SUPREME COURT WATCH

	June 20, 2002
	Ray Suarez looks at the latest Supreme Court decisions with Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune. Follow-up Discussion

RAY SUAREZ: First, the high court's 6-3 ruling that execution of the mentally retarded is unconstitutional. NewsHour regular Jan Crawford Greenburg of the Chicago Tribune is here to walk us through the particulars. Well, first off, how did the vote go? JAN CRAWFORD GREENBURG: Well, the vote today was 6-3, but the court was bitterly, bitterly divided. Justice John Paul Stevens wrote for the majority. And Justice Scalia wrote a very passioned and harsh dissent, portions of which he read aloud from the bench this morning for about ten minutes. RAY SUAREZ: Is that unusual? JAN CRAWFORD GREENBURG: It is unusual. It happens generally this time of year when the court is handing down its most controversial and contentious decisions but it was quite dramatic today because Justice Scalia, as I said, at times almost in harsh tones mocked the majority for what he said miraculously finding a national consensus, that was the ruling today, that there was a national consensus, against executing mentally retarded criminals. RAY SUAREZ: Now, this isn't the first time the court has visited this particular question on the execution of the handicapped, is it? JAN CRAWFORD GREENBURG: No, in 1989 it ruled that mentally retarded criminals could be executed by the government. In that case, it ruled that there was not a national consensus on the issue. Now that's important because at issue is the eighth Amendment, which prohibits excessive punishments, punishments that are cruel and unusual. And to decide if a punishment is excessive or cruel and unusual, the court looks to evolving standards of decency. That's how it determines the meaning of the eighth Amendment. RAY SUAREZ: By evolving standards of decency, what? Just looking at national sentiment, what common people are thinking about capital punishment? JAN CRAWFORD GREENBURG: It looks specifically to objective evidence and to the state legislatures first. In the years since 1989 when it ruled on the issue, two states then prohibited executing mentally retarded criminals. In the years since, the 13 years since, 14 more states have passed laws bringing the total to 16, plus the federal government. So the 38 death penalty states the court concluded in the years since then, we've had a consensus. Actually now it's 18 states. I'm sorry. RAY SUAREZ: Now does this ruling in any way chip away at the Supreme Court's own thinking about whether capital punishment itself is in balance? JAN CRAWFORD GREENBURG: Today the court was limited, the ruling was limited to the issue of mentally retarded criminals. But obviously it comes at a time amid growing national debate on the fairness of the death penalty, charges there's bias in the system. And, of course, the court already has heard several death penalty cases this term involving effectiveness of counsel. We're waiting on an opinion that will come down next week on a capital sentencing scheme in Arizona. So this is obviously a very heated issue nationally and it certainly is at the high court. RAY SUAREZ: Is this the first time that there's been a ruling in a while that's gone away from capital punishment? It seems like the tide really has gone the other way, for some time. JAN CRAWFORD GREENBURG: Well, this is... as death penalty opponents are saying today, a landmark ruling, a watershed ruling, and one that for the first time really addressed this issue squarely. And a group of people -- ruled that an entire group of people could not be executed. Because, as the court said today, there was this national consensus and that national consensus was grounded in the fact that the mentally retarded criminals may not be as culpable. The reasons that we may have the death penalty, that may justify the death penalty, issues of retribution, issues of deterrence, wouldn't necessarily come into play in these cases, so the two states that banned the death penalty of the mentally retarded criminals in 1989, coupled with the 16 states that have done so since convinced the court that there were grounds for this national consensus, and the court itself did not disagree. RAY SUAREZ: Now Justice Scalia has spoken publicly outside the chambers of the court about his belief that the death penalty is part of natural law, a moral response to outrageous crimes. What did he say further in his decision? JAN CRAWFORD GREENBURG: He focused solely today on the issues before the court, which again was whether or not there was this national consensus against executing mentally retarded criminals. And as I said, I mean, he essentially mocked the majority for its insistence that there was a national consensus. 47 percent, he said, of the states that have the death penalty, you know, is not a national consensus in this case. So he strongly took issue with the very evidence that the majority was looking to. Now of course the majority also looked to some other things. They looked... they mentioned some opinion polls. The Chief Justice wrote a separate dissent taking issue with the majority's decision to look at some other evidence that society might have come to agreement on this issue. RAY SUAREZ: Jan Crawford Greenburg, thanks. We'll talk to you later. JAN CRAWFORD GREENBURG: Thank you, Ray.