Commentary, Vivian Berger, emerita law professor at Columbia University, National Law Journal, Nov. 16

On Social Justice: Revisiting 'Penry'

For the 1st time in many years, the U.S. Supreme Court will entertain a substantive, "categorical" challenge to the infliction of capital punishment. The Court has previously decided cases attacking the imposition of death on classes such as youths, rapists of adult women, non-"triggerman" felony murderers and inmates who are insane at the time of execution. Atkins v. Virginia, one of the most significant certiorari grants of the new term, poses the question whether a state may constitutionally execute people suffering from mental retardation. The answer should be a resounding no.

 Atkins turns the Court's attention to a fundamental moral issue in the capital punishment area; in recent years, its focus has been on esoteric procedural points. Indeed, the criterion long applied to blanket claims of immunity to death -- whether a particular practice conforms to "evolving standards of decency that mark the progress of a maturing society" -- explicitly invokes ethical principles.

 Because the word "evolving" envisions change over time, the test invites re-examination of prior Eighth Amendment precedents. The present rule was stated in 1989 in Penry v. Lynaugh, 492 U.S. 302. Speaking through Justice Sandra Day O'Connor, the Court rejected, 5-4, the claim that mentally retarded individuals as a class should not receive the death penalty. That holding leaves such defendants with only the argument that their condition mitigates the crime and, thus, as a matter of discretion, the sentencer should spare their lives.

REAL-LIFE OBSTACLES

 This course presents many real-life obstacles, however. The retarded are uniquely unsuited to cooperating in their own defense, even when they have competent counsel -- and capital defendants often have ineffective lawyers, ill-equipped to navigate the treacherous shoals of capital trial and post-conviction representation.

 Perhaps the major risk of the Penry approach flows from the fact that jurors can easily view retardation as an aggravating, not mitigating, factor. Those very qualities that undermine the goals of deterrence and retribution with respect to the mentally retarded -- their impulsivity, susceptibility to others' influence, and lessened capacity for rational choice and appreciation of consequences -- tend to make a jury anxious that they will lose control again and commit additional horrible crimes. In light of these problems, it is not surprising that retarded people have received sentences of death.

 Happily, the public is becoming more attuned to the senselessness and immorality of imposing the ultimate punishment on such defective individuals. Polls show substantial majorities opposed to their being killed. This attitude is reflected in legislation, the principal source to which the Court looks to determine whether "evolving standards of decency" bar a practice as cruel and unusual. When Penry was heard, only 2 states proscribed death for the mentally retarded. At least 18 states and the federal government do so now.

 There also exists a strong international consensus against execution of the retarded. Of those countries that still employ capital punishment, only 2, the United States and Kyrgyzstan, regularly put the retarded to death. That raises an interesting question: To what extent should the inquiry into evolving standards encompass the views of other nations? 4 current members of the Court -- Chief Justice William H. Rehnquist and Justices O'Connor, Antonin Scalia and Anthony Kennedy -- reject the relevance of other countries' sentencing practices.

 Yet, in many decisions the Court has taken foreign opinion into account. If the justices take the claim of immunity seriously, they will have to confront the issue of who comprises the exempt group. Virginia will likely contend that wholesale immunization of the retarded is unworkable, as the disability is vague and amorphous.

 To the contrary, pertinent texts universally define mental retardation as requiring a confluence of three factors: "significant limitations in intellectual functioning," "significant limitations in practical or 'adaptive' functioning" and "onset before adulthood." Qualified professionals can diagnose this condition, so as to minimize line-drawing problems. Further, the early-onset criterion provides insurance against fake claims.

 Executing the mentally retarded only compounds the innate cruelty of capital punishment. Because the Court in Atkins, as in Penry, will probably split, 5-4, the question is whether O'Connor's views have evolved to the point where she can say Penry was wrong -- or outdated and incompatible with decent standards.