RETARDATION V. RETARDATION - SCOTUS SPEAKS

There are two things about Michael Bies you need to know.

• He's been found to have mild to borderline mental retardation.
• He's on death row in Ohio.

There are two things about the law you need to know.

• The Constitution used to allow the execution of people who have mental retardation.
• The Constitution no longer allows the execution of people who have mental retardation.

Michael Bies sits on death row in Ohio. He was found guilty by a jury of the aggravated murder, attempted rape, and kidnapping of Aaron Raines in 1992. He was sentenced to death because the jury found, and the judge agreed, that the various statutory death specifications of which he was also found guilty outweighed beyond a reasonable doubt mitigating factors he proved.

One of those mitigating factors proved by Bies was that he has borderline to mild mental retardation. Both the court of appeals and then the Ohio Supreme Court in its opinion agreed that Bies had proved that he had mental retardation and that it was entitled to some weight in mitigation. Both also agreed that the death specifications outweighed mitigation beyon a reasonable doubt and therefore affirmed his death sentence.

In 2002, the United States Supreme Court decided Atkins v. Virginia, holding that execution of a person with mental retardation violated the Eighth Amendment. Since Ohio courts had already determined that Bies had borderline to mild mental retardation, you'd think that might have resolved the matter. He was found to have retardation, he can't be killed.

The state didn't agree. It wanted him to prove, again, that he qualified for the exclusion. Bies figured that he'd already done that and went into federal court and asked that his death sentence be set aside. The district court and then the Sixth Circuit twice (here and here) agreed with him. Yesterday, in Bobby v. Bies, the Supreme Court said the Sixth Circuit was wrong.

In a unanimous opinion by Justice Ginsburg, the Court said the Sixth Circuit got it wrong. According to the Court, Bies has to prove again that he's got retardation because he proved it for a different reason before. Before, you see, he proved it because he thought it should weigh against a death sentence. Now, he has to prove it because it will prevent an execution.

Oh, there's another reason, too. He has to prove it again because it wasn't enough, by itself, the first time, to win the case. Let me explain. If Bies had been sentenced to life - for whatever reason - then it would be conclusively determined for all sentencing purposes between he and the State of Ohio, that he had mental retardation. Becuase he was sentenced to die despite proving that he had mental retardation, the proof from before doesn't count.

If you think either of those explanations makes sense, then you may be qualified for a seat on the Supreme Court. But since you didn't get nominated, your qualifications don't count. Or something.

Maybe we should look at this another way. Maybe the Court was just slapping down the Sixth Circuit. If that's so, then Bies may be nothing more than simple error correction - the Sixth got it wrong (and so they all think) and they decided to fix it. Indeed, that seems to be the prevailing view. But then, why this of all the stupidly decided and obviously wrongheaded capital cases out there? What made it so egregious that the Court had to step in?

Inquiring minds want to know.