RIGHTS: U.S. Supreme Court Bans Executions for Mentally Retarded

By Jim Lobe Reprint | | Print |

Jim Lobe

WASHINGTON, Jun 20 2002 (IPS) - The U.S. Supreme Court ruled Thursday the execution of mentally retarded people is cruel and unusual punishment under the U.S. Constitution.

The practical effect of the decision could be considerable, as 20 U.S. states that still permit the death penalty to be imposed on mentally retarded individuals will have to change their laws and commute the sentences of mentally retarded prisoners awaiting execution.

There are some 2,455 prisoners on death row in those 20 states and an estimated five percent of them may be mentally retarded, according to New York-based Human Rights Watch (HRW). There are 3,701 persons currently awaiting execution across the United States.

A majority of six of the nine justices held in the case of ‘Atkins v. Virginia’ that execution of individuals with very limited intelligence serves no legitimate purpose and that a national and international consensus has emerged in recent years that the practice should be banned. Three justices dissented.

“We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty,” wrote Justice John Paul Stevens in the majority opinion.

Human rights and death-penalty abolition groups said the decision marked a major advance for their causes.

“Executing the mentally retarded has long been a violation of international standards of justice and decency,” said William Schulz, executive director of Amnesty International USA (AIUSA). “In its Atkins v. Virginia decision, the U.S. Supreme Court has finally ushered the United States into the civilised nations when it comes to such executions.”

“Thirty states have either banned the death penalty altogether or stopped the execution of those with mental retardation,” noted Richard Dieter, who heads the Death Penalty Information Center (DPIC). “There is no doubt that there is now a national consensus on this issue.”

“Concerns remain about other aspects of the death penalty,” he added, “but at least today we have stopped a practice that most Americans and the rest of the world finds abhorrent.”

The three dissenting justices — all nominated by Republican presidents — strongly disagreed with the majority’s conclusion. Chief Justice William Rehnquist, who was appointed by former President Richard Nixon 30 years ago, objected in particular to the majority’s reference to foreign laws and public opinion as considerations in its decision.

Since 1995, only three countries — Japan, Kyrgyzstan, and the United States — are reported to have carried out executions of mentally retarded defendants, according to Amnesty. Since 1977, at least 35 mentally retarded prisoners, or those with significant brain damage, have been executed in the United States, the London-based group said.

The dissenting judges also noted that the majority effectively overruled a 1989 decision that found explicitly that executing the mentally retarded did not violate the Constitutional ban on cruel and unusual punishment. “Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members,” wrote Justice John Scalia, generally seen as the most right-wing member of the Court.

But the 1989 decision based its decision on the assertion that a “national consensus” against the practice had not yet developed. At the time, only two states prohibited execution of the mentally retarded. Thirteen years later, 16 more states and the federal government itself have all enacted laws banning the practice.

“It is not so much the number of these states (that have banned the practice) that is significant, but the consistency of the direction of the change,” Stevens wrote, adding that it “is fair to say that a national consensus has developed against it.”

While the Court majority noted Washington’s international isolation on the issue, it placed stronger emphasis on domestic public opinion, including strong statements in recent years by major U.S. religious, psychological and criminology associations, as well as bans enacted by state legislatures. A Gallup poll released last month found that 82 percent of the public opposes executing the mentally retarded and only 13 percent support it.

Atkins v. Virginia involved a defendant, Daryl Atkins, with an Intelligence Quotient (IQ) of only 59, who was convicted for the 1996 robbery and murder of Eric Nesbitt. An IQ of less than 70 is considered a major indicator of mental retardation.

Most scholars of criminal law have long argued against executing mentally retarded defendants for the same reason that that they have opposed the death penalty for children.

Like children, their disability makes it hard for them to understand legal concepts, and their unreliable memories and difficulty in processing information make it hard for them to cooperate in their own defence.

“Being characteristically eager to please authority, many detainees with mental retardation waive their rights to remain silent and even make false confessions,” according to HRW, which last year published a report called ‘Beyond Reason, The Death Penalty and Offenders with Mental Retardation.’

In one recent case, also in Virginia, a defendant, Earl Washington, confessed to crimes he never committed. After being sentenced to death, Washington received an absolute pardon when DNA testing revealed his innocence.

“Although they commit terrible crimes, by virtue of their disability, they should never be considered among the most culpable offenders for whom, in the United States, the death penalty is ostensibly reserved,” said Jamie Fellner, director of HRW’s U.S. programme.

As recently as two months ago, the U.N. Commission on Human Rights approved a resolution urging those U.S. states that retain capital punishment not to impose it against the mentally retarded. In 1998, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions said that such executions violated the International Covenant on Civil and Political Rights, which bans cruel and unusual punishment.

“To execute a mentally impaired offender flies in the face of international human rights standards,” said Sue Gunawardena-Vaughn, with AIUSA’s campaign to abolish the death penalty.

Even President George W. Bush, who as Texas governor oversaw the execution of at least three defendants with IQs of less than 70, has changed his mind. “We should never execute anybody who is retarded,” he said last year.

Some death-penalty foes said the Court’s reasoning might be important in cases where juveniles tried in adult courts face the death penalty. According to AIUSA, the Missouri Supreme Court temporarily halted the Jun. 5 execution of a juvenile convicted of murder pending Thursday’s ruling.