In a move that could mark a milestone in US litigation over the death penalty the Supreme Court has agreed to hear the case against the execution of a mentally retarded man.
About 10 per cent of the 3,600 inmates of death row are said to have an IQ of less than 70 and are deemed mentally retarded.
The court has also decided to consider a case which may have a dramatic effect on the scope of affirmative action programmes designed to counter the effects of racial bias in the workplace.
The death penalty case will be an important revisiting of the Eighth Amendment's prohibition on "cruel and unusual punishment" by a court which has a majority favouring the death penalty.
But considerable campaigns have been mounted against what are seen even by supporters as serious deficiencies in the system, most notably the difficulty in bringing forward exculpatory evidence from recent DNA testing advances and the execution of the mentally deficient.
When it last considered the latter issue 12 years ago the Supreme Court applied a public opinion test to its decision, ruling 5-4, in the words of Justice Sandra Day O'Connor, that "there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offences for us to conclude that it is categorically prohibited under the Eighth Amendment."
At that stage only two of the states which allowed the death penalty, Georgia and Maryland, specifically barred it for the mentally handicapped.
Today, however, 11 others do so, and others are considering similar legislation.
If states banning the death penalty are included in the count, half the states are now against the execution of the mentally handicapped.
Lawyers for the appellant, Ernest McCarver, say they believe they can demonstrate a clear change in that consensus.
In his trial the jury found that McCarver had a mental age of 10 or 12 but that evidence of premeditation outweighed that and other mitigating evidence. In the affirmative action case the court will consider the case of a road-building contractor, Adarand, which lost a contract to a company that employed a large proportion of minority workers in part because the state gave the general contractor a bonus for hiring minorities.
The case may be significant because the court is being asked to consider whether such affirmative action programmes must be limited to cases where the government is seeking to redress its own discriminatory practices and not general economic disadvantage. Such a finding would radically curtail affirmative action.
