High court to rule on executions of the retarded

Compiled from Times wires

© St. Petersburg Times, published March 27, 2001

WASHINGTON -- The Supreme Court announced Monday that it would decide whether the execution of mentally retarded murderers should be deemed unconstitutional as "cruel and unusual punishment" in violation of the Eighth Amendment.

The court also cast new doubt on the future of affirmative action as it agreed to hear a white contractor's challenge to federal programs that give an edge to minority-owned businesses.

Both cases will be argued in the fall.

The execution case could produce the court's most important ruling on the death penalty in years. About 10 percent of the 3,600 prisoners on death row are mentally retarded, meaning they have IQ scores of less than 70, according to experts. To decide the issue, the court agreed to hear an appeal by an inmate on North Carolina's death row, Ernest P. McCarver, with an IQ of 67.

Twelve years ago, the last time the Supreme Court considered the question, only two states with the death penalty, Georgia and Maryland, barred execution of the retarded.

"There is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment," Justice Sandra Day O'Connor said in her opinion for the court in that case, which voted 5-4 to reject a constitutional challenge to the death penalty by a retarded Texas inmate, Johnny Paul Penry.

Since then, 11 states have joined the list of those rejecting the death penalty for retarded killers, and others appear poised to do so. When states without the death penalty are included in the count, half the states no longer execute mentally retarded killers.

The grant of review was a surprise because the court appeared to be moving by small steps on the retardation issue.

Carver was convicted in 1987 of robbing and murdering a fellow cafeteria worker in Concord, N.C.

This morning, the justices will hear arguments for the second time in the case of Penry, the inmate whose earlier appeal led the court to reject the broad attack on executing the retarded. In the 1989 Penry ruling, the court vacated his death sentence on the narrower ground that the Texas death penalty law turned his retardation into a double-edged sword, possibly convincing jurors that his inability to control violent impulses made him especially dangerous and thus a candidate for execution.

After a new hearing in Texas, Penry was again sentenced to death, and the issue before the justices today is whether the instructions to the jury in response to the first Penry ruling allowed the jury to use retardation as a reason to view him as less, not more, deserving of the death penalty.

The affirmative action case tests whether race can ever be used as a plus factor for awarding government contracts.

It also puts the Bush administration on the spot. While conservatives have opposed minority-preference programs, the government's lawyers are generally obliged to defend federal programs.

Federal transportation law says that "not less than 10 percent" of the highway and transit funds should go to "disadvantaged business enterprises." The law presumes businesses headed by "black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans and other minorities" are socially and economically disadvantaged. The 10 percent set-aside would amount to about $17-billion a year.

Medical marijuana case

On Wednesday, lawyers will try to convince the U.S. Supreme Court that federal anti-drug laws shouldn't prevent marijuana from being given to seriously ill patients for pain relief.

"Once the justices recognize what's really at stake in this case, if any semblance of justice prevails then so will we," said Robert Raich, an attorney for the Oakland Cannabis Buyers' Cooperative.

The cooperative is a distribution club operating under California's Proposition 215, the voter-approved law that allows the possession and use of marijuana for medical purposes on a doctor's recommendation.

The government sued the cooperative and five other California pot clubs in 1998 to prevent them from distributing the drug. A federal judge sided with the government. Last year, the 9th U.S. Circuit Court of Appeals ruled that "medical necessity" is a legal defense.

© 2006 • All Rights Reserved • Tampa Bay Times
490 First Avenue South • St. Petersburg, FL 33701 • 727-893-8111

Contact the Times | Privacy Policy
Standard of Accuracy | Terms, Conditions & Copyright