High Court Considers Constitutionality of Executing Mentally Retarded

February 20, 2002 12:00 am

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WASHINGTON–In a case whose outcome could affect death row inmates across the nation, the United States Supreme Court today will consider whether executions of people with mental retardation violates the Constitution’s ban against “”cruel and unusual punishment.””

The growing number of states that ban executions of the mentally retarded amounts to a national consensus against the practice, according to the American Civil Liberties Union, which filed a friend-of-the-court brief in Atkins v. Virginia, No. 00-8452.

“”As an increasing number of states and the vast majority of nations around the world recognize, execution of the mentally retarded is incompatible with the standards of a civilized society regardless of the procedures used,”” said Diann Rust-Tierney, Director of the ACLU Capital Punishment Project. “”By deciding to hear this case, our nation’s highest court recognizes that the evolving standards of decency in this country are moving toward a halt in executing the mentally retarded.””

Of the more than 3,700 people on death row, up to one-fourth may have mental retardation claims, Rust-Tierney said. In today’s case, the Justices will consider the constitutionality of death sentences handed down to adults with IQs of less than 70.

At the crux of this debate is determining who may be considered mentally retarded. Most states apply a three-pronged test. First, the individual’s IQ must be 70 or below. Second, the individual must show significant limitations in adaptive functioning in areas such as communication, self-care, academics and self-direction. Third, both of those earlier conditions must have manifested before the age of 18.

The Supreme Court first considered execution of the mentally retarded in 1989, in the case of Johnny Paul Penry. The Court ruled that because only two states at the time explicitly outlawed the practice, no national consensus was evident that could pave the way for an Eighth Amendment argument that the practice amounted to “”cruel and unusual punishment.”” But since then, 18 states and the federal government have banned the practice, offering an opening to attorneys for Atkins and advocates for death penalty reform.

Twenty-four-year-old Daryl Atkins has been on Virginia’s death row since 1998 for the 1996 abduction and killing of Eric Nesbitt. Virginia’s Supreme Court upheld Atkins’ sentence based on the Court’s Penry decision. That ruling was partly based on the Justices’ observations that the abilities of retarded people vary and that they do not necessarily lack the capacity to plan a murder.

Last fall, the Supreme Court agreed to review the Atkins case after it dismissed the case of Ernest Paul McCarver. The McCarver case was dropped because a recently enacted North Carolina law barring the execution of the mentally ill made his case moot for the Supreme Court.

“”We are hopeful that states will continue to examine the way in which they have applied the death penalty, not only for the mentally retarded but for all prisoners and all aspects of the system, including socioeconomic disparities which permeate our nation’s death penalty process,”” Rust-Tierney added. “”Until disturbing questions of fairness in applying the death penalty are addressed, state leaders should call for a moratorium on all executions.””

The states that generally ban executions of the mentally retarded are Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota, Tennessee, and Washington.

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