Supreme Court weighs state's right to execute mentally retarded killer	Baltimore Sun	Feb 21, 2002
Top Court Hears Argument on Execution of Retarded		Feb 21, 2002
Consensus' eyed on executions	Boston Globe	Feb 21, 2002
Justices Review Executions for Mentally Impaired	Los Angeles Times	Feb 21, 2002
High Court Takes Up Two Big Issues		Feb 21, 2002
Opinion & Editorials
The Death Penalty Re-examined		Feb 23, 2002
Executing juveniles	Louisville Courier-Journal	Feb 22, 2002
Why The Supreme Court May Reverse Itself This Term	FindLaw's Writ	Feb 21, 2002
Chipping at the Death Penalty	Christian Science Monitor	Feb 21, 2002
A time not to kill	San Francisco Chronicle	Feb 21, 2002

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Related Web Sites

� The Execution Tapes - archive of recordings of many of the executions taped by the state of Georgia, narrated by prison officials who were witnesses. From Sound Portraits Productions.

� Focus on the Death Penalty - comprehensive resource which includes history, U.S. Supreme Court cases, statistics, the international context, and views from both sides of the debate. From the University of Alaska at Anchorage.

� The Justice Project - campaigns for criminal justice reform. Site hosts companion reports on errors in capital sentencing: '

Court Reviews Execution of Retarded

Feb 20

By GINA HOLLAND

WASHINGTON  - When the Supreme Court last considered executions of the mentally retarded, only two states banned the practice. Now, 18 states prohibit it, and that math will weigh on the court as it reconsiders the issue and the fate of a condemned man with an IQ of 59.

 The court debated Wednesday how much public standards have changed since 1989, when the court upheld those executions on a 5-4 vote.

 Justice Sandra Day O'Connor wrote then that there was "insufficient evidence of a national consensus" against the executions to determine that they were unconstitutionally cruel and unusual punishment.

 That question has been settled, the lawyer for convicted Virginia killer Daryl Renard Atkins told the court.

 "What is your definition of consensus?" asked Chief Justice William H. Rehnquist, a question repeated later by other court members. "How many states out of the 50 do you need for a consensus?"

 Attorney James Ellis didn't provide a number, but he said there are clear moral concerns about putting to death mentally retarded killers. They should be punished, just not by death, he said.

 Twelve states do not execute any murderers and 18 others don't use their death penalties for the retarded.

 "That's a super majority," said Justice Ruth Bader Ginsburg.

 "We have to be very careful about finding a new consensus. We can't go back," Justice Antonin Scalia said.

 President Bush has said he opposes executing the mentally retarded. Texas does not have a ban, and the state executed two retarded defendants while he was governor, according to the Death Penalty Information Center. Prosecutors have disputed the IQs of some executed Texas inmates.

 Pamela A. Rumpz, a Virginia assistant attorney general, told justices that public opinion would change overnight if Osama bin Laden was captured, brought to America for trial and argued that he was mentally retarded.

 She also said that the death penalty is appropriate for people like Atkins, convicted of killing an airman in Virginia. Atkins, who was 18 at the time, had more than 20 previous felonies and was aware of his wrongdoing, she said.

 "We're not looking at somebody whose culpability is any less than yours or mine," Rumpz told justices.

 Justice Stephen Breyer said there are defendants with low IQs who have a hard time functioning. "Maybe they are not so culpable as you or me," he said.

 Justice David H. Souter asked if it was also appropriate to execute 5-year-olds.

 Atkins has an IQ of 59, considered mildly mentally retarded. People who test 70 or below generally are considered mentally retarded.

 There are more than 3,700 people on death row. None of the attorneys could say Wednesday how many of those might be retarded. Other groups have said anywhere from 10 percent to 25 percent of death row inmates could have low IQs.

 It's estimated that about 1 percent of the general population is mentally retarded.

 Scalia said that even without restrictions, juries can now decide whether someone is "not playing with a full deck" and shouldn't be put to death.

 But Ellis argued that mental retardation would more likely work against a defendant, and jurors could use that to justify a tougher penalty.

 Ellis did not know how many states have executed mentally retarded defendants since 1989. Breyer said by his count, that number may be only two or three states.

 O'Connor, who could be a swing vote in what is expected to be a close ruling, noted that if the executions are declared unconstitutional, states could make their own rules for determining who is retarded.

 In addition to Georgia, Maryland and the federal government, which had bans in 1989, new laws were added in Arizona, Arkansas, Colorado, Connecticut, Florida, Indiana, Kansas, Kentucky, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota, Tennessee, and Washington.

 Virginia's Legislature debated a ban, but decided to await the outcome of this case. The court should rule before July.

 The victim in the case, 21-year-old Eric Nesbitt, was stationed at Langley Air Force Base in Hampton, Va. 

 Baltimore Sun

Supreme Court weighs state's right to execute mentally retarded killerJustices revisit question over cruel and unusual punishment in Va. case

By Gail Gibson

February 21, 2002 - 

WASHINGTON - The Supreme Court returned yesterday to the issue of whether killers who are mentally retarded should face the death penalty, weighing whether its decision to uphold such executions 13 years ago should be reversed because of changing public opinion on capital punishment. The question before the court is whether executing a convicted murderer who is mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishment. The court is reviewing the case of a Virginia man, Daryl R. Atkins, who has an IQ of 59 but was found competent to stand trial. He was sentenced to death for the kidnapping and fatal shooting of a young Air Force officer in 1996. People with IQs at or below 70 are generally considered to be mentally retarded. When the Supreme Court last considered the issue in 1989, only two states - Maryland and Georgia - had laws prohibiting executions of the mentally retarded. In a narrow 5-4 ruling, the court said that imposing the death penalty on mentally retarded defendants did not constitute cruel and unusual punishment. Since then, 16 more states have barred the practice and others, including Virginia, are considering similar legislation. As a result, the court agreed to decide whether the Eighth Amendment, which is based on "evolving standards of decency," now should block such executions. The court debated yesterday just how to gauge a shift in national consensus. While 18 states ban executions of the mentally retarded, 20 others that allow capital punishment do not include that prohibition. There is no death penalty in the 12 remaining states. "What is your definition of consensus?" Chief Justice William H. Rehnquist asked an attorney representing Atkins. "How many states out of the 50 do you need for a consensus?" Atkins' attorney, James W. Ellis, said that there is no magic number. The shift, he said, is marked by a growing moral concern about executing people who cannot fully comprehend their crimes or their possible punishment. Pamela A. Rumpz, an assistant attorney general in Virginia, said it would be inappropriate for the court to make an irreversible ruling on the issue based on a "blip on the radar screen of public opinion." "If Osama bin Laden was brought back to the United States tomorrow, found to be mentally retarded and couldn't be executed, the public opinion would change overnight," Rumpz said. Atkins was convicted with another man of killing Eric Nesbitt, 21, during a robbery to get beer money. A ruling in his case is expected by July. Copyright � 2002,  

February 21, 2002

Top Court Hears Argument on Execution of Retarded

By LINDA GREENHOUSE

WASHINGTON, Feb. 20 � Thirteen years ago, the Supreme Court refused to declare that the Constitution categorically barred the execution of retarded people, ruling that "there is insufficient evidence of a national consensus" from which to conclude that such executions violated the country's "evolving standards of decency."Since then, the number of states that have the death penalty but prohibit execution of the mentally retarded has grown to 18 from only 2. The question for the court today in a case from Virginia, one of the 20 remaining death penalty states that have not barred such executions, was whether the balance has now shifted sufficiently so that executing the retarded should be considered "cruel and unusual punishment" in violation of the Eighth Amendment."The consensus that was then emerging is now manifest," James W. Ellis, a law professor and mental health specialist at the University of New Mexico, argued on behalf of a Virginia death row inmate, Daryl R. Atkins.Professor Ellis said the speed with which states had moved toward the position that executing the retarded is unacceptable was "literally unprecedented in the field of capital punishment."Pamela A. Rumpz, an assistant attorney general from Virginia, defended the state's position and sought to turn the fast pace of change into a liability for the other side."A national consensus has to be broad, clear and enduring," Ms. Rumpz said, while the newly adopted state positions amount to only "a blip on the radar screen of public opinion."Her argument appeared to annoy Justice Sandra Day O'Connor, who asked in an irritated tone: "Do you accept that there is a consensus, but just not an enduring one? What exactly are you arguing?""Eighteen of 38 states is not a consensus," Ms. Rumpz replied. "It is not even a majority." She said there was no proof of a long-term shift in public opinion, adding that if Osama bin Laden was captured, brought to the United States and found to be mentally retarded, public opinion would not regard him as ineligible to be executed.Her example took the courtroom audience by surprise, the point appearing somewhat far removed from the case of Mr. Atkins, who was an 18-year-old high school dropout with an I.Q. of 59 when he and a friend, looking for money to buy alcohol, abducted a man, Eric Nesbitt, in the parking lot of a 7-Eleven store. Mr. Atkins, convicted as the one who fatally shot Mr. Nesbitt, was sentenced by the jury to death. The Virginia Supreme Court upheld the sentence last year.Justice O'Connor was the focus of much attention during the argument today because she may be in a position to cast the deciding vote in this case. Her opinion in the case 13 years ago, Penry v. Lynaugh, straddled a 4- to-4 split among the other justices.So it was potentially quite significant that she rejected Ms. Rumpz's view that only a minority of states had rejected the death penalty for retarded people. Rather, Justice O'Connor agreed with Justice Ruth Bader Ginsburg that when the 12 states that have no death penalty at all are taken into account and added to the 18 that have rejected the death penalty for the retarded, there is actually a majority � a "super majority," Justice Ginsburg said � against such executions."I can't imagine that you wouldn't count those states," Justice O'Connor said of the 12.Virginia has maintained that Mr. Atkins is in fact not retarded, an issue that would have to be resolved in the state courts if the Supreme Court ruled in his favor on the Eighth Amendment question. Mental health professionals generally regard those with an I.Q. below 70 as retarded. Professor Ellis said that among the states that have barred execution of the retarded, there was a general uniformity of approach.Asked by Justice Anthony M. Kennedy why he was not arguing that retarded people should not be punished at all if they commit crimes, Professor Ellis replied that "the death penalty is different." Retarded people may know right from wrong and be able to form the intent to commit a criminal act, he said, but may lack the ability to understand the legal system and participate fully in their own defense. For that reason, the retarded face a higher risk than others of wrongful convictions, he said.Virginia's position is that a defendant's retardation should be considered by a jury as a mitigating factor case by case rather than be made the subject of a categorical prohibition against execution.The Supreme Court originally accepted the case of a North Carolina prisoner, Ernest P. McCarver, to decide the issue. But that case became moot last fall, before it could be argued, when North Carolina banned execution of the retarded. When the justices then substituted the Atkins case, they permitted the many briefs that mental health and other groups had filed on behalf of Mr. McCarver to be transferred to the new case file, Atkins v. Virginia, No. 00-8452.A bill to ban the execution of the retarded is moving through Virginia's legislature, the General Assembly. On Feb. 8, the State Senate passed the bill unanimously. But the House has delayed action until after the Supreme Court rules.Among those filing briefs were the European Union and a group of former senior American diplomats, who said that because the United States "is the only established democracy in the world that is known regularly to execute people with mental retardation," the issue had become a foreign policy problem.Justice Ginsburg asked Ms. Rumpz, Virginia's lawyer, "Does what the rest of the world thinks have any relevance at all?"No, the lawyer replied.Justice Antonin Scalia agreed. "Most of the world would not execute a rocket scientist," he said. "They've abolished the death penalty."E-mail Linda Greenhouse your questions at [email protected] with "Supreme Court Q & A" in the subject line. Please include your name and town in the message.

Globe Newspaper Company

'Consensus' eyed on executions

Court again weighs death penalty ban for the retarded

By Lyle Denniston,  2/21/2002

WASHINGTON - The Supreme Court, stepping into a spreading debate over the death penalty for mentally retarded individuals, explored yesterday the possibility that the national sentiment against such executions is now strong enough to justify striking down the practice as unconstitutional.

 Questions and comments by several justices gave death penalty opponents a sense of optimism. Only two of the nine appeared skeptical about turning any political or legislative trend against such executions into a flat ban.

 Nearly 13 years ago, the court ruled 5 to 4 that there is no constitutional violation in executing convicted criminals who are mildly or moderately retarded, those with an IQ below 70 but above 50.

 At that time, in a majority opinion written by Justice Sandra Day O'Connor, the court said that ''a national consensus'' had not developed against such executions. Then, only two states, Georgia and Maryland, outlawed the death penalty for retarded persons. Now that 16 more states and the federal government have passed similar laws, and other legislatures are considering them, the court pored over the question of whether those actions amount to a consensus.

 James W. Ellis, an Albuquerque attorney representing a Virginia death row inmate with an IQ of 59, told the court ''the evidence is now clear: the American people have reached a consensus against executing the retarded.''

 The Virginia Supreme Court upheld a death sentence for Daryl R. Atkins of Hampton, Va., for killing a US airman after robbing him in 1996. Since then, the state Legislature has considered a bill to ban the practice, but legislative leaders this week decided to await the outcome of the state's appeal to the US Supreme Court.

 An assistant attorney general for Virginia, Pamela A. Rumpz, argued vigorously yesterday against a constitutional ban. She said any consensus against executing the retarded is not yet an enduring one, and may be ''a blip on the radar screen of public opinion. The blip could go away.''

 The court lost no time as the hearing opened in trying to define what a consensus would be, in terms of the number of disapproving states or the portion of the nation's population living in them.

 As soon as Ellis opened his argument, he was pressed by Chief Justice William H. Rehnquist to define consensus. Rehnquist was dissatisfied when Ellis said it was an expression of ''a settled judgment'' by the people. The chief justice asked for figures to support a consensus, but Ellis declined, saying the court should examine ''the totality of evidence'' about what legislatures have been doing.

 Justice Antonin Scalia promptly got into the exchange, warning that, if the court barred those executions as cruel and unusual punishment under the Eighth Amendment, it would be a ''one-way ratchet: we won't be able to go back'' if public sentiment changes.

 From then on, however, the focus shifted to the reasons why the mentally retarded should not be executed, and how that affects the constitutional question. Justice David H. Souter said that if there is a popular judgment against executing the mentally retarded, ''what gives that constitutional significance?''

 Ellis said the limits that mental retardation imposed on an individual's reasoning power made the death penalty inapproporiate, in a constitutional sense. He said the issue was similar to the one that led the court to bar executions of murderers under age 16.

A final decision in the case is expected this spring.

THE NATION

Justices Review Executions for Mentally Impaired Law: Supreme Court is told that many states do not seek death penalty against the retarded. It is 'a settled moral judgment,' Breyer says.

By DAVID G. SAVAGE, 

WASHINGTON -- The growing movement to ban the execution of mentally retarded killers took another step forward Wednesday as the Supreme Court heard new evidence that virtually every state has backed away from imposing the ultimate punishment on inmates with diminished mental capacity."The evidence is now clear: The American people have reached a consensus" against executing these individuals, James Ellis, a University of New Mexico law professor, told the court, arguing that such executions violate the constitutional ban on cruel and unusual punishment.In 1989, when the justices last considered the issue, only two states that imposed the death penalty exempted those who were mentally retarded. Now 18 states have enacted such exemptions. And most other pro-death penalty states, including California, have not executed anyone with an IQ of 70 or below, the standard definition for retardation.Justice Stephen G. Breyer said it appeared that only two states--which he did not name--would still go ahead with executing such a defendant. He noted that "48 [of the 50 states] represents a consensus, a settled moral judgment."The Supreme Court itself is well aware of the trend.Last year, the justices voted to take up an appeal from Ernest McCarver, a mentally retarded defendant from North Carolina. But before the case could be heard, the North Carolina Legislature met and abolished capital punishment for retarded inmates.The justices dismissed the McCarver case and took up a similar appeal in a Virginia case. Earlier this month, the Virginia Senate voted to exempt retarded individuals from the death penalty. But because that measure has not passed the state Assembly, the justices are proceeding to decide the issue. Nonetheless, the actions by state lawmakers seem to signal the growing opposition to such executions.Little attention was paid Wednesday to the facts of the Virginia inmate's case. Daryl Atkins, then 18, and another man confronted an Air Force serviceman outside a convenience store near Hampton, Va., and forced him at gunpoint to withdraw money from an automated teller machine. The pair drove in the victim's pickup truck to a remote area, where Atkins shot the airman eight times, killing him.During Atkins' trial, there was conflicting testimony over whether he was mentally retarded. A defense expert said Atkins had an IQ of 59, but an expert for the state said he was not retarded.Pamela Rumpz, a Virginia state attorney, said jurors should be permitted to consider all the facts and make an "individualized sentencing decision."Twice jurors had unanimously voted for a death sentence for Atkins. "This was premeditated and deliberate," she said of the murder committed by Atkins.The justices said Wednesday that in this case, they need not decide whether Atkins was truly retarded.If the Supreme Court rules that executing a mentally retarded person is a cruel and unusual punishment, states still will be able to decide who in fact is retarded, noted Justice Sandra Day O'Connor.Only Justice Antonin Scalia strongly disagreed with the notion that retarded people should be exempted from the death penalty."I don't see the necessary connection between intelligence and moral responsibility," Scalia said. "The question is whether they can understand right from wrong. You can bring that issue [of retardation] to the jury and say, 'This person should not be executed. He's not playing with a full deck.' "But Scalia questioned why all retarded defendants should be automatically excluded from the death penalty.Ellis argued that people who are retarded "do not fully understand the wrongness of their actions." During their trials, retarded defendants sometimes smile at odd moments, giving jurors the impression they have no remorse for their actions.As a result, Ellis said, retarded defendants in murder cases are in special danger of provoking juries to impose death sentences. For this reason, they should be exempted as a group."They can be punished and given life in prison. But the death penalty is different," Ellis said.A ruling in the case, Atkins vs. Virginia, 00-8452, can be expected in several months. If you want other stories on this topic, search the Archives at latimes.com/archives

High Court Takes Up Two Big Issues School Vouchers And Death Penalty Spark Lively Debate

 By Charles Lane and Michael A. Fletcher

February 21

Two polarizing social issues took center stage at the Supreme Court yesterday, as the justices heard arguments in major cases on government-funded vouchers for private school education and capital punishment for the mentally retarded.Hundreds of chanting demonstrators patrolled the court's front steps. Inside, an audience sprinkled with senators and superlawyers sat rapt as the justices fenced with attorneys -- and occasionally each other -- on what was probably the most dramatic single day of hearings since the 2000 presidential election case.A victory for pro-voucher forces, who range from free-market conservative groups to inner-city parents, could reenergize their stalled bid to pass state voucher laws. A clear-cut victory for opponents, led by teachers unions, could doom the voucher movement.The death penalty case, too, is a make-or-break moment for a movement, spearheaded by human rights groups, to prohibit executing those offenders who rank at the bottom of society in intelligence and social skills. Many state officials argue that the decision on such offenders should be made by juries on a case-by-case basis."I can't recall a recent day at the court that had such a feeling of being a major watershed moment," said Walter Dellinger, who was acting solicitor general during the Clinton administration.A six-year-old Ohio program gives state money to low-income students in Cleveland to attend private or parochial schools instead of the city's troubled public schools.The grants, up to $2,250 per student, are too low to pay for most independent private schools, and no suburban public school has taken the state's offer of aid in exchange for admitting inner-city children, so most of the 4,300 Cleveland voucher students have ended up at church-run schools.A central legal question in the case is whether that outcome reflects free choices by students and their families or the program offers no realistic alternative.The court has said that government may provide aid to religious schools for general educational purposes, so long as it is channeled through another decision-maker, preventing government endorsement of religion.Ohio Assistant Attorney General Judith L. French, joined by U.S. Solicitor General Theodore B. Olson, urged the court to remember the educational crisis that triggered the voucher program -- and to look at voucher-paid parochial schools as just one of several educational options including magnet schools and state-funded, independently run charter schools."Here, Cleveland parents have a number of choices," French said.Arguing against vouchers, lawyer Robert H. Chanin countered that "it is a mathematical certainty that almost all of the students will go to religious schools."But Justice Sandra Day O'Connor, widely perceived as the swing vote in the case, stopped Chanin, asking: "Do we not have to look at all the school choice options?"O'Connor strongly suggested that charter schools, which receive more government money per student than the value of a voucher, should be counted as a third alternative to public and parochial schools."If anything [the program] is skewed against religious schools in terms of public support," she said.Chanin made little headway insisting that "parents play a ritualistic role" in deciding how vouchers are spent."A number of members of the court are really not satisfied with that explanation," Chief Justice William H. Rehnquist told him.Only three voucher programs -- in Cleveland, Milwaukee and Florida -- offer public school students the choice of attending private or parochial schools with public money. A few other cities and states have privately funded voucher programs.Proponents argue that they give poor students the same educational options available to students from middle-class and wealthy families. Opponents say vouchers benefit few students while undermining support for already underfinanced public schools.The Cleveland case was appealed to the Supreme Court after the 6th U.S. Circuit Court of Appeals in Cincinnati struck down the program last year.In the death penalty case, an attorney for Virginia death-row inmate Daryl Atkins told the justices that executions of mentally retarded capital offenders are so morally repugnant that a national consensus has formed against the practice as "cruel and unusual punishment" and it should be declared unconstitutional.Less able to comprehend either their own actions or the justice system, such defendants are less blameworthy than others and "present the uncomfortable possibility of wrongful conviction and thus wrongful execution," Atkins's lawyer James W. Ellis said.Atkins was convicted of brutally murdering a young Air Force serviceman, Eric Nesbitt, in 1996. His attorneys say he has a measured IQ of 65, five points below the level generally recognized as moderately retarded. The state of Virginia noted that Atkins planned the crime and helped his lawyers at trial."If [a person] can calculate a brutal murder and assist his counsel, then we're not looking at a person whose culpability is any less than yours or mine," Virginia Assistant Attorney General Pamela A. Rumpz said.The case comes amid growing public concern about the death penalty, sparked in part by recent DNA exonerations of death-row inmates. Two justices, O'Connor and Ruth Bader Ginsburg, have publicly voiced their concerns about the quality of legal advice given to capital defendants.In 1989, a majority of the court upheld executing retarded offenders, saying that only two states with the death penalty barred the practice, too few to demonstrate a consensus.Since then, however, 16 more states have passed laws, so that 18 of the 38 states with the death penalty, plus the federal government, now prohibit capital punishment of retarded offenders. Twelve states and the District have no death penalty.O'Connor, who wrote the court's 1989 opinion and who is considered the pivotal vote in this case, too, sharply disagreed with Rumpz when Rumpz suggested leaving out states with no death penalty when figuring out what portion of the states have rejected executing the retarded."Why not?" O'Connor asked. "I can't imagine that you would say we can't include those states."But Justice Antonin Scalia noted that most of the death-penalty states still permit executing the retarded. "Sounds like a consensus in the other direction," he said.The vouchers cases are Zelman v. Simmons-Harris, No. 00-1751; Hanna Perkins School v. Simmons-Harris, No. 00-1777; and Senel Taylor v. Simmons-Harris, No. 00-1779, consolidated by the court.The death penalty case is Atkins v. Virginia, No. 00-8452.Decisions in the two cases are expected by July.� 2002 The Washington Post Company