Washington, Feb. 15--In the most significant capital punishment case pending before the U.S. Supreme Court, justices will hear arguments Wednesday on whether the execution of mentally retarded inmates violates a constitutional ban on cruel and unusual punishment.

The high court last visited the issue in 1989, ruling in a 5-4 decision that such executions may be allowed. At the time, when only two states and the federal government banned the practice, Justice Sandra Day O'Connor said there was no "national consensus" on the issue. In Atkins vs. Virginia, the nine justices will hear the case of Daryl "James" Atkins, who was sentenced to death for the murder of an airman in 1996. Atkins, who was 18 at the time, and an accomplice killed Eric Nesbitt after robbing him because they needed money for beer.

Atkins' lawyers contend his IQ is 59--well below the standard of 70 often used to determine mental retardation--and should not be executed. Virginia lawyers contest his IQ, and argue that mental retardation should only be a mitigating factor considered by juries during sentencing.

Eleven religious groups, led by the U.S. Conference of Catholic Bishops, have told the court that it is morally unacceptable to execute those who have little or no understanding of their crime. "'Cruel or unusual' is not static, but has to reflect the evolving standards of decency that mark any civilized society," said Mark Chopko, general counsel for the bishops' conference. "As religious leaders, we think we have something to say on that."

The bishops' brief was joined by other briefs submitted by mental health organizations, the European Union, diplomatic groups and psychological associations, which all argued against the practice.

Originally, the court agreed to hear the case of a mentally retarded North Carolina man to decide the issue. But when that state passed a law that prohibited the execution of the mentally retarded, that case was rendered moot and was replaced by the Atkins case. Since the court last visited the issue, 18 states and the federal government now ban the practice, and similar bills are on the table in several other states. Earlier this month, lawmakers in Atkins' own state of Virginia moved to ban the practice, but the issue is on hold pending the high court's ruling.

In briefs submitted to the court, Virginia Attorney General Rudolph Beales argues the patchwork of state laws does not represent any kind of national consensus because of different standards and definitions. What's more, Beales said such executions are not "cruel and unusual" but in fact serve a purpose. "Society's legitimate interests in deterrence and retribution are served by the execution of mentally retarded offenders who have the ability to plan and carry out a capital murder, and such executions do not contravene the 'evolving standards of decency,'" he wrote.

In addition, five death penalty states--Alabama, Mississippi, Nevada, South Carolina and Utah -- told the court in a joint brief that it is "not in the best position to take the pulse of American society" on the issue.

Chopko said justices who rebuffed religious arguments in 1989, preferring instead to let the issue be decided in state legislatures, can no longer ignore the trend. "Even the legislatures that traditionally have been opposed to granting any relief on the death penalty have identified the execution of the mentally retarded as something which is particularly troubling," he said.

Polls show that general discomfort with the death penalty is increasing. Gallup polls show support for the death penalty is down from a high of 80 percent in 1994 to 68 percent last year. Human Rights Watch, an international group opposed to the death penalty, estimates that 35 mentally retarded inmates have been executed since the court reinstated the death penalty in 1976. The Washington-based Death Penalty Information Center estimates that several hundred death row inmates could be considered mentally retarded.

Richard Dieter, the group's executive director, said a victory in this case could provide leverage in the larger fight against capital punishment. "Overall, there's a discomfort about the death penalty, so people are looking for ways to reform it or restrict it," he said.

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