USA TODAY

Door open to death-penalty limits

Jun 21, 2002

Joan Biskupic 

For more than a quarter-century, the Supreme Court has upheld the death penalty. Its decision Thursday exempting the mentally retarded does not retreat from that stance, but it does signal a new willingness to limit when the ultimate punishment can be imposed.

In its ruling, the court relied on attitudes in the states and even in foreign countries against allowing such executions. The court's message: It will consider public consensus when deciding when the death penalty is inappropriate.

 Those seeking changes in death-penalty laws hope the court eventually will rule that defendants cannot be executed for crimes committed when they were under age 18, and that the justices will impose competency standards for lawyers in capital cases.

 ''Just as many states have, the court might now find that the execution of juvenile offenders is unconstitutional,'' says Virginia Sloan of the Washington, D.C.-based Constitution Project. ''I don't think the court is going to get rid of the death penalty, but it is showing new interest in making sure that the system works better.''

 Meanwhile, some states and other critics of the ruling are concerned about a flood of appeals from death-row inmates claiming to be retarded.

 ''We will . . . be vigilant against those who would deceive the courts by claiming they are retarded when they are not,'' says Attorney General Bill Pryor of Alabama, one of 20 death-penalty states that had not exempted the retarded from executions. Those states include California, Texas and Pennsylvania, which together have more than 1,200 of the 3,700 state inmates awaiting execution across nation.

 Michael Rushford, president of the Sacramento-based Criminal Justice Legal Foundation, which urged the court not to single out the retarded, says states could have a hard time determining standards. ''This could give defendants a 'Get off Death Row Free' card,'' he says.

 But in the ruling, Justice John Paul Stevens ( news - web sites) noted that medical experts consider someone with an IQ below 70 to be retarded and expect the condition to have been discovered by age 18. The average adult IQ is 100. The Virginia inmate in Thursday's case, Daryl Atkins, claims to have an IQ of 59.

 Reversing a stance the court took 13 years ago, the justices ruled 6-3 that executing the mentally retarded violates the Constitution's ban on cruel and unusual punishment. Stevens said the ruling flowed from the growing number of states banning such executions. Eighteen death-penalty states have done so; only two had in 1989, when the court upheld executions of the retarded.

 Death-penalty foes say they will press for exemptions for defendants who committed their crimes when they were under 18. The court has allowed executions for those who were as young as 16 when they committed their crimes.

 David Elliot of the National Coalition to Abolish the Death Penalty says 16 of the 38 death-penalty states do not execute those whose crimes were committed when they were under age 18. The coalition also says that since 1976, 44 prisoners classified as retarded have been executed.

 Several states have moved to improve the quality of the lawyers appointed to represent needy defendants. The inadequacy of court-appointed lawyers has been noted by Justice Ruth Bader Ginsburg ( news - web sites), who said in a speech last year that in the many death-penalty cases she had reviewed, she had never seen a defendant who was well represented at trial. Justice Sandra Day O'Connor ( news - web sites) said last year that ''the system may well be allowing some innocent defendants to be executed.''

 Concerns about flaws in state death-penalty rules and the scores of inmates who have been freed because of DNA evidence have led states to scrutinize whether executions are being reserved for the worst criminals.

 Stevens noted similar concerns elsewhere: ''Within the world community,'' executing the retarded ''is overwhelmingly disapproved.''

 That irked Chief Justice William Rehnquist ( news - web sites), who dissented along with Justices Antonin Scalia ( news - web sites) and Clarence Thomas ( news - web sites): ''I fail to see . . . how the views of other countries . . . provide any support for the court's ultimate determination.''