THE US: Reversing a 13-year-old decision, the US Supreme Court yesterday deemed the execution of the mentally retarded a "cruel and unusual punishment" prohibited by the Constitution. In doing so, the court opened the way for what are expected to be dozens of appeals against sentence from the 2,700 prisoners on this country's death row.
Some 20 US states still allow the execution of the mentally retarded, while a further 18 states retain the death penalty in more restricted circumstances.
The decision, by six to three, from a court that in the past has been seen to favour the death penalty, was welcomed by civil rights campaigners who believe it will add legitimacy to their growing campaign for a moratorium. Human Rights Watch applauded what it said was the end of a "barbaric" practice.
Ruling on the Virginia murder conviction of Daryl Atkins, a man with an IQ of 59 and a mental age of between 9 and 12, Justice John Paul Stevens argued for the majority that a sufficient national consensus against the execution of the mentally retarded has been created since 1989 when only two death-penalty states banned the practice. "It is not so much the number of these States that is significant, but the consistency of the direction of change," he wrote.
"This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty," Justice Stevens wrote.
"Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability," he argued, warning that retarded people make bad witnesses, and may come off in court as unrepentant.
"Mentally retarded defendants in the aggregate face a special risk of wrongful execution," he wrote.
"Construing and applying the Eighth Amendment in the light of our 'evolving standards of decency', we therefore conclude that such punishment is excessive," he concluded.
But the decision was sharply criticised by two of the minority in separate opinions. Justice Antonin Scalia insisted that "Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members".
And Chief Justice William Rehnquist joined his colleague in denouncing the majority for relying on the views of other countries - including the EU which had submitted an amicus curiae brief - religious organisations and opinion polls, arguing that to rely on them was to threaten federalism.
"I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the court's ultimate determination," the Chief Justice said. "Believing this view to be seriously mistaken, I dissent," he said, omitting the customary qualifier "respectfully".
The court said it will be up to states to develop their own systems to ensure that mentally retarded people are not executed.