Court Rules Unanimously On Execution Of Mentally Retarded

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Published on Monday, 01 June 2009

Written by Adam Liptak, NY Times

Elaborating on its 2002 decision banning the execution of the mentally retarded, the Supreme Court unanimously ruled on Monday that prosecutors in Ohio should have a new opportunity to prove that a death row inmate there was not retarded and thus was eligible to be executed. The prosecutors were not bound, the court said, by statements in court decisions issued before 2002 saying that he was retarded.

The inmate, Michael Bies, was convicted in 1992 of kidnapping and murdering a 10-year-old boy. At the time, mental retardation was a factor that juries could consider in deciding on the proper sentence.

During the sentencing hearing in Mr. Bies' case, the jury heard testimony from a psychiatrist who said Mr. Bies was "mildly mentally retarded to borderline mentally retarded." The psychiatrist said that Mr. Bies' I.Q. was in the "65 to 75 range" and that he "carries out the activities of daily life fairly independently."

The jury recommended a death sentence without indicating what role the evidence about retardation had played in its decision, and the trial judge accepted that recommendation.

In affirming Mr. Bies' conviction and sentence, state courts in Ohio said he suffered "mild to borderline mental retardation" that warranted some weight in determining the proper sentence. But they found that other factors were more important and justified a death sentence.

When the Supreme Court banned the execution of retarded offenders in Atkins v. Virginia in 2002, it did not specify how states were to determine retardation. The Ohio Supreme Court later ruled that defendants claiming retardation must prove three things: "significantly sub-average intellectual functioning," which would be presumed if the defendant's I.Q. was under 70; a lack of two or more fundamental social and practical skills; and that both conditions were present before age 18.

Last year, a unanimous panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, said prosecutors had "litigated and lost the issue of petitioner's mental retardation" and could not reopen the question. The court ordered that Mr. Bies be "resentenced to receive a sentence other than death."

But Justice Ruth Bader Ginsburg, writing for the Supreme Court in the case, Bobby v. Bies, No. 08-598, said the state courts had not "devoted detailed attention to the issue of mental retardation."

"No court found, for instance," Justice Ginsburg wrote, "that Bies suffered 'significant limitation in two or more adaptive skills.' "

Mr. Bies' lawyers argued that requiring a new hearing on the question of retardation would subject their client to a form of double jeopardy. Justice Ginsburg said double-jeopardy protection was unavailable to Mr. Bies because he had not prevailed at his trial and because the court determinations concerning retardation were not necessary to the outcomes in the earlier proceedings.

The lower federal courts should have allowed the state court to go forward with a hearing on whether Mr. Bies was indeed retarded, Justice Ginsburg concluded. "Recourse first to Ohio's courts is just what this court envisioned," she wrote, "in remitting to the states responsibility for implementing the Atkins decision."

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