Dozens of Ohio's death row inmates may soon return to court to argue that they should be spared execution because they are mentally retarded.

        The U.S. Supreme Court cleared the way for such arguments Thursday when it declared that executing retarded inmates is “cruel and unusual punishment.”

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Supreme Court rules that mentally retarded can't be executed.

        Death penalty opponents say the ruling could spare as many as one-fourth of the 201 inmates on Ohio's death row. Prison officials, however, say the ruling will change nothing because no one on death row is retarded.

        Ohio's courts will have to decide who is right.

        “We can only assume that we will now see inmates making this claim in court,” said Joe Case, spokesman for Ohio Attorney General Betty Montgomery. “Each case is going to have to be scrutinized to see if it's legitimate or just a ruse to buy more time by the inmate.”

        The case-by-case scrutiny is necessary because the Supreme Court decision did not provide a legal test to determine who is and is not retarded.

        That means inmates claiming retardation will have to appeal their convictions to lower courts, where they can explain to a judge why they think the Supreme Court ruling applies to them.

        If the judge agrees, the sentence would most likely be changed to life in prison.

        “It will fall to the judges to apply (the ruling) and determine how many inmates will be taken off death row,” said Greg Meyers, the chief counsel for death penalty cases at the Ohio Public Defender's Office.

        Mr. Meyers is confident many inmates will succeed. He said retardation could be a factor for about 50 prisoners on Ohio's death row.

        Aside from the numbers, Mr. Meyers said, the Supreme Court decision is significant because the justices recognized for the first time that mentally retarded inmates should be treated differently than other inmates.

        “No matter how bad the deed, we have to take into account the mental state of those who commit the crime,” Mr. Meyers said. “It goes to a fundamental sense of fair play. You don't force mentally retarded people to play by the same rules as the rest of society.”

        But within hours after the Supreme Court's decision Thursday, it became clear that different people define retardation in very different ways.

        The Ohio Department of Rehabilitation and Correction evaluates every inmate entering the prison system. And a spokeswoman said Thursday that no one on death row is retarded.

        “This ruling really doesn't apply to us,” said prison spokeswoman Kerry Chambers.

        Mr. Case said the attorney general is confident none of Ohio's death penalty cases will be thrown out because of the Supreme Court decision.

        He said adequate safeguards already are in place to protect the mentally retarded. The mental competency of an accused killer is considered by judges in every death penalty trial, Mr. Case said.

        Sixteen states, however, have taken additional steps to ensure retarded inmates don't end up on death row. Those states, including Kentucky and Indiana, recently passed laws banning the execution of mentally retarded prisoners.

        The high court majority noted those laws Thursday in its decision, saying the new laws signified a growing national consensus.

        In Kentucky, the law states that anyone with an IQ of 70 or lower is mentally retarded and therefore exempt from the death penalty.

        “The death penalty doesn't serve the purpose of deterrence or punishment if it is not understood by the inmate,” said Rebecca DiLoreto, spokeswoman for the Department of Public Advocacy in Kentucky.
       

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