Execution of retarded barred by court

By Charles Lane ~ The Washington Post

WASHINGTON -- The Supreme Court on Thursday abolished the execution of mentally retarded offenders, imposing one of the most significant restrictions on who could be given the death penalty since the court permitted states to resume capital punishment in 1976.

By its decision, the court held 6-3 that a recent wave of statutes banning the practice in 18 of 38 death-penalty states showed that a national consensus against it had formed, a consensus strong enough to warrant classifying all death sentences for the mentally retarded as "cruel and unusual punishment" prohibited by the Constitution.

Coming amid an upsurge in public concern over flaws in the administration of the death penalty, the ruling represented a change from a position the court had taken as recently as 1989, when the justices, in a 5-4 decision, gave executions of the mentally retarded their conditional approval. At that time, only two death-penalty states banned executions of the retarded.

"Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct," Justice John Paul Stevens wrote in a majority opinion joined by Justices Sandra Day O'Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Thus, the court said, the objectives of capital punishment -- deterring murder and exacting retribution for it -- don't apply to persons of well-below-average measured intelligence.

Concerns about possible abuse of the court's ruling were also expressed Thursday by the court's three most conservative members, Chief Justice William Rehnquist, Antonin Scalia and Clarence Thomas, who dissented in the case, as they had dissented from the court's recent stays of execution.

Scalia read a summary of his opinion from the bench after Stevens finished reading the opinion for the court, a gesture usually reserved only for those cases in which a justice disagrees especially strongly with the majority.

Noting that 20 of the 38 death-penalty states still allowed capital punishment for the retarded, Scalia, his voice rising at times, accused the majority of discovering an "artificial" national consensus and using it to short-circuit the legislative processes of the states so as to enshrine as an unchangeable constitutional rule the moral judgment of "really good lawyers."

"Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," Scalia wrote.

Scalia also took a dig at the majority's acknowledgment of the anti-death penalty views of the U.S. Catholic Conference, which is grappling with a child sex-abuse scandal, noting that "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."

Atkins' case

The case, Atkins vs. Virginia, involved Daryl Renard Atkins, 23, who's been on death row in Virginia since 1998 for the 1996 abduction and murder of Eric Nesbitt, a U.S. airman assigned to Langley Air Force Base in Hampton, Va. After a day of drinking and drug use, Atkins and co-defendant William Jones grabbed Nesbitt outside a convenience store and forced him to withdraw money from an ATM. Nesbitt was shot eight times and died. The murder weapon was never recovered.

Atkins offered police a detailed account of his involvement when he was arrested. He was convicted in a trial at which the most damaging testimony against him came from Jones, who pleaded guilty in return for a life sentence. Jones told the jury that Atkins had been the triggerman in the murder, which Atkins has always disputed.

A mental health expert appointed by attorneys for Atkins said he has an IQ of 59. Atkins had a long record of violent crime but had never lived on his own or held a job. Backed by its own expert witness, the Virginia attorney general's office said Atkins was intelligent enough to understand and plan a crime.

The Virginia Supreme Court split 5-2 on Atkins' appeal, with two justices saying Atkins's sentence should be commuted to life without parole.

The U.S. Supreme Court agreed to hear Atkins' case in September, after it dropped a North Carolina death-row inmate's case that became moot when that state passed a law abolishing execution of the mentally retarded.