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Execution Abolished for Mentally Retarded

TIMES STAFF WRITER

The Supreme Court on Thursday declared an end to the execution of convicted murderers who are mentally retarded, saying the nation has reached a consensus that it is cruel and unusual to put to death a person with the mental age of a child.

Eighteen states that impose the death penalty have passed new laws exempting prisoners who are retarded, the court said. In the last decade, only five states--most notably Texas--have executed killers whose IQs measured 70 or less, the standard threshold for defining retardation.

“The practice, therefore, has become truly unusual,” said Justice John Paul Stevens, speaking for the court.

It is also cruel, he said, since those with a diminished mental capacity are more likely to act on impulse and less likely to consider the consequences.

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The ultimate punishment of death should be reserved for the worst of murderers, Stevens said. Since retarded people are less culpable for their acts of violence, they must be “categorically excluded” from capital punishment, he concluded.

Thursday’s 6-3 ruling extends to all of the 3,701 inmates condemned to death around the nation, as well as to future cases. California has by far the nation’s largest death row, with 603 inmates. A state prosecutor predicted that very few of them will be spared by the ruling.

Justice Antonin Scalia read an angry dissent in the courtroom, accusing his colleagues of adopting the “arrogant assumption ... [that they] have moral sentiments superior to those of the common herd.”

He mocked the “empty talk of a national consensus” on the issue and predicted that the ruling will cause chaos.

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“The symptoms [of retardation] can be feigned ....This will turn the process of a capital trial into a game,” he said. Chief Justice William H. Rehnquist and Justice Clarence Thomas joined his dissent.

Stevens said the court was reluctant to define mental retardation and left that task to experts, trial judges and state legislators.

However, his opinion relied on the standard used by the American Psychiatric Assn. and the American Assn. on Mental Retardation. These groups define mental retardation as a “significant sub-average general intellectual functioning.” Typically, “mild” mental retardation describes people whose IQ level is measured from 50 to 70.

This intellectual deficiency must be combined with a limited “adaptive function” at home, at school or at work. “The onset [of these difficulties] must occur before age 18,” the psychiatric association said.

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This definition appears to exclude people whose mental ability declines sharply while in prison. But the uncertainty of who is retarded and how it is be measured will likely spawn a series of legal battles in the lower courts.

However, the high court’s opinion is firm in saying that once an inmate has been judged to be mentally retarded, the state may not impose a death sentence. James Ellis, a law professor at the University of New Mexico who successfully argued Thursday’s case on a behalf of a Virginia inmate, Daryl Atkins, said “there aren’t any good numbers” for how many inmates may be affected by the ruling.

While some legal experts have estimated that up to 10% of the inmates on state death rows are retarded, state prosecutors say they believe the number is much smaller.

In 1989, the Supreme Court ruled that judges and jurors must consider mental retardation as a “mitigating factor” during a sentencing hearing, a reason to spare the life of the convicted murderer.

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Moreover, many prosecutors do not seek a death sentence if the accused is retarded.

California does not by law exclude mentally retarded defendants from capital punishment, but state prosecutors say they do not believe many such individuals are on death row now.

“In sheer numbers, very few [of California’s death row inmates] will be affected” by the ruling, said Dane Gillette, a California assistant attorney general who coordinates the capital cases. “But I suspect quite a few will file claims raising the issue. I think we will see a new interest in being tested.”

Since 1991, according to Amnesty International, 12 people whose IQs tested at 70 or below--or who were borderline mentally retarded--have been executed in the United States.

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William F. Schulz, the group’s executive director, said Thursday’s ruling “has finally ushered the United States into the circle of civilized nations when it comes to such executions.... Our justice system has now caught up with the moral sensibilities of the American people.”

He referred to opinion surveys showing that, although most Americans support the death penalty, they oppose the execution of mentally retarded individuals by an overwhelming margin.

But the case decided Thursday, Daryl Atkins vs. Virginia, 00-8452, also illustrates the difficulty of the issue.

On an August evening in 1996, Atkins and a friend had been drinking when they walked to a convenience store intending to rob a customer. They spotted Eric Nesbitt, an airman at Langley Air Force Base. Atkins put a gun to him, took control of his truck and drove him to a bank machine. After forcing Nesbitt to withdraw $200, Atkins drove him to a field and shot him eight times.

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The jury, which relied on the co-conspirator’s testimony, convicted Atkins of the murder. At the sentencing hearing, jurors also were told of 16 other crimes that Atkins had committed, including robberies and assaults.

A defense expert who tested Atkins said his IQ was 59, that he had fared poorly in school and that he was retarded. A state psychologist who interviewed Atkins disagreed and described him as being of “average intelligence.” The jury then sentenced him to death.

The Virginia Supreme Court accepted that he had a very low IQ score but upheld his sentence. He remains on death row while the state assesses the court’s ruling.

Thursday’s ruling reverses that decision and says evidence of retardation calls for a long prison term, not a death sentence. However, the opinion leaves open the possibility that Virginia’s lawyers could try to show that Atkins is not mentally retarded.

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Last year, President Bush raised eyebrows when he told a group of foreign visitors that he opposed the execution of mentally retarded people, even though several convicts with very low IQs were executed when he was governor of Texas. In 1997, Terry Washington, whose IQ tested between 58 and 69, was executed in Texas.

The president’s aides explained that Bush believed the standard was whether a defendant knew right from wrong when he committed his crime. Judges use this standard to decide whether a person is competent to stand trial, but it is not often used as a test of mental retardation.

The current governors of Texas and Oklahoma have vetoed bills that would have exempted retarded defendants by citing that standard.

Two weeks ago, Oklahoma Gov. Frank Keating vetoed a bill to exempt the mentally retarded from death sentences and said the state’s laws are adequate. Those who “cannot differentiate right from wrong” are spared already, he said.

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However, Justice Stevens’ opinion rejects the “right from wrong” standard as the definition for mental retardation.

California Atty. Gen. Bill Lockyer praised the court’s ruling and said he will try to implement it fairly and responsibly.

Thursday’s ruling marks the fourth time that justices have announced a categorical exclusion from executions.

In 1977, the year after they restored capital punishment, the justices barred death sentences for rapists and others whose crimes stopped short of murder. In the South at that time, a significant number of inmates facing death were not charged with murder.

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In 1986, the court exempted those who are insane. In 1989, the court excluded juveniles who were younger than 16 when they committed a murder.

That same year, the court stopped just short of ending the death penalty for mentally retarded inmates in the case of Johnny Paul Penry. Four liberal justices said such executions are cruel and unusual punishment, which is banned by the 8th Amendment. Justice Sandra Day O’Connor voted to reverse Penry’s death sentence but said there was not yet a national consensus for banning such executions.

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That day came Thursday, as O’Connor voted with the majority to end the practice.

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