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Supreme Court to decide if mentally retarded inmates can be executed

By Caroline Nolan
CNN Washington Bureau

WASHINGTON (CNN) -- Indicating its commitment to resolving whether it is unconstitutional to execute the mentally disabled, the U.S. Supreme Court dismissed a case involving a mentally disabled North Carolina death row inmate Tuesday, but announced it will decide whether a retarded defendant in Virginia should be put to death.

The court agreed to hear an appeal from Daryl Atkins, a Virginia death penalty inmate convicted of the 1996 murder of Eric Nesbitt, an airman stationed at Langley Air Force Base. Atkins' attorneys claim he is mildly retarded, with an IQ of 59.

Last year the Virginia Supreme Court rejected Atkins' claims that the trial judge erred in failing to instruct the jury to consider Atkins' mental retardation and his age before sentencing him to death.

But earlier this year, the U.S. Supreme Court overturned a death sentence for John Paul Penry in a 6-3 decision, finding a Texas jury had not been given adequate opportunity to consider Penry's mental handicaps during his sentencing.

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That decision came 12 years after Penry's first appeal, in which the Supreme Court found the execution of mentally retarded defendants did not violate the Eighth Amendment's ban on cruel and unusual punishment. In the Court's 1989 decision, Justice Sandra Day O'Connor wrote that no "national consensus" had emerged against executing the mentally disabled.

"The Eighth Amendment is a moving target," said Mary Cheh, a law professor at George Washington University. Cheh pointed out that 18 states have now passed a ban on executing the mentally disabled and the high court may now feel national sentiment has shifted.

Georgetown University law professor Mark Tushnet agreed. Tuesday's order indicates the court is prepared to consider a "categorical exclusion of the mentally retarded from the death penalty," he said.

As expected, the court dismissed a case involving a mentally disabled defendant in North Carolina. Attorneys for Ernest McCarver had moved for dismissal of his appeal in light of North Carolina's recent passage of a state law prohibiting the execution of mentally disabled defendants. State legislators have indicated they will apply the statute retroactively, allowing McCarver to fall under its purview.

The court's orders leave justices with two death penalty appeals on their docket for the 2001 term, which begins Monday. The second appeal claims a Virginia death penalty inmate, Walter Mickens, was inadequately represented at trial because his appointed attorney had previously represented his victim on an unrelated matter. By coincidence, the attorney in Mickens' case, Bryan Saunders, also represented Atkins before the Virginia courts.

Experts say the court could agree to decide the Mickens case on a narrow basis, or the justices could seize the opportunity to tighten restrictions on the quality of lawyers appointed in capital cases.

The court may also be called upon this term to again consider the fate of Napoleon Beazley, a Texas death penalty inmate who was granted a stay of execution by a Texas appeal court on August 15. Beazley's application for a stay was rejected by a 3-3 vote in the Supreme Court earlier in the year. Three justices recused themselves from the case.

Beazley was convicted of murdering the father of 4th Circuit Judge Michael Luttig, with whom justices Antonin Scalia, David Souter and Clarence Thomas have personal relationships. Beazley was only 17 at the time of the murder.

The U.S. Supreme Court ruled in 1988 and 1989 that 16-year-olds are old enough to be sentenced to death, finding there was no clear indication that the execution of juveniles qualified as cruel and unusual punishment.