Corte Suprema Niente boia per i ritardati

 NEW YORK � Con una storica sentenza, a pochi giorni dal trentesimo anniversario di un'altra decisione che fece epoca � lo stop alle esecuzioni, durato quattro anni �, il massimo organismo giudiziario americano ha stabilito che eseguire condanne di ritardati mentali � contro la Costituzione. La sentenza ha spaccato i nove giudici di Washington, che si sono divisi 6-3 nel decidere di ribaltare una decisione presa dalla stessa Corte nel 1989. All'epoca, solo due Stati degli Usa avevano deciso di non giustiziare pi� detenuti con seri deficit mentali. Adesso gli Stati che proibiscono questo tipo di esecuzioni sono diventati 18 e, considerando gli altri 12 dove la pena di morte � del tutto bandita, erano in tutto 30 gli Stati dove un malato mentale o una persona con il quoziente d'intelligenza di un bambino non poteva finire di fronte al boia. Una maggioranza schiacciante che, per i giudici supremi, � ormai il segno di un cambiamento di atteggiamento da parte del paese, come quello che la Corte registr� il 29 giugno 1972, decidendo lo stop totale alle esecuzioni. La pena di morte � stata poi reintrodotta nel 1976 e da allora sono state giustiziate 775 persone negli Usa. Per almeno 35 di loro c'era il sospetto che si trattasse di detenuti incapaci di riconoscere con chiarezza il bene dal male.

Riflettendo sull'aumento in 13 anni da due a 18 degli Stati che hanno bandito questo tipo di esecuzioni, il relatore di maggioranza John Paul Stevens ha scritto che �non � tanto il numero di questi Stati ad essere significativo, quanto la consistenza della direzione del cambiamento�. Per i sei giudici autori della svolta, l'esecuzione di ritardati a questo punto rientra tra le punizioni �crudeli e inusuali� previste dall'ottavo emendamento alla Costituzione e, come tale, � da ritenere ormai incostituzionale. A beneficiare immediatamente della sentenza sar� Daryl Renard Atkins, il detenuto condannato a morte in Virginia per il quale la Corte si � pronunciata. Beneficer� anche della sentenza Johnny Paul Penry, condannato a morte due volte per l'uccisione di una donna nel 1979. Ma conseguenze ci saranno anche nei 20 Stati dove le esecuzioni di ritardati erano ancora ammesse, che ora � secondo gli esperti di pena capitale � si troveranno a dover rivalutare decine, forse centinaia di casi. Tra i 3.700 detenuti presenti attualmente nel braccio della morte dei vari Stati che ammettono le esecuzioni, � probabile che avverr� una corsa a presentare istanze a sostegno dell'incapacit� mentale.

Liberazione  

Qualcosa scricchiola nella mania esecutoria degli States. 

  Qualcosa scricchiola nella mania esecutoria degli States. La Corte suprema ha infatti deciso che, almeno nel caso degli handicappati mentali, i giudici dovranno fare a meno del boia. Daryl Renard Atkins, colpevole di omicidio, era stato condannato a morte da un tribunale della Virginia, nonostante il suo quoziente di intelligenza raggiungesse appena 59 punti. Secondo gli esperti il livello minimo � 70 mentre la prova dell'imputato corrispondeva al massimo a quella di un bambino di nove anni.

Per questo la Corte ha annullato la pena capitale affermando che non si possono uccidere per punizione dei ritardati mentali: � contrario all'ottavo emendamento della Costituzione che vieta le �punizioni crudeli�. Ma su questo basilare, bench� parzialissimo, principio di civilt� i nove giudici hanno dovuto votare perch� tre di loro erano ostinatamente decisi a non rinunciare al carnefice neanche in questa occasione. Tra loro, il presidente della Corte suprema William Rehnquist che si � unito ai componenti Antonin Scalia e Clarence Thomas. Tutti e tre hanno contestato la decisione della maggioranza considerandola un �grave errore�.

 John Stevens ha invece illustrato le ragioni della sentenza che rovescia le indicazioni del passato. �Questa pratica - ha sostenuto - � diventata inusuale e si � sviluppato un consenso nazionale contro di essa�. Il giudice si riferisce ad un �cambiamento� nell'opinione pubblica, oltre che al crescente numero di stati americani che hanno escluso per legge l'esecuzione degli handicappati mentali. Oggi sono 18 mentre erano appena due nel 1989, quando un analogo pronunciamento dell'Alta corte era andato esattamente in direzione opposta a quella di oggi, confermando le condanne.

 Nell'ultimo mese si � avvertito un altro piccolo scricchiolio nel fronte dell'iniezione letale. La corte federale di appello ha dato ragione a Calvin Jerold Burdine, condannato a morte per l'uccisione del suo compagno gay dopo un processo in cui il suo difensore si era ripetutamente e lungamente addormentato: l'esecuzione � stata sospesa, lo stato del Texas si � opposto, ma il tre giugno scorso la Corte suprema ha respinto l'opposizione. Sentenza da rivedere.

il sole 24 ore  

Quest'America dove i conti non tornano pi�

di Fabrizio Galimberti 

C'� un tempo per ogni cosa, dice l'Ecclesiaste. E c'era un tempo in cui i dati della bilancia corrente americana venivano accolti con uno sbadiglio. Tuttavia, se c'e �un tempo per seminare e un tempo per raccogliere�, c'� anche un tempo in cui i dati della bilancia corrente, che l'Ecclesiaste mai ha considerato, possono provocare inciampi valutari. Il che, per chi abbia fatto il primo anno di economia, non dovrebbe essere una novit�. Tutti i libri di testo dicono che quando un Paese vive al di sopra delle proprie risorse, la sua moneta deve svalutarsi, per riportare in equilibrio domanda e prodotto. 

A questa legge di gravit� economica gli Usa si erano a lungo sottratti, sorretti dalle spalle larghe di un Paese a moneta di riserva, fucina della nuova economia, porto sicuro per i capitali del mondo... Ma questa nomea � cambiata. Allora, gli Usa sono un Paese come un altro, che deve correggere i propri conti seguendo i dettami dei libri di testo? Non proprio. L'America continua a essere il luogo della "spesa di ultima istanza" in un mondo che avanza controvento. 

E il nuovo balzo dell'import, che ha sprofondato la bilancia commerciale in un record negativo, � almeno segno di vivacit� della domanda interna degli Usa, che assorbono beni e servizi dal resto del mondo, profondendo stimoli a economie bisognose. Se questo "pronto soccorso" �, come sempre, ben accetto dai beneficiari, bisogna per� ricordare che, come non ha detto l'Ecclesiaste, non si pu� avere la botte piena e la moglie ubriaca. Non si pu�, cio�, continuare a riempire bastimenti con le merci a destinazione Usa e allo stesso tempo godere della competitivit� offerta su un piatto d'argento dal dollaro forte. 

Oggi il resto del mondo continua ad avere la botte piena (i surplus commerciali dell'Europa, della Cina, del Giappone ... nei confronti degli Usa sono a livelli record) ma non ha pi� un dollaro ubriaco di potere valutario. La moneta Usa, secondo i (ritardati) dettami dei libri di testo, si sta svalutando. Fin qui, vuol dire che le valute si muovono finalmente secondo razionalit�, vuol dire che c'� del metodo nella pazzia valutaria. Ma � importante, per carpire i segni di instabilit� possibili, capire quali percorsi reali, nei grandi visceri dell'economia americana, sono dietro questo raddrizzamento dei cambi. 

Ebbene, il peggioramento della bilancia corrente, se ci dice che il Paese consuma pi� risorse di quante ne produca, non ci dice ancora chi � maggiormente responsabile, nell'economia Usa, di questa spensieratezza nella spesa. Fino a non molto tempo fa, il responsabile era senza dubbio il settore privato. Ma oggi, la bilancia corrente che affonda ha come paradossale contraltare un miglioramento dei conti di famiglie e imprese (i loro saldi finanziari continuano a essere pesantemente negativi, ma migliorano); tutto il debordo del Paese � dovuto invece al settore pubblico. 

Alla fine degli anni Ottanta il cancelliere dello Scacchiere Nigel Lawson usava dire che un disavanzo corrente (come era allora quello inglese) non � preoccupante se dietro vi sono le libere decisioni di adulti consenzienti nel settore privato; l'importante �, diceva, che il bilancio pubblico sia in avanzo o in pareggio (come era allora quello inglese). E cosa direbbe oggi il segretario al Tesoro Usa Paul O'Neill?

 Venerd� 21 Giugno 2002

il piccolo  

      Usa, stop alle esecuzioni dei ritardati mentali

 WASHINGTON - I ritardati mentali condannati per omicidio non potranno pi� essere messi a morte negli Stati Uniti, in virt� della sentenza pronunciata ieri dalla Corte Suprema, secondo cui la esecuzione della pena di morte nei loro confronti violerebbe il divieto costituzionale di infliggere pene crudeli o inusitate. 

Quella di ieri � una delle sentenze di maggior rilievo pronunciate da parecchi anni in qua sulla pena di morte dalla Corte Suprema, la quale ha riscontrato l'emergere di un comune sentire nazionale a favore della proclamazione di incostituzionalit� delle esecuzioni capitali di ritardati mentali.

Mancano dati numerici attendibili sulla percentuale di ritardati mentali fra gli oltre 3.700 detenuti nel �braccio della morte� delle carceri statunitensi. �Non siamo persuasi - si legge nella pronuncia della Corte Suprema, redatta dal giudice John Paul Stevens in 17 pagine - che l'esecuzione capitale di criminali mentalmente ritardati contribuisca in misura avvertibile al deterrente o allo scopo punitivo attribuito alla pena di morte�.

 Da quando la Corte Suprema ripristin� la pena di morte (era il 1976), sono risultati mentalmente ritardati 35 degli oltre 775 giustiziati negli Stati Uniti per una condanna per omicidio: cos� affermano le organizzazioni che si battono per l'abolizione della pena di morte, secondo le quali quei 35 giustiziati avevano evidenziato quozienti di intelligenza non superiore ai 70 punti (la media nazionale statunitense � di cento punti).

With Little Guidance, States Face Hard Debate on Who Is Retarded

By ADAM LIPTAK and SARA RIMER

 The Supreme Court ruling yesterday that executing mentally retarded people is unconstitutional offered the states almost no guidance on who must be considered retarded and who gets to decide.

 The decision will therefore spur vigorous legal activity on two fronts. In the courts, defendants accused or convicted of capital crimes will argue that they are mentally retarded. In the 20 states that currently allow the execution of retarded people, the legislatures will have to draft statutes establishing procedures to determine who is retarded.

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 Justice Antonin Scalia, in his dissent, noted that the mere possibility that the court would rule as it did yesterday had generated appeals from people on death row who had not previously argued that they were mentally retarded.

 Despite questions about how the ruling will play out, defense lawyers hailed it as a landmark decision that limits the reach of capital punishment after years in which the Supreme Court's rulings had made it easier to carry out executions. The lawyers said they viewed the ruling as a ratification of a national consensus against executing the mentally retarded.

 "After 15 years of absolute drought, this case gave the court the occasion to add its voice to the ongoing debate about the system being broken," said George Kendall, a staff lawyer with the NAACP Legal Defense Fund.

 Polls show that most Americans oppose the execution of the mentally retarded, and state legislatures have moved steadily since 1986 to ban capital punishment for the mentally retarded. In 1989, when the Supreme Court held that executing the mentally retarded was not a violation of the Eighth Amendment, only two states, Maryland and Georgia, prohibited such executions. Since then, 16 more states have enacted bans.

 "Every poll, and my experience with state legislatures, shows that supporters of the death penalty don't want it used for people with mental retardation," said James W. Ellis, a professor at the University of New Mexico law school who argued the case that led to yesterday's decision. "Supporters of the death penalty have a vision of who they want to be at least arguably within its scope. Supporters of the death penalty want it imposed on the most culpable."

 But putting the ruling into practice will pose legal and moral challenges.

 In the decision, the court seemed to endorse, at least in a broad sense, the statutes in the 18 states that allow the death penalty but prohibit executing the retarded. These states employ varying standards, though they generally refer to subaverage intelligence or particular I.Q. scores and to limitations in functions like social skills and the ability to care for oneself.

 The statutes usually require proof that the disability appeared early in life. The common age cutoffs are 18 and 22.

 The court's decision will apply retroactively and will effectively amend many of these statutes, which often prohibited executing only those mentally retarded people convicted after a given date. The decision will also give rise to litigation over whether an earlier failure to raise mental retardation bars doing so now.

 Mr. Ellis said the existing statutes were reasonably similar and that other states were not free under yesterday's decision to make substantially different laws.

 But even small differences in wording can have serious consequences, legal experts said.

 Paul J. Morrow Jr., a public defender in Nashville, pointed to the provision in Tennessee's statute that requires that mental retardation manifest itself by the time the defendant is 18.

 "If it manifests itself at age 19, he's suddenly more culpable?" Mr. Morrow asked.

 The procedures employed in applying those standards vary as well.

 The Arizona statute, for instance, requires that all defendants charged with capital crimes be screened by a court-appointed expert, who administers only an I.Q. test. The test is given at the beginning of the criminal proceedings.

 A score of 75 or above means prosecutors can seek the death penalty; lower scores lead to further tests and a hearing.

 But Arizona defense lawyers are boycotting the process, said Vikki Liles, a state public defender in Phoenix. They say it gives the state a tactical advantage and does not allow defense lawyers to develop either rapport with their clients or an adequate record.

 "It is unconstitutional," Ms. Liles said of the statute. "It violates all sorts of rights. It's too early in the case. It often tells the state up front that there may be no mental health issues."

 She continued: "I have some clients with I.Q.'s higher than mine. If you had a client who was a genius and committed multiple homicides, would you want a judge to know that?"

 Others say that early adjudication of the question is proper and efficient.

 "The better view is that you do it before trial, and you do it before a judge rather than a jury," Professor Ellis said. "It's cleaner, and it costs less."

 Since the death penalty was reinstituted in the mid-1970's, 35 mentally retarded people have been executed, according to Amnesty International. Another group, the National Coalition to Abolish the Death Penalty put the figure at 44.

 But that group and many legal experts say the numbers were conservative because many inmates are not tested for mental retardation before they are executed. Death penalty opponents say Texas leads the nation in executions of the retarded, followed by Virginia, Alabama, Florida and Louisiana.

 While no one knows how many retarded people are on death row, experts estimate that about 10 percent of the 3,600 death row inmates are retarded.

 Lawyers who have represented mentally retarded defendants who were executed, as well as the families of those people, said the ruling was bittersweet.

 "It came two years too late," said Yolanda Cruz, 55, whose son, Oliver Cruz, 33, was executed in Texas in August of 2000 for the rape and murder of a 24-year-old woman, Kelly Donovan. Mr. Cruz, whose school records identified him as mentally retarded, had an I.Q. of 64 or 76, depending on the test.

 Mrs. Cruz sobbed over the phone from her home in San Antonio. "Don't get me wrong," she said. "In a way I'm happy. I'm happy there's going to be mothers who won't go through what I went through. People are changing, people are thinking differently about the issue."

 With only a few states executing the mentally retarded in recent years, Mr. Cruz's lawyer, Jeffrey Pokorak, said he believed Mr. Cruz may have been the last mentally retarded person executed in the country. (The Bexar County district attorney, Susan D. Reed, whose office prosecuted Mr. Cruz, had said that the evidence of Mr. Cruz's mental retardation was "conflicting.")

 "It's the ultimate demonstration of the arbitrariness of the death penalty," Mr. Pokorak said, referring to the court's ruling, which came too late for Mr. Cruz.

 Joshua Marquis, a district attorney in Oregon who is on the board of the National District Attorneys Association, said that while he supports the death penalty, he strongly opposes the execution of the mentally retarded.

 "Rational prosecutors who support the death penalty do not want Lenny from `Of Mice and Men' executed," he said, referring to the retarded character in the John Steinbeck novel. "The problem with the Supreme Court's ruling is that it is arbitrary. It sets a bar which is very suspectible to being gamed and faked."

 Mr. Marquis said he believed inmates would fake I.Q. tests so they would be found mentally retarded.

 In his dissent, Justice Scalia made the same point.

 "One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association to realize that the symptoms of this condition can readily be feigned," he wrote.

 Legal experts and prosecutors said Justice Scalia's concern was misplaced.

 Ruth A. Luckasson, a law professor at the University of New Mexico, said: "The important thing to remember is that it's a developmental disability that at a minimum appeared before adulthood, so generally what is required is a real inventory of the person's school records and past evaluative records. Usually this person's disability will have been documented from very early on."

 Mr. Morrow, the Nashville public defender, said inquiries into developmental skills were generally made of third parties who did not even understand the reasons for the questioning.

 "You are asking uncles and aunts," he said. "Most people have no clue why you are asking questions like, Could they deal with money? Could they make change? Could they understand directions?"

 Intelligence tests, he said, are even more reliable.

 "Of all the things you can't fake, one is I.Q., particularly where you have tests running over time," he said.

 The most significant factor of all, he said, is the stigma.

 "The last thing people want to be called, other than being a child molester, is being mentally retarded."

NEW YORK TIMES

Justices Bar Death Penalty for Retarded Defendants

By LINDA GREENHOUSE

 WASHINGTON, June 20 � The Constitution bars the execution of mentally retarded offenders, the Supreme Court declared today in a landmark death penalty ruling based on the majority's view that a "national consensus" now rejected such executions as excessive and inappropriate.

 Of the 38 states that have a death penalty, 18 now prohibit executing the retarded, up from 2 when the court last considered the question in 1989. This "dramatic shift in the state legislative landscape," especially when anticrime legislation is extremely popular, "provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal," Justice John Paul Stevens wrote for the 6-to-3 majority.

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 The decision, in the case of a Virginia man with an I.Q. of 59 who was convicted of committing a murder and robbery at the age of 18, could ultimately move 200 or more people off death row. Mental health experts believe that as many as 10 percent of those convicted of capital murder are mentally retarded, although states often dispute the claim in individual cases.

 In fact, Virginia is disputing the evidence that the defendant in this case, Daryl R. Atkins, is retarded. The Supreme Court said today that it would be up to the states to develop "appropriate ways" to apply the new constitutional prohibition. The generally accepted definition of mental retardation is an I.Q. of approximately 70 or less accompanied by limitations on abilities like communication or caring for oneself.

 The dissenters today, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, disputed that there was a real or lasting consensus against executing the retarded. In a dissenting opinion that he read from the bench, Justice Scalia said that 18 states out of 38 was only 47 percent, not even half.

 In the absence of an authentic consensus, the majority had simply enshrined its own views as constitutional law, he said, adding, "The arrogance of this assumption of power takes one's breath away."

 Further, he said, "there is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this court."

 Chief Justice Rehnquist said the majority had improperly gone beyond looking at state legislative action to consider polling data and international opinion as well. "If it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant," he said.

 The 15 countries of the European Union filed a brief on behalf of Mr. Atkins, as did a group of senior American diplomats who told the court that the practice of executing retarded offenders was out of step with much of the world and was a source of friction between the United States and other countries.

 Amnesty International said that since 1995, only three countries were reported to have executed mentally retarded people: Kyrgyzstan, Japan and the United States, which the organization said had executed 35 mentally retarded defendants since the court allowed states to reinstate the death penalty in 1976. The court's decision today "will provide the U.S. criminal justice system with a critical tool to uphold human rights standards," the organization said.

 The decision overturns a ruling of the Virginia Supreme Court.

 While the justices disputed the outcome, there was no dispute on the basic analytic approach, unique to the Eighth Amendment, that depends on a sense of community norms to decide whether a practice violates the prohibition against cruel and unusual punishment. All agreed with the statement of Chief Justice Earl Warren in a 1958 case, Trop v. Dulles, that "the amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Rather, the debate was over whether the evidence supported the evolution that the majority discerned.

 The court's previous examination of the retardation question came in 1989 in a Texas case, Penry v. Lynaugh, in which Justice Sandra Day O'Connor's controlling opinion said that there was no current consensus against executing the retarded but kept the court's door open to future developments.

 The developments came quickly. From the original two states, Georgia and Maryland, the list of states exempting retarded people from capital punishment grew to include New Mexico, Kentucky, Tennessee, Arkansas, Colorado, Washington, Indiana, Kansas, Nebraska, South Dakota, Arizona, Connecticut, Florida, Missouri and New York, which excluded the retarded when it reinstated its death penalty in 1995. The federal death penalty, reinstated in 1988, exempted the retarded.

 When the court agreed last year to revisit the issue, it did so in a case from North Carolina, but North Carolina abolished the death penalty for the retarded last summer, before that case, McCarver v. North Carolina, No. 00-8727, could be argued. The justices then substituted the case they decided today, Atkins v. Virginia, No. 00-8452. It appeared earlier this year that the Atkins case might become moot as well. In February, the Virginia State Senate voted unanimously to abolish capital punishment for the retarded, but the House decided to delay action until after the Supreme Court decision.

 Surveying this rapidly changing landscape, Justice Stevens noted that the numbers alone did not tell the full story.

 "It is not so much the number of these states that is significant, but the consistency of the direction of change," especially in a strong anticrime climate, he said.

 Even most states that nominally allow executing the retarded were not actually carrying out such executions, Justice Stevens said, concluding, "The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it."

 The opinion, joined by Justices O'Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, did not end there. Justice Stevens went on to consider whether there was any reason the court should disregard or disagree with the legislative judgments. He concluded that, to the contrary, the state judgments were supported by a review of various factors making the death penalty particularly inappropriate for retarded defendants.

 "Some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards," Justice Stevens said, adding that as a result, "mentally retarded defendants in the aggregate face a special risk of wrongful execution."

 Among the factors he cited were their "diminished capacities to understand and process information" and to reason logically and control impulses. These characteristics do not mean that retarded defendants who are competent to stand trial should not face criminal punishment, Justice Stevens said, "but they do diminish their personal culpability" and indicate that the usual justifications for capital punishment, retribution and deterrence, are less applicable than to defendants with normal intelligence.

 This part of the opinion might have broader significance for the court's death penalty jurisprudence, said one death penalty expert, Professor Michael Mello of Vermont Law School.

 "It shows that a majority of the court is willing to take a fresh look at the real capital punishment, how the system really works," said Professor Mello, a former defense lawyer who opposes the death penalty.

 He predicted that the court might be open to revisiting precedents that make it all but impossible for appellate courts to consider assertions of actual innocence if the defendant has not followed exacting procedures.

 None of the current members of the court hold a position in flat opposition to the death penalty.

 Neither the majority nor the dissenters discussed the retroactive implications of the decision. Under the court's constitutional jurisprudence, the decision applies retroactively as a general matter, but states could raise objections to granting relief to defendants who had not argued the retardation issue in earlier appeals. If the lower federal courts disagree on how such cases should be handled, the question could conceivably come back to the Supreme Court, where a majority appears ready to grant full retroactivity.

 Linda Greenhouse answers readers' questions on Supreme Court rules and procedure in a column available only on NYTimes.com. E-mail Ms. Greenhouse a question at [email protected]. Please include your name, address and daytime telephone number; upon request names may be withheld. 

The Court Gets It Right

Declaring yesterday that the Constitution's ban on "cruel and unusual punishment" bars the execution of mentally retarded people, the Supreme Court injected a limited but wholly welcome measure of human decency into the nation's use of the death penalty.

 The 6-to-3 decision was a dramatic turnaround for a court that capitulated 13 years ago to a wave of pro-death-penalty sentiment and found no reason to bar the execution of the mentally retarded. In so doing, it turned a blind eye to the obvious � that inflicting the death penalty on individuals with I.Q. scores of less than 70 who have little understanding of their moral culpability violates civilized standards of justice. This time around, the court discovered a "national consensus" against executing retarded people that it could not find in 1989.

 Writing for the majority, Justice John Paul Stevens noted that mentally retarded criminals do not have the capacity to be deterred by the knowledge that they might be executed for a capital crime. He was joined by Justices Sandra Day O'Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

 The majority correctly observed that the tide of public opinion had turned. Most states now either prohibit capital punishment altogether or ban its use against the mentally retarded. In an era in which DNA evidence has shown one death row inmate after another to be innocent of the crimes of which they were convicted, the polls demonstrate steadily dwindling public enthusiasm for capital punishment in general and a widespread revulsion against the idea of executing mentally retarded people in particular.

 Justice Stevens also signaled that the question of what constitutes "cruel and unusual punishment" is not one that is answerable solely by coldly analyzing opinion polls and surveying state legislatures. It inevitably engages the moral sensibility of the individual justices. Indeed, the court had no business in the first instance relying so heavily on public sentiment when deciding an issue of life or death involving condemned murderers, a segment of the population that by definition is not held in particularly high esteem.

 Three members of the court � Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas � joined in angry dissents. Justice Rehnquist was indignant on the matter of jurisprudence by "opinion poll results," but ignored the fact that it was that very instinct to hew to what the public seemed to want that led the court into this moral swamp to begin with.

 The United States has been one of only three nations � the other two are Japan and Kyrgyzstan � that permit the execution of the retarded. Dozens of retarded convicts, most of whom had little understanding of the moral implications of their deeds, have been put to death here since 1976. In the 20 states that still have laws on the books permitting the execution of retarded people convicted of capital offenses, it is estimated that there are scores, perhaps even hundreds, of inmates whose low I.Q.'s will now qualify them for a sentence reduction to life in prison.

Landing at a moment of mounting disquiet across the political spectrum about the unfair and arbitrary workings of the nation's death penalty system, yesterday's ruling can only add momentum to current efforts underway on Capitol Hill and elsewhere to address some of the system's other lamentable flaws.

THE DALLAS MORNING NEWS

Execution of retarded barred 

Prisoners lack ability to understand penalty, majority opinion says

 06/21/2002

By DIANE JENNINGS

 The U.S. Supreme Court said Thursday that executing the mentally retarded is cruel and unusual punishment, a landmark decision that experts say may narrow the use of the death penalty.

 It marked the court's greatest shift on the death penalty in almost 25 years, analysts said.

   What do you think about today's ruling that executing the mentally retarded is unconstitutionally cruel?

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 The high court's 6-3 decision in Atkins vs. Virginia, is "an extraordinarily significant decision," said Jordan Steiker, professor of law at the University of Texas. "It's one of a small handful of decisions that categorically exempts a group from the death penalty."

 The ruling will immediately affect inmates in the 20 states that allow execution of retarded people. Dozens or perhaps hundreds of inmates in those states likely will argue that they are retarded and that their sentences should be converted to life in prison. There are 3,700 people on the nation's death rows.

 In Texas, there are at least 20 cases in which the issue has been raised � including the highly publicized case of Johnny Paul Penry, currently in the midst of a third sentencing trial in the rape and murder of a woman in Livingston. There are 455 people on the state's death row.

 Since April, three Texas inmates facing execution have received last-minute reprieves from the high court pending its review of the issue.

 Justice John Paul Stevens, for the majority, wrote: "Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial.

"Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulse and to understand the reactions of others."

 Those shortcomings make mentally retarded people less capable of understanding the purpose of the death penalty as either retribution or deterrent, he said.

 "Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability," Justice Stevens wrote.

 Joining him in the majority were Justices Sandra Day O'Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

 In an unusually bitter dissent, Justice Antonin Scalia referred to the majority's "embarrassingly feeble evidence of consensus," and he accused the majority of "thrashing about" to justify the outcome it wanted.

 Justice Scalia, who was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas, took the rare step of reading his dissent from the bench.

 The court left it to states to develop systems to ensure that mentally retarded people are not executed. How frequently prosecutors seek the death penalty in the future may depend the laws legislatures fashion to address the decision.

 The Supreme Court relied on the American Psychiatric Association's definition of retardation as an IQ of 70 or below (90-110 is an established range for normal intelligence), the manifestation of symptoms before the age of 18 and serious difficulty coping with daily activities.

 The case involved Daryl Atkins, convicted of robbing and murdering a 21-year-old Air Force airman in Virginia in 1996. During the penalty phase of his trial, a psychologist declared him "mildly mentally retarded" based on interviews, school and court records and an intelligence test that measured his IQ at 59.

 Virginia authorities argued that Mr. Atkins planned his crime and understood what he had done. Mr. Atkins provided a detailed confession to police when he was arrested, describing how he and an accomplice kidnapped the victim, forced him to withdraw cash from a bank teller machine and then drove to a deserted field and shot the victim eight times.

 Mr. Atkins had 20 previous felonies on his record at the time of the murder, according to prosecutors.

 Death penalty opponents hailed the decision. Supporters said it will delay justice for murder victims.

 "It's a positive development that the court has recognized there are evolving standards of decency in this country prohibiting the execution of the mentally retarded," said Jim Marcus, executive director of the Texas Defender Service.

 "We don't execute 7-year-olds, we don't execute children, because we recognize that mentally they are not sufficiently well developed to hold them to the same standard. And so the only difference here is that were talking about people with the physical appearance, physical age of an adult, but still are only [of] the same sort of mental capacity as children."

 Dr. Richard Garnett, president of the ARC of Texas, an advocacy group for the mentally retarded, said the decision was long overdue.

 "We're not saying they shouldn't pay for their crimes," Dr. Garnett said. "Just that the death penalty seemed to be over the line."

 Dianne Clements, president of Justice for All, a criminal justice reform advocacy group, said her reaction was one of sadness because the ruling will add years to the litigation process and "diminish the deterrence effect that we know exists within the death penalty.

 "What they're going to do is cause more innocent victims to be murdered," she said.

 Mr. Steiker, the law professor, said the decision is a "huge victory" for death penalty opponents, and is significant not only for what it said, but also for how the court arrived at its conclusion.

 The majority said executing the retarded is unacceptable because of evolving standards of decency.

 The last time the court ruled on the retardation issue was in 1989, in the case of Mr. Penry. That decision said the practice was acceptable because there was not a national consensus against it. At the time only two states prohibited the practice.

 Since then, 16 more states have enacted bans, and two other legislatures � Texas and Oklahoma � have passed them, only to have governors veto the measures.

 The court also noted opinion polls showing that the majority of Americans oppose executing the mentally retarded and also noted international opposition to the practice.

 Nationally, 82 percent of people oppose executing the mentally retarded, according to a recent Gallup Poll. A Texas Poll, taken May 20-June 9, found about two-thirds of Texans oppose it.

 The fact that the high court looked abroad and to public opinion polls is "quite significant," Mr. Steiker said, because "the international consensus against executing juveniles is even more substantial than executing persons with mental retardation."

 The full practical impact of the Atkins ruling won't be felt for years, experts say.

 It will take that long for new appeals by current death row inmates to work their way through the system, said Dudley Sharp, resources director for Justice for All.

 Prosecutors in Texas contend that the mentally retarded are already protected from unwarranted death penalty prosecution. Pretrial hearings and instructions to juries that they take into account retardation provide safeguards.

 Decisions on seeking the death penalty under the Atkins decision will be made on a case-by-case basis, Mr. Steiker said.

 "I don't think district attorneys will be monolithic in their practice," he said. "I think they'll be more likely to look at the strength of the claim of mental retardation."

 Diane Beckham, senior staff counsel for the Texas District and County Attorneys Association, said it's too early to tell whether there will be fewer executions or fewer people tried for capital crimes.

 "It will depend a lot on what the Legislature does in the future," she said.

 Dallas District Attorney Bill Hill said he does not expect the decision to greatly affect Dallas. After reviewing the cases of inmates from Dallas County on death row, Mr. Hill said, he didn't expect any inmates to raise a successful claim under the Atkins decision.

 As for future prosecutions, "we choose those cases very carefully," he said. "Practically, it will not have any effect on us."

 Staff writer Ed Timms in Dallas and The Associated Press contributed to this report.

THE DALLAS MORNING NEWS  

Death penalty: Executing the mentally retarded is uncivilized

06/21/2002

 Since the death penalty was ruled constitutional in 1976, at least 35 inmates with mental retardation have been executed nationwide, including at least six in Texas.

 Thankfully, that's history. In a 6-3 ruling, the United States Supreme Court says executions of mentally retarded inmates are cruel and unusual punishment. It is a common sense and compassionate conclusion.

 The new law of the land comes from the case of Daryl Renard Atkins. Mr. Atkins was convicted in Virginia of murdering and robbing a man for beer money. His IQ is below 65, low enough to be considered retarded under current psychiatric guidelines.

 The same is true of Texan Johnny Paul Penry. And it is true of others who were deemed mentally retarded yet were executed in the past quarter-century. Mr. Penry has been sentenced to death twice, and each time the Supreme Court overturned the sentence. Except for last-minute reprieves, two other Texas inmates who alleged mental retardation would have been executed this year.

 A claim of mental retardation is not an excuse for criminal acts, and the Supreme Court clearly doesn't suggest that it should be. Nor does the Supreme Court ruling address the constitutionality of the death penalty. But the high court makes clear that justice must be fair, and that in the case of those found to be mentally retarded, death is too harsh a penalty. As the court recognizes, mental retardation should be an extenuating circumstance to the type of punishment.

 As the court notes and we agree, public opinion has changed substantially since the court held in Mr. Penry's case in 1989 that such executions were constitutional. Including the 12 states that do not allow capital punishment, 30 states prohibit execution of the retarded. "There's an evolving standard of decency in our society to the point that these executions are indecent," said Hanna Liebman Dershowitz of Texas Appleseed, a legal advocacy group. "Now the Supreme Court clearly recognizes that."

 And so should Texas, which has steadily paced the nation in executions. The Standdown Texas Project says between 5 percent and 10 percent of the 455 inmates on Texas' death row might be mentally retarded.

 Texas had an opportunity to be counted among the states that found executing mentally retarded inmates to be unacceptable. Last year, the Legislature passed a bill sponsored by Sen. Rodney Ellis that would have prohibited the execution of the mentally retarded and set out clear guidelines in defining mental retardation. Gov. Rick Perry, however, vetoed it.

 With the Supreme Court's decision, Texas lawmakers undoubtedly will need to set clear guidelines for handling defense claims of mental retardation. It's too bad Texas missed an earlier chance to lead the parade.