Death Penalty Curb Is Unlikely to Signal a Shift

For a moment last week, when the justices announced an end to executing the mentally retarded, it was as though the boldly liberal Warren Court had unseated the conservative Rehnquist Court of today.

Chief Justice Earl Warren, who led the court in the 1950s and ‘60s, was known for a progressive view of the Constitution and a willingness to use the court’s power to cast aside settled practices, from segregation to school prayer. The 8th Amendment’s ban on cruel and unusual punishment “draws its meaning from the evolving standards of decency that mark the progress of a maturing society,” Warren wrote in one famous passage.

That kind of shifting standard grates on Chief Justice William H. Rehnquist and Justice Antonin Scalia, who believe the Constitution should be interpreted as it was written in the 18th century, not by today’s standards.

They sat glumly Thursday as Justice John Paul Stevens quoted Warren’s words to say the nation’s standard of decency now calls for a permanent ban on death sentences for mentally retarded offenders.

But experts who closely monitor capital punishment--supporters as well as opponents--do not see last week’s ruling as a signal that the high court is turning away from the death penalty.

“One case isn’t a trend,” said USC law professor Erwin Chemerinsky.

Indeed, last week’s ruling marked the first time in Rehnquist’s 16-year reign as chief justice that the court had imposed a significant limit on the death penalty.

Rehnquist has led the court’s conservative majority in a series of rulings that made it easier for states to carry out executions and harder for inmates to appeal. The landmark capital punishment rulings of the Rehnquist era have rejected moves to restrict the death penalty.

In 1987, the court, on a 5-4 vote, rejected claims that the death sentencing system in the South was infected with racial bias. In 1989, the justices said, again by a 5-4 vote, that states could execute murderers who were as young as 16 when they committed their crimes.

In 1993, Rehnquist spoke for the court in saying that new evidence showing a death row inmate might be innocent was not enough to reopen his case. The dissenting justices called the ruling “astonishing” and a violation of “any standard of decency.”

But all along, Rehnquist’s narrow majority has required the vote of Justice Sandra Day O’Connor, a former state legislator who is attuned to shifting political winds. And unlike Scalia and Rehnquist, O’Connor has said her judgment about what is cruel and unusual punishment would turn on the climate of current legal opinion.

For O’Connor, the fact that 18 states had passed laws exempting mentally retarded people from the death penalty gave her all the evidence she needed to rule that this form of punishment is now considered cruel and unusual.

“In the light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years,” Justice Stevens said, “it is fair to say that a national consensus has developed against” executing mentally retarded people.

If there was a true surprise in Thursday’s ruling, it was that Justice Anthony M. Kennedy sided with the majority to outlaw executions of the mentally retarded.

Last month, O’Connor and Kennedy joined Rehnquist in reinstating a Tennessee man’s death sentence, even though his lawyer had failed to present an argument to his sentencing jury in favor of sparing his client’s life.

And just two weeks ago, O’Connor and Kennedy joined the 5-4 majority that cleared the way for the execution of Virginia inmate Walter Mickens, whose trial lawyer failed to disclose that he had once represented the young victim of his client.

Kent Scheidegger of the Criminal Justice Legal Foundation, a pro-death penalty group in Sacramento, expects the Rehnquist Court will continue to be an ally.

“I certainly don’t see this as a prelude to a judicial move to abolish the death penalty. I think that is long past,” he said. Unlike during the 1960s and 1970s, none of the current justices believes capital punishment itself is unconstitutional.

Still, death penalty opponents were heartened by last week’s ruling.

“I hope it signals a new openness on their part to reflecting on the death penalty,” said Northwestern University law professor Lawrence Marshall, a former court clerk who leads the Chicago-based Center for Wrongful Convictions. “America is ahead of the court now on the issue, and it’s saying the death penalty is riddled with unfairness.”

If the court has shifted on the death penalty, the first sign might come as soon as this week.

The justices are set to hand down a ruling in an Arizona case that challenges state laws that permit judges, rather than juries, to impose a death sentence. If they side with the inmate who is appealing, it could upset more than 800 death sentences nationwide.

“If they reverse in Ring [vs. Arizona], that would be a major indicator of real change,” Chemerinsky said.

But the court rarely makes sudden, surprising shifts. Thursday’s ruling was foreshadowed by a similar case decided 13 years ago.

In June 1989, the fate of Johnny Paul Penry, a Texas murderer with the mental age of a 7-year-old, depended on O’Connor.

The four liberal justices who opposed the death penalty were committed to overturning his death sentence and outlawing the execution of mentally retarded people. The four conservatives, including Rehnquist and Scalia, voted to send Penry to his execution.

O’Connor was squarely in the middle. She voted with the liberals to overturn Penry’s death sentence because the jurors had not been told to weigh his retardation as a reason to spare him. But she sided with the conservatives in refusing to outlaw all executions of mentally retarded people.

Polls showed that most Americans opposed executions of retarded people, but only Georgia had then outlawed the practice. O’Connor said she was looking for “objective evidence,” such as laws passed by state legislatures.

“While a national consensus against execution of the mentally retarded may someday emerge reflecting the ‘evolving standards of decency that mark the progress of a maturing society,’ ” O’Connor wrote, quoting Earl Warren’s words, “there is insufficient evidence of such a consensus today.”

Leaders of the American Assn. on Mental Retardation took O’Connor’s statement as a call to action, and they pressed legislatures to exempt the mentally retarded from their capital punishment laws.

In one state after another, lawmakers acted. Last year, when the Supreme Court took up the case of a North Carolina death row inmate who was mentally retarded, North Carolina lawmakers quickly repealed capital punishment for the retarded.

Even in Texas and Oklahoma, two states where support for the death penalty is strongest, lawmakers approved exemptions for the retarded in the last year. However, the governors of both states vetoed the bills.

But O’Connor was convinced. In February, when the court heard the case decided last week, Daryl Atkins vs. Virginia, she made it clear she would vote to abolish executions of the mentally retarded. Justice Kennedy, who voted with Scalia and Rehnquist in the 1989 case, unexpectedly joined her.

Like O’Connor, Kennedy is a moderate conservative who was appointed by President Reagan.

Lawyers and former clerks say Kennedy and O’Connor do not want to be portrayed as hard-line conservatives. In 1992, they broke with Rehnquist and Scalia by refusing to overturn the Roe vs. Wade ruling on abortion. And in 1996, they sided with gay rights activists to strike down a Colorado law that allowed discrimination based on sexual orientation.

Columbia University law professor Michael Dorf, a former clerk to Kennedy, believes they are influenced by international revulsion against the death penalty.

“They’re globe-trotters, and they like to give speeches in Europe and meet with judges there,” Dorf said. “You can’t feel welcome in that crowd if you’re an extremist on the death penalty.”

In July, for example, Kennedy went to Salzburg, Austria, to teach and later made other government-sponsored trips to Moscow and Beijing. O’Connor lectured in Innsbruck, Austria; Zagreb, Croatia; and Cambridge, England.

“They can’t help but notice the world is looking with scorn at the American death penalty system,” Marshall said.