Thirteen years ago the U.S. Supreme Court ruled that a convicted criminal’s mental retardation does not prevent states from executing that individual. On February 20 the Court heard arguments in a case that may allow it to reverse its earlier decision.

With more Americans expressing opposition to the death penalty as an option for prisoners of extremely low intelligence, the Supreme Court agreed to hear an appeal of a death sentence filed on behalf of a condemned murderer in Virginia who has an IQ of 59. An IQ at this level corresponds to a mental age of 9 to 12 years.

Daryl Atkins was convicted of carjacking and murder, the goal of which was to rob the victim to obtain money with which Atkins could buy beer.

Justices indicated a recognition that public opinion on putting mentally retarded criminals to death appeared to have changed dramatically since they last visited the issue in 1989 in the case Penry v. Lynaugh. At that time they found that such executions did not meet the definition of cruel and unusual punishment, which would have rendered them unconstitutional.

There is also growing concern among advocates and others that with an ever-increasing number of people with mental illness and developmental disabilities ending up in the criminal justice system instead of the mental health system, courts could be faced with more opportunities to decide whether such individuals should be put to death.

In Virginia, which is one of the states that allow the death penalty for criminals with mental retardation, lawmakers have deferred debate on whether to rewrite the law to ban such executions until they have a ruling on the Atkins case from the Supreme Court.

Eighteen states prohibit executions of mentally retarded individuals. Only two, Georgia and Maryland, did so when the Court handed down its 1989 ruling. In deciding Penry in 1989, Justice Sandra Day O’Connor, writing the opinion for the Court’s 5-to-4 majority, stated that there was no "national consensus" about whether to bar executions of people who are mentally retarded, and thus the Court did not hold the practice to be a violation of the Eighth Amendment’s ban against cruel and unusual punishment. The Court also said, however, that mental retardation should be considered as a mitigating factor when juries debate whether to sentence a criminal to death.

President George W. Bush has said he is opposed to putting people with mental retardation to death. His own state of Texas still permits executions of mentally retarded people. Six such individuals have been executed in the last 20 years, two of them while Bush was governor, according to the Death Penalty Information Center.

The main issue for the Court in the Atkins case is whether a national consensus has developed that now views executions of mentally retarded people as cruel and unusual punishment and thus unconstitutional.

The Court had previously decided to hear the appeal of a North Carolina death-row inmate as its vehicle to revisit the issue, but before the Court could hear it, North Carolina passed a law banning executions of people with mental retardation, so it substituted the Virginia case on its docket.

The Death Penalty Information Center’s Web site at www.deathpenaltyinfo.org has information about cases and state laws concerning execution of mentally retarded persons. Click on "Information Topics" and then "Mental Retardation."

[The case before the Supreme Court is Atkins v. Virginia 00-8452.] ▪