Supreme Court justices struggled Wednesday with whether the Constitution prohibits executions of the mentally retarded, as a lawyer for a convicted killer urged the court to rule that the practice amounts to cruel and unusual punishment.
During an hourlong session of arguments, the justices gave little indication of how they viewed the issues in the case that raises a question the court considered just 13 years ago. Then, the justices refused to rule that the Constitution prohibits executions of the mentally retarded.
But a lawyer for convicted killer Daryl Atkins argued Wednesday that much has changed since 1989. He said there now is a national consensus that such executions would violate standards of decency.
“The evidence is now clear. The American people in every region of the country have reached a consensus,” said James Ellis, who represents Atkins. “The death penalty is different. It is reserved for those whose understanding is sufficiently clear that the penalty of death could be appropriate.”
Several of the more conservative justices seemed reluctant to strip the states of the authority to decide whether the mentally retarded could be subject to execution. But others, including Justice Sandra Day O’Connor, noted that the states could decide what constitutes mental retardation.
The case, one of the most closely watched of the term, could affect laws in 20 states that permit executing the mentally retarded. The case came about after Atkins was convicted and sentenced to death for the 1996 murder of a Virginia man.
Atkins’ lawyer argued on appeal that the sentence was disproportionate to the crime, because the state never had executed someone with such a low IQ. Atkins, who has an IQ of 59, lost in the lower court, but the Supreme Court decided last year to hear the case and determine whether the practice violates the 8th Amendment’s prohibition against cruel and unusual punishment.
In evaluating whether a punishment is cruel and unusual, the court looks to how society views it, in light of “evolving standards of decency.” To gauge those views, it considers state laws to see whether there is a national consensus.
In 1989 when the court considered the issue of executing the mentally retarded, only two states that allowed the death penalty prohibited the practice. Now, 18 of the 38 states that allow the death penalty ban the execution of the mentally retarded. When combined with the 12 states that have no death penalty, Ellis noted, a majority of states oppose the practice.
Ellis argued the states have come to that conclusion because they believe the mentally retarded don’t have a “full understanding of the wrongness” of their actions. What’s more, states may be concerned that the mentally retarded have a greater possibility of being wrongfully convicted and sentenced.
Chief Justice William Rehnquist asked Ellis how the court should decide a consensus had been reached.
“Should we not look to legislative enactments as the surest indication of the views of the states?” O’Connor asked, interrupting Ellis’ response.
Justice Antonin Scalia worried aloud Wednesday that the court must be careful about ruling that a consensus had been reached on the issue. Once the court rules the practice is unconstitutional, “there can’t be any legislation that allows us to go back,” he said, even if states change their minds on the issue.
Pamela Rumpz, a Virginia assistant attorney general, argued that the state laws had only been on the books an average of five years. That’s not enough of an enduring consensus, she said, to hold the practice unconstitutional.
