Justices Bar Death Penalty for Retarded Defendants nytimes.com
Today's NYT story does a lot better that yesterday's quickie. The context is explained here, there is consistency with the original '89 ruling that was overturned.
While the justices disputed the outcome, there was no dispute on the basic analytic approach, unique to the Eighth Amendment, that depends on a sense of community norms to decide whether a practice violates the prohibition against cruel and unusual punishment. All agreed with the statement of Chief Justice Earl Warren in a 1958 case, Trop v. Dulles, that "the amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Rather, the debate was over whether the evidence supported the evolution that the majority discerned.
The court's previous examination of the retardation question came in 1989 in a Texas case, Penry v. Lynaugh, in which Justice Sandra Day O'Connor's controlling opinion said that there was no current consensus against executing the retarded but kept the court's door open to future developments.
The developments came quickly. From the original two states, Georgia and Maryland, the list of states exempting retarded people from capital punishment grew to include New Mexico, Kentucky, Tennessee, Arkansas, Colorado, Washington, Indiana, Kansas, Nebraska, South Dakota, Arizona, Connecticut, Florida, Missouri and New York, which excluded the retarded when it reinstated its death penalty in 1995. The federal death penalty, reinstated in 1988, exempted the retarded.
When the court agreed last year to revisit the issue, it did so in a case from North Carolina, but North Carolina abolished the death penalty for the retarded last summer, before that case, McCarver v. North Carolina, No. 00-8727, could be argued. The justices then substituted the case they decided today, Atkins v. Virginia, No. 00-8452. It appeared earlier this year that the Atkins case might become moot as well. In February, the Virginia State Senate voted unanimously to abolish capital punishment for the retarded, but the House decided to delay action until after the Supreme Court decision.
Surveying this rapidly changing landscape, Justice Stevens noted that the numbers alone did not tell the full story.
"It is not so much the number of these states that is significant, but the consistency of the direction of change," especially in a strong anticrime climate, he said.
Even most states that nominally allow executing the retarded were not actually carrying out such executions, Justice Stevens said, concluding, "The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it."
The opinion, joined by Justices O'Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, did not end there. Justice Stevens went on to consider whether there was any reason the court should disregard or disagree with the legislative judgments. He concluded that, to the contrary, the state judgments were supported by a review of various factors making the death penalty particularly inappropriate for retarded defendants. |
