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June 27, 2002

Pitt legal expert weighs in on 2 recent death penalty rulings

On June 20, the U.S. Supreme Court ruled that the death penalty is unconstitutional for mentally retarded defendants. Four days later, the court ruled that it is unconstitutional for judges, rather than jurors, to make factual determinations that call for the death penalty.

These rulings have huge implications for America's judicial system, yet it is unclear what the decisions will mean for the future of capital punishment itself, a Pitt law professor says.

"The rulings are encouraging for people who are opposed to the death penalty," said Welsh S. White, himself an outspoken opponent of capital punishment. "They are both important cases in their own right. I think the court has changed a little bit in its attitude toward the death penalty, just as the public has changed, but I don't think you should overestimate the significance of these cases with respect to the court's view toward capital punishment."

White, who has been on the Pitt faculty since 1968, has written three books and numerous articles on capital punishment and is quoted as an expert on high-profile cases in publications such as Time magazine and The New York Times.

"I am opposed to the death penalty and have been for many years, so I am naturally very much in favor of the court's decision" against executing the mentally retarded, White said. "I also think that they should have decided it years ago. We are one of the last countries that executed the mentally retarded," the others being Japan and Kyrgyzstan.

Since the 1980s, there has been a strong trend at the state level to abolish the death penalty for the mentally retarded. This "national consensus" was one of the main reasons that the Supreme Court ruled that the death penalty for the mentally retarded was unconstitutional, suggested White.

"I think the court very legitimately looked at indicators of social acceptance," he said. "They [the justices] saw that all these states had said that they were not going to allow the execution of the mentally retarded. They looked at public polls and looked to what other countries do. It seems to me that to be a civilized nation, it's appropriate to look to what other countries do."

Pennsylvania, which was among the states that still executed retarded defendants, must abide by this ruling. However, White said the ruling could spawn litigation in Pennsylvania and elsewhere.

"The court said that they are not going to define what is 'mentally retarded' and leave that in the first instance to the state," White said. "Having an IQ of less than 70 is the main criterion, but then many states say that the defendant has to have something more than that [in order to be deemed mentally retarded]. Some say mental retardation has to be established before the age of 18. So if I got hit in the head and sustained brain damage and my IQ became below 70, I wouldn't qualify."

As important as this case dealing with the mentally retarded is, the Supreme Court's ruling in favor of jurors over judges may have more of an immediate impact because nearly 800 death row inmates were sentenced by judges. The 7-2 ruling greatly affects the nine states in which judges decide who should die. However, the Supreme Court did not make clear whether inmates currently on death row would be covered by the ruling. The justices must determine whether the ruling is retroactive.

"I think it will be retroactive," White said. "I would be very shocked if they were to say that it doesn't apply to cases where the judge actually imposed the death sentence."

The justices' decision last Monday was based directly on another case dealing with the same issue, Apprendi v. New Jersey.

"In a case two years ago called Apprendi, the justices took a new view as to what factual findings have to be made by the jury," White said. "This case, for most of the justices, follows from Apprendi."

The decisions are a step in the right direction, according to White. However, they don't represent a fundamental shift in the Supreme Court's attitude toward the death penalty, he added.

"I don't see [abolishment of the death penalty] coming in the next 5 or 10 years from the Supreme Court," White said. "My guess is that if it happens in the near future it will not be the Supreme Court that does it. I think that there is a trend in the state courts saying that they have to take a closer look at the death penalty, give defendants more safeguards and, in particular, be much more concerned about not convicting the innocent. I could see it happening that a lot of states would say that they could not address this problem of wrongful convictions, and therefore find that what they have to do is abolish the death penalty."

–David Wicclair

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