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Times Change

Attorney Andrew Cohen analyzes legal decisions for CBS News and

A few years ago, it would have been unthinkable. One year ago, it still would have been a long shot. But today it is no great shock that the United States Supreme Court has banned the execution of mentally retarded people as a violation of the 8th Amendment's "cruel and unusual punishment" clause.

Virtually every public announcement the Court has made in this area over the past few years presaged Thursday's reversal of its 1989 precedent. Last year, for example, the Court halted the execution of a mentally retarded man in North Carolina in order to review his appeal. Before that review could occur, however, North Carolina had outlawed such executions.

Thirty states now outlaw the execution of mentally retarded people. Twelve states don't allow executions of any sorts.

Also, earlier this term the Court halted the execution of two Texas men whose lawyers had argued that they were mentally retarded. Those men now presumably won't have to worry about pursuing that particular appeal, either, since no court in the land now is permitted to order an execution upon a showing that the defendant has an IQ of 70 or lower. Like literally hundreds of other death-row inmates around the country, the two Texas appellants now will like see their sentences reduced to life in prison without the possibility of parole or release.

If you were reading the tea leaves closely, then, you would have sensed over the past few years that there was a shift in perception on the Court about the constitutionality of the death penalty in these circumstances. Clearly, a majority of Justices were becoming more and more concerned about the application of the justice system's most final and unappealable result in cases where there arguably was a question about the mental competence of the defendant. That unease coalesced today in the most important death penalty decision in a decade.

Writing for the majority, Justice John Paul Stephens wrote that the "deficiencies" of mentally retarded people "do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

"Mentally retarded defendants in the aggregate face a special risk of wrongful execution," Stevens wrote, because they make bad witnesses in court and are less likely at the time of the crime to be able to think for themselves or to avoid criminal impulses.

Thursday's dissenters certainly sensed the changing tide. When the Court last month granted reprieves to the two Texas killers, Chief Justice William Rehnquist and Justices Clarence Thomas and Antonin Scalia took the unusual step of publicly complaining about the move. They certainly must have known by then that the handwriting was on the wall on this issue. And they clearly are a trio not used to losing cases of this magnitude on this particular conservative court.

Perhaps that's why Justice Scalia read his stinging dissent from the bench Thursday. Apparently oblivious to the widespread reaction to his position in the Florida recount ruling, Scalia told court observers in his dissent that "seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members." The Chief Justice, meanwhile, didn't include the word "respectfully" when he wrote that he dissented from his colleagues' view.

Another reason not to be surprised by the decision in Atkins v. Virginia is that the Court 12 years ago practically invited the analysis used by Thursday's majority to support its position. When the Court upheld the constitutionality of the execution of mentally retarded people in 1989, Justice O'Connor (one of those in Thursday's majority) wrote then that there was "insufficient evidence of a national consensus" against such executions.

Today, if you believe the Court's "left" and "center-right" constituents who formed the majority, that "national consensus" exists in the form of new state statutes outlawing the practice as well as other evidence. The way Justice O'Connor framed the question 12 years ago, then, left the door open for precisely this sort of result. And if the broad coalition that generated the Atkins' decision stays together for more death penalty cases over the next few terms — a distinct possibility — there may be several more changes to death penalty law in this country before someone comes along to close that door.

By Andrew Cohen

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