retarded killers took another step forward Wednesday as the Supreme Court heard new evidence that virtually every state has backed away from imposing the ultimate punishment on inmates with diminished mental capacity.

“The evidence is now clear: The American people have reached a consensus” against executing these individuals, James Ellis, a University of New Mexico law professor, told the court, arguing that such executions violate the constitutional ban on cruel and unusual punishment.

In 1989, when the justices last considered the issue, only two states that imposed the death penalty exempted those who were mentally retarded. Now 18 states have enacted such exemptions.

And most other pro-death penalty states, including California, have not executed anyone with an IQ of 70 or below, the standard definition for retardation.

Justice Stephen G. Breyer said it appeared that only two states--which he did not name--would still go ahead with executing such a defendant. He noted that “48 [of the 50 states] represents a consensus, a settled moral judgment.”

The Supreme Court itself is well aware of the trend.

Last year, the justices voted to take up an appeal from Ernest McCarver, a mentally retarded defendant from North Carolina. But before the case could be heard, the North Carolina Legislature met and abolished capital punishment for retarded inmates.

The justices dismissed the McCarver case and took up a similar appeal in a Virginia case. Earlier this month, the Virginia Senate voted to exempt retarded individuals from the death penalty. But because that measure has not passed the state Assembly, the justices are proceeding to decide the issue. Nonetheless, the actions by state lawmakers seem to signal the growing opposition to such executions.

Little attention was paid Wednesday to the facts of the Virginia inmate’s case. Daryl Atkins, then 18, and another man confronted an Air Force serviceman outside a convenience store near Hampton, Va., and forced him at gunpoint to withdraw money from an automated teller machine. The pair drove in the victim’s pickup truck to a remote area, where Atkins shot the airman eight times, killing him.

During Atkins’ trial, there was conflicting testimony over whether he was mentally retarded. A defense expert said Atkins had an IQ of 59, but an expert for the state said he was not retarded.

Pamela Rumpz, a Virginia state attorney, said jurors should be permitted to consider all the facts and make an “individualized sentencing decision.”

Twice jurors had unanimously voted for a death sentence for Atkins. “This was premeditated and deliberate,” she said of the murder committed by Atkins.

The justices said Wednesday that in this case, they need not decide whether Atkins was truly retarded.

If the Supreme Court rules that executing a mentally retarded person is a cruel and unusual punishment, states still will be able to decide who in fact is retarded, noted Justice Sandra Day O’Connor.

Only Justice Antonin Scalia strongly disagreed with the notion that retarded people should be exempted from the death penalty.

“I don’t see the necessary connection between intelligence and moral responsibility,” Scalia said. “The question is whether they can understand right from wrong. You can bring that issue [of retardation] to the jury and say, ‘This person should not be executed. He’s not playing with a full deck.’ ”

But Scalia questioned why all retarded defendants should be automatically excluded from the death penalty.

Ellis argued that people who are retarded “do not fully understand the wrongness of their actions.” During their trials, retarded defendants sometimes smile at odd moments, giving jurors the impression they have no remorse for their actions.

As a result, Ellis said, retarded defendants in murder cases are in special danger of provoking juries to impose death sentences. For this reason, they should be exempted as a group.

“They can be punished and given life in prison. But the death penalty is different,” Ellis said.

A ruling in the case, Atkins vs. Virginia, 00-8452, can be expected in several months.