On June 1, in the case of Bobby v. Bies, the U.S. Supreme Court unan­i­mous­ly ruled that Michael Bies had to bring his claim of men­tal retar­da­tion before a sep­a­rate state hear­ing, there­by revers­ing the low­er fed­er­al courts that held such a hear­ing would con­sti­tute dou­ble jeop­ardy. The Court held that Ohio could con­test Bies’ asser­tion that he is men­tal­ly retard­ed and that this does not sub­ject Bies to dou­ble jeop­ardy, despite the fact that the Ohio Supreme Court in 1996 had rec­og­nized his men­tal retar­da­tion as a mit­i­gat­ing fac­tor in uphold­ing his orig­i­nal death sen­tence. The Court made clear that it intend­ed the states to have the pri­ma­ry respon­si­bil­i­ty for imple­ment­ing Atkins. (In 2002, the United States Supreme Court held in Atkins v. Virginia that the Eighth Amendment to the Constitution bars exe­cu­tion of men­tal­ly retard­ed offend­ers.). Justice Ginsburg wrote the opin­ion in Bies.

In 1992, an Ohio jury found Michael Bies guilty of the kid­nap­ping, attempt­ed rape, and mur­der of a ten-year-old. In sen­tenc­ing Bies to death, one of the mit­i­gat­ing cir­cum­stances con­sid­ered by the jury was that he was men­tal­ly retard­ed. Bies appealed both his con­vic­tion and his death sen­tence. Twice the high­er courts in Ohio affirmed both his con­vic­tion and his death sen­tence, but sided with him on the ques­tion of his men­tal retar­da­tion being a mit­i­gat­ing fac­tor.

In 2003, Bies sought post-con­vic­tion relief in Ohio state court, this time claim­ing that he could not be exe­cut­ed under Atkins, and that the state gov­ern­ment was pre­vent­ed from con­test­ing the fact of his men­tal retar­da­tion as this fact had already been deter­mined by the two pri­or state court pro­ceed­ings. Before a full pan­el could hear this case, he appealed to the United States Court of Appeals for the Sixth Circuit. This court, in 2008 vacat­ed his sen­tence of death and ordered that he be resen­tenced to a sen­tence oth­er than death because Ohio could not reopen the issue of his men­tal retar­da­tion as this sub­ject­ed him to dou­ble jeop­ardy.

Bies will now get a hear­ing in the state court to deter­mine if he fits the Atkins cri­te­ria. In decid­ing whether Bies is men­tal­ly retard­ed, Ohio will use the fol­low­ing cri­te­ria set out by Ohio’s Supreme Court: a def­i­n­i­tion of men­tal retar­da­tion requires: “(1) sig­nif­i­cant­ly sub­av­er­age intel­lec­tu­al func­tion­ing, (2) sig­nif­i­cant lim­i­ta­tions in two or more adap­tive skills, such as com­mu­ni­ca­tion, self-care, and self-direc­tion, and (3) onset before the age of 18.” (State v. Lott, 2002). If Bies is found to be men­tal­ly retard­ed, he can­not receive a death sen­tence.

See Bobby, Warden v. Bies, No. 08 – 598 U. S. (June 1, 2009). (A. Liptak, ​“Court Grants Hearing on Inmate’s Retardation,” New York Times, June 2, 2009). See Mental Retardation and U.S. Supreme Court.

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