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Supreme Court Watch

June 20, 2002 at 12:00 AM EDT


TERENCE SMITH: Now two views on today’s death penalty decision. Diann Rust-Tierney is the director of the American Civil Liberties Union Capital Punishment Project. Michael Dennis Rushford is the president of the Criminal Justice Legal Foundation. Both organizations filed opposing friend of the court briefs in this case. Welcome to you both.

Diann Rust-Tierney, what’s the significance of this ruling as you see it?

DIANN RUST-TIERNEY: Well, I think the court here has added to the growing concern about the fairness of the death penalty so the significance is quite big. We’re saying there’s a category of people who cannot be subject to the death penalty because it’s fundamentally unfair.

TERENCE SMITH: And, Michael Rushford, what’s your reading of the significance of it?

MICHAEL DENNIS RUSHFORD: Well, it’s significant in that the court made a policy statement as opposed to ruling on legal grounds, and by excluding a whole class of potential murderers, they’ve also complicated what the states can do to screen these people out and have stepped away from the historic reliance on juries, which have made this decision in years past and frankly the evidence is not there that mentally retarded defendants, clearly mentally retarded defendants are getting executed.

TERENCE SMITH: Why do you describe it as a policy decision?

MICHAEL DENNIS RUSHFORD: Well, there is nothing in the Eighth Amendment that deals with mentally retarded defendants. The court seemed to get out in front of what it sees as a public opinion trend and say that, “We feel that this is wrong also.” And they’ve left nothing for the states to go on as far as guidelines as to how to proceed now and determine which defendants would be considered mentally retarded and which are not.

TERENCE SMITH: Diann Rust-Tierney.

DIANN RUST-TIERNEY: I couldn’t disagree more. First of all the court followed a pattern of decisions that it’s had for a very long time explaining exactly how the eighth Amendment is supposed to work. It’s an evolving document. And so what the court did was first rely on very objective standards. What have the people said through their state legislatures? They’ve spoken.

The public debated this question and decided that on balance people with mental retardation don’t have the degree of culpability that should have them face the death sentence. That’s not to say that they shouldn’t be punished or held responsible but the death penalty is not appropriate. So the court in this case really didn’t do anything controversial.

It did what it’s always done, which is first look at how the people have spoken through their states and look at the policy debate and then decide yes on balance our Constitution does grow with us. And people with mental retardation should no longer be subject to the death penalty.

TERENCE SMITH: Michael Rushford, what do you expect to be the practical consequences of this both for states that don’t have these laws on the books right now and for inmates who may be on death row? There are some 3700 people.

MICHAEL DENNIS RUSHFORD: Well, no inmate that is on death row who has access to a telephone can be blamed for not now filing a claim and bringing in a psychiatrist and faking a low score on an IQ Test, which is what the defendant in this case did, Daryl Atkins, in order to get the claim into the courts and litigated and it will add time to every defendant’s appeals now so that they can litigate this brand new claim, this brand new constitutional right.

TERENCE SMITH: And so you anticipate a floodgate of these appeals?

MICHAEL DENNIS RUSHFORD: Again, there seems to be no reason why any convicted murderer on death row would not want to file one of these claims, and the court has indicated that there is no real prohibition against that. And so I would think that every one of them will file a claim.


DIANN RUST-TIERNEY: That’s just not true. First of all mental retardation is a discreet disability that we have a lot of scientific evidence and understanding about so that everybody can’t just file something that says I’m mentally retarded. Every state that has a prohibition against executing people with mental retardation has very clear standards including the standard that says you have to have some indication that this disability existed before you were 18.

So the notion that people are going to be filing these complaints, that’s just, you know, it’s a very colorful parade of horribles, but it’s just not going to happen. The fact is the states that have this prohibition have a lot of experience with it. Judges have a lot of experience with it. Medical experts have a lot of experience with it. So it’s going to be something that’s very, very manageable for the states.

TERENCE SMITH: And what about this forecast of a floodgate of appeals? No, you don’t see it.

DIANN RUST-TIERNEY: I don’t see that. I think that there are people on death Row who have mental retardation who because they didn’t have good lawyers have evidence that may be lost.

There may be people who shouldn’t be subject to the death penalty who may still be executed nevertheless just because all the other problems with the death penalty haven’t been solved, counsel, race discrimination and some of these other issues, but the notion that somehow people who don’t deserve this are going to be taking advantage of it just isn’t true and isn’t consistent with how our death penalty works.

TERENCE SMITH: Michael Rushford, do you see this as an evolving position in the court on the death penalty at large? In other words, is it more than this particular instance of mental retardation?

MICHAEL DENNIS RUSHFORD: Well, I think that any time you have jurisprudence by polling you’re going to have trouble determining what is the guideline that guides the court into announcing what constitutional rights there are.

And I would just like to add that Daryl Atkins’ case, this case that was before the court, is a perfect example of how these claims are brought about. The only evidence of Atkins’ retardation was one interview with a psychiatrist and one low score on an IQ test. And the reason he made this claim and other defendants we’ve seen in other cases make this claim is because the evidence is overwhelming and they have nowhere else to go.

The jury absolutely did not buy that claim — 24 people because he was re-sentenced – he had two sentencing hearings — did not buy the claim. And I think that’s where the decision has to be made — by the juries that actually see the evidence — not some national standard that limits what the juries can do and just assumes that anybody with a low IQ is incapable of knowing what they’re doing.

TERENCE SMITH: Diann Rust-Tierney.

DIANN RUST-TIERNEY: The court struck the proper balance in this case. On the one hand the court has to interpret the Constitution as it evolves, and it did that. But it also put the ball right back in the courts of the states, right back in the state legislatures, to do what needed to be done to interpret this case. I mean, one of the reasons-

TERENCE SMITH: What about in fact that 20 states that currently don’t have any law banning this? What do they do?

DIANN RUST-TIERNEY: They’re going to need to go back and they’re going to need to pass legislation that prohibits people from being executed who have this condition and define it. And they’ve got a lot of information, a lot of, big track record out there that they can rely on.

One point that the court relied upon, which is very, very important, that is, because of this disability, people with mental retardation are much more likely to be sentenced to death wrongfully than others. In fact, out of this very state, Virginia, there was a man by the name of Earl Washington who was on death row, who was mentally retarded, and he was not guilty. He was absolutely innocent but because of his disability, he couldn’t help his lawyers. And he in fact even confessed to the crime.

So the court did the right thing in this case. If we’re going to have the death penalty, it’s got to be reserved for the folks who are the most culpable. We have got to make sure we have the right people. This population just doesn’t fit that mold.

TERENCE SMITH: Michael Rushford you called it jurisprudence by polling. And yet the court actually pointed to legislation and to the actions of the state legislators in numerous states. Is that polling?

MICHAEL DENNIS RUSHFORD: Well, when you have a minority of the states that have a death penalty taking this action, it does indicate that we’re not talking about a consensus here, and again the court isn’t supposed to be a political organization. It’s supposed to follow the Constitution. It isn’t supposed to try and read the direction of the wind and then rule accordingly. And that’s where we are on this.

If the Constitution is constantly evolving, then who knows where it’s going to evolve next? We have to have rules, especially in our legal system that lawyers and prosecutors and defense attorneys can depend upon. And evolution doesn’t give you that kind of stability. And that’s what we’re looking for from the Supreme Court.

TERENCE SMITH: Okay. A very brief final word.

DIANN RUST-TIERNEY: I just think that the controversial idea here is that we can’t have a Constitution that grows with our understanding of public views on issues, and the court did absolutely the right thing here. People with mental retardation should not be subject to the death penalty and it’s part of a larger problem we have.

TERENCE SMITH: Okay. Diann Rust-Tierney and Michael Rushford, thank you both very much.