Supreme Court weighs state's right to execute mentally retarded killer

Justices revisit question over cruel and unusual punishment in Va. case

February 21, 2002|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

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.

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