The United States Supreme Court handed down two important decisions in recent days, affecting the death penalty. The first decision declared that executing the mentally retarded is unconstitutional. The second decision declared that juries, not judges, must make the factual determination that a convicted murderer receive the death penalty. This decision means that 800 people on death row in nine states may be spared the death penalty.
While both decisions appear to show that the Supreme Court’s support for the death penalty is eroding, we are cautioned that this is not necessarily so. The 7-2 decision on the necessity of juries rather than judges to decide, included strong supporters of the death penalty. What is significant in the ruling on the mentally retarded is that the Supreme Court is listening to the states on this question.
The court based its reasoning on the recent action of 18 states which now ban execution of the mentally retarded, up from just two in 1989. The court called it “a dramatic shift in the state legislative landscape.” The court observed that a national consensus is forming which “provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal."
It is anticipated that some 200 people will be moved off death row. Ten percent of the 3,600 people on death row are mentally retarded. Between 35 and 44 retarded inmates have been executed since the death penalty was restored in the mid 1970’s. The debate will now shift to the question: “who is mentally retarded?” Several states use IQ scores of under 75. Those who believe strongly in the death penalty will demand a lower standard. Those opposed will fight for a higher standard.
Only two countries in addition to the United States execute the retarded: Kyrgyszstan and Japan. While the majority of Americans still support the death penalty, what is significant in these decisions is that there is greater scrutiny of its fairness. Two states, Illinois and Maryland have declared a moratorium on the death penalty because of grave questions of whether it can be fairly applied. If more states question the justice of the death penalty, I hope that the Supreme Court will rule once again in the future and conclude that the death penalty is “cruel and unusual punishment.” That would place us amongst the vast majority of nations that now do not have the death penalty.
This is Madeleine May Kunin.
Madeleine Kunin is a former governor of Vermont.