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In a dramatic shift for an institution that has repeatedly endorsed capital punishment, the U.S. Supreme Court ruled 6-3 on Thursday that executing the mentally retarded violates the Eighth Amendment’s ban on excessive punishment. Citing a growing national and international consensus against the practice, as well as the Court’s own judgment, Justice John Paul Stevens said the mentally retarded should be “categorically excluded” from capital punishment statutes. “Death is not a suitable punishment for a mentally retarded criminal.” The historic ruling came in Atkins v. Virginia, No. 00-8452, the case of Daryl Atkins, who shot Eric Nesbitt eight times for beer money in 1996 in Hampton, Va. A defense witness placed Atkins’ IQ at 59. Stevens announced his opinion from the bench with unusual fervor, then indicated that Justice Antonin Scalia had a dissent to read. With anger clear in his voice, Scalia described the majority opinion as a “raw assumption of power” that ignored the will of the public and lawmakers in the 20 states that still permit the execution of retarded condemned prisoners. Scalia bitterly predicted that the decision would turn capital trials into a “game” in which defendants will routinely feign retardation. Scalia was joined by Chief Justice William Rehnquist and Justice Clarence Thomas. Death penalty experts say it is impossible to quantify how many of the 3,700 inmates on death row nationwide will be affected by Thursday’s ruling, but laws in 20 states that still allow the practice are invalidated. States may still be able to legislate their own definitions of retardation. “Concerns remain about many other aspects of the death penalty, but at least today we have stopped a practice that most Americans and the rest of world finds abhorrent,” said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, which opposes capital punishment. Steven Hawkins, executive director of the D.C.-based National Coalition to Abolish the Death Penalty, said the decision could energize the effort to abolish the death penalty for juveniles. “The similarity between the execution of mentally retarded people and youthful offenders is that neither class of individuals can be held fully accountable for their actions.” The ruling amounted to a relatively quick reversal of the Supreme Court’s 1989 decision in Penry v. Lynaugh, in which the Court found that no national consensus existed against executing the retarded. “Much has changed since then,” wrote Stevens, noting that capital punishment laws in 16 states and at the federal level have been amended to bar execution of the retarded, adding to the two states that had banned it before Penry. “It is not so much the number of these states that is significant, but the consistency of the direction of change,” said Stevens. Scalia ridiculed Stevens’ trend-spotting as “embarrassingly feeble,” calling it a “47 percent consensus” because 20 of the 38 capital punishment states still allow for executing the retarded. Stevens also asserted that because of their diminished culpability, executing the retarded serves neither of the states’ purposes of capital punishment: retribution or deterrence. They are also less able to assist in their own defense, Stevens said, exposing them to a “special risk of wrongful execution.” In a rare invocation of international standards, Stevens also said in a footnote that the “world community” overwhelmingly disapproves of executing the retarded. Chief Justice Rehnquist wrote a separate dissent taking Stevens to task for invoking foreign laws and international opinion. “I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination,” Rehnquist wrote. The Supreme Court has been criticized internationally for ignoring international judicial opinions and laws in its decision making, especially in the area of human rights. Scalia also weighed in on the subject of international consensus in cataloging the flaws of the Stevens majority. “Equally irrelevant are the practices of the ‘world community’ whose notions of justice are (thankfully) not always those of our people,” said Scalia. The Atkins ruling was the most dramatic on a busy day in which the Court also ruled that: � States may enact patients’ bill of rights and other measures regulating HMO practices without running afoul of the federal Employee Retirement Income Security Act. In Rush Prudential HMO v. Moran, No. 00-1021, the Court ruled 5-4 that the Illinois HMO Act, which imposes a “second opinion” procedure on HMOs, is not pre-empted by ERISA. The ruling is a boost to efforts by states and consumers to rein in HMOs. Forty states have enacted similar laws. Justice David Souter, writing for the majority, determined that the Illinois law is in the nature of an insurance regulation which is permitted under ERISA. Rush and the HMO industry argued that they should be categorized as health care providers, which would have the effect of precluding state regulation because of ERISA pre-emption. “The answer to Rush is, of course, that an HMO is both,” wrote Souter. “It provides health care, and it does so as an insurer.” In dissent, Justice Clarence Thomas said allowing states to legislate in this area is “wholly destructive” of the congressional goal of national uniformity in the regulation of employee benefit plans. “We’re pleased with the decision, but it still leaves a lot of questions unanswered about how far states can go in this area,” said AARP lawyer Mary Ellen Signorille. Because a significant number of states still have no laws like the one in Illinois, pressure will remain on Congress, Signorille says, to enact a federal patients’ bill of rights, which the AARP advocates. � The Census Bureau may use “imputation” methods to compensate for inadequate census information about individual properties. In Utah v. Evans, No. 01-714, Utah claimed that use of imputation improperly gave North Carolina an additional congressional seat in the apportionment after the 2000 census, a seat that should have gone to Utah. The 5-4 ruling means the congressional seat stays with North Carolina. Justice Stephen Breyer said in the majority opinion that imputation does not violate either the Constitution or federal law, and that it is different from sampling, which is prohibited. Justices Sandra Day O’Connor, Anthony Kennedy, Thomas and Scalia dissented in whole or in part, asserting that the method violated the Constitution or federal statutes. � Federal law does not give individuals the right to sue universities for releasing personal information about them. In Gonzaga University v. Doe, No. 01-679, a student sued the Spokane, Wash., university for releasing negative information about him to a prospective employer. He invoked the Federal Educational Records and Privacy Act, which bars the release of personal student information in institutions receiving federal funds. In a 7-2 ruling written by Rehnquist, the Court said that legislation like the federal act at issue does not create an individual right to sue for violations. He said the law gives enforcement powers to the Department of Education. Stevens, joined by Ginsburg, dissented, claiming the law did create a right that can be enforced by individual � 1983 lawsuits.

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