SCOTUS Bans Executing Retarded Prisoners

In a sharp about-face, the U.S. Supreme Court reversed a 1989 decision Thursday, ruling 6-3 that the execution of mentally retarded prisoners is cruel and unusual punishment, and therefore unconstitutional. The decision is loaded with implications — political as well as legal. The majority opinion, written by Justice John Paul Stevens, described the changing landscape of American opinion on the subject, citing numerous state legislatures that have outlawed the practice. Dissenting from the majority were Chief Justice William Rehnquist and Justices Clarence Thomas and Antonin Scalia, who penned a scathing rebuttal to their colleagues' opinion. The three judges have expressed frequent and vocal displeasure over what they consider the Court's softening attitude toward the death penalty. For years there has been widespread speculation that Court moderates Justices Anthony Kennedy and Sandra Day O'Connor are inching away from their steadfast support for the death penalty. Kennedy has cited his Catholic faith, which rejects the death penalty, as being at the heart of his own doubts.

Death penalty proponents needn't worry just yet: while Thursday's decision has staggering ramifications for a select number of death penalty cases in the 20 states that still allow executions of mentally retarded prisoners, it does not affect the vast majority of prisoners waiting to be executed.

In fact, according to Martin Belsky, a former prosecutor and current dean of the Law School at the University of Tulsa, most prisoners who hope to capitalize on the ruling are out of luck.

"In the wake of this decision, we're going to see a lot more petitions being filed," Belsky says, "and almost all of them will be summarily dismissed." Why? "If you didn't raise the issue in the trial or appeal in the first place, you're not going to suddenly get a judge to consider it now, just because this ruling came down."

There will be some beneficiaries, he adds. For example, anyone who is mentally retarded but whose defense attorney was too incompetent to bring it up during a trial or in appeals could be granted a new trial. Sounds easy enough, but it's going to be a tough case for defense attorneys to make, Belsky says. "If the first lawyer made a conscious, strategic choice to avoid the issue of the client's mental capacity, there will be no retrial. So of course every prosecutor will try to deflect charges of incompetence and uncover strategic plots in the defense's tactics." There will also be some new hearings — and possibly sentences, but no new trials — for those who are retarded but whose condition, for whatever reason, was never considered in the first trial.

There's another, ancillary population that could be affected by this ruling — defendants under the age of 16. "This decision provides a very easy segue for defense attorneys to argue that anyone younger than 16 is not functioning at full adult capacity," Belsky says, and therefore they are, by definition, mentally challenged. That defense, predicts Belsky, is going to be tough to pull off — but that won't stop defense attorneys from trying.