Where I Stand — Mike O’Callaghan: Big job left for states

Tuesday, July 2, 2002 | 8:18 a.m.

MOST AMERICANS WILL FIND IT difficult to disagree with the U.S. Supreme Court ruling that the mentally retarded can't be given the penalty of death for any crime. What will cause more than a few arguments is the attempt for Nevada and other states to determine how to define mental retardation when the death penalty is being considered. The quick use of 70 or below IQ just won't be adequate to meet these needs. Certainly the six justices who ruled to abolish the death penalty for the mentally retarded didn't even attempt to give a definition but left this most difficult job up to the several states.

The decision, written by Justice John Paul Stevens, flows from Atkins v. Virginia. The petitioner, Daryl Renard Atkins, according to the New York Times, "was convicted of abduction, armed robbery and capital murder and sentenced to death. At approximately midnight on Aug. 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck, where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed ...

"In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was 'mildly mentally retarded.' His conclusion was based on interviews with people who knew Atkins, a review of school and court records and the administration of a standard intelligence test, which indicated that Atkins had a full scale I.Q. of 59. The jury sentenced Atkins to death ..."

Because a large number of states have outlawed the use of the death penalty for the mentally retarded, the court interpreted these actions as a consensus to make its decision. The justices also reminded us that the execution of the mentally retarded for a federal crime was forbidden by Congress in 1988.

Justice Antonin Scalia, when writing a dissent to the decision, doesn't find a national consensus favoring the denial of using death for mentally retarded criminals. He points out that only 18 of the 38 states that allow the death penalty have outlawed its use for the mentally retarded. This may sound logical until you add the 12 states that don't have the death penalty to the 18. This adds up to 30 states that don't allow the execution of mentally retarded.

Scalia goes on to write, "Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 states it relies on is still in its infancy. The oldest of the statutes is only 14 years old; five were enacted last year; over half were enacted within the past eight years. Few, if any, of the states have had sufficient experience with these laws to know whether they are sensible in the long term."

The 2003 Nevada Legislature now has the job to write a statute that meets the demands of outlawing the death penalty for mentally retarded criminals. No matter what they write, the resulting statute will be challenged by some prosecutors and will be used by some defense attorneys to keep killers off death row. Defining the capability of a mentally retarded criminal to carry out a complex crime and still not understand the seriousness of his actions will be most interesting. There are different methods of defining mental retardation but few, if any, are designed to meet the challenges expected in American courts.

There is good reason to believe the Supreme Court has used this case to take one more step in doing away with the death penalty for any crime by any person. Scalia writes, "It is just a game, after all. There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this court."

May I add that the entire legal process is anything but a game for murder victims and the families they leave behind. It has only become a game in the minds of some lawyers, judges and justices.