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opinion:
our view
Capital punishment
too harsh
The Supreme Court
announced
Monday that it
would hear the case of Ernest P. McCarver, a mentally retarded
North Carolina inmate facing execution for a 1987 murder conviction.
The topic in question
is whether it is cruel and unusual punishment to execute people
whose IQ is below 70, the cut-off for classification for mental
retardation.
In 1989, the Supreme
Court rejected, in a 5-4 vote, an appeal for Johnny Paul Penry
on those grounds, but cited growing public sentiment against
the practice as the reasoning for their change.
Yesterday, the
court heard arguments regarding Penry again on whether the
jury should have been instructed to use Penry's retardation
as a mitigating factor in deciding on the death penalty.
The court will
likely use the Penry case to rule on jury instructions regarding
retarded defendants, and then use the McCarver case to decide
on the Eighth Amendment issue.
The public sentiment
the court referred to seems to be indicated by the fact that
11 states, which have capital punishment, have moved away
from using it on the mentally retarded.
The court will
not hear the McCarver case until the next session, but until
then, all pending executions of mentally retarded inmates
will be stayed.
People with such
limited mental capacities should not be tried on the same
grounds as fully functioning adults. In McCarver's case, the
jury ruled that he had the intellectual functioning of a 10-
or 12-year-old. Presumably, his moral capacity is just as
limited.
Just as the court
has shied away from giving the death penalty to juvenile offenders,
they should not prescribe it for mentally retarded killers.
Whether capital
punishment is cruel and unusual is not the question here,
only whether it is cruel and unusual for the mentally retarded.
Treatment is the best solution for them, not the cold injection
of a needle or the slow fizzle of the poisonous gas capsule.
How the court plans
to track evolving public sentiment in guiding its decision
is another question. Given the slim margin in the first Penry
ruling, whether the make-up of the court changes between the
two upcoming decisions could be a factor.
Of course, if President
Bush chooses to follow recent form and nominate an ultra-conservative
who would have felt at home presiding over the Spanish Inquisition,
the McCarver ruling could have a decidedly stricter tone.
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