"I'LL SAVE THAT PIE FOR LATER" :

Supreme Court Bars Executing the Mentally Retarded (THE ASSOCIATED PRESS, 6/21/02)

A divided Supreme Court reversed itself Thursday and ruled that executing the mentally retarded is unconstitutionally cruel.

The most immediate effect of the ruling will be in the 20 states that allowed execution of the retarded up to now. Presumably, dozens or perhaps hundreds of inmates in those states will now argue that they are retarded, and that their sentences should be converted to life in prison. [...]

Justice John Paul Stevens wrote for the majority.

Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.

Though generally supportive of capital punishment, it does seem inhumane to execute someone who is so profoundly stupid as not to be able to comprehend the right or wrong of their own actions. Here though the Court did not limit its decision to those who are incapable of distinguishing, it instead said that retarded people might be more prone to act on impulse and so have some diminished culpability. This reasoning is unconvincing. Even the six justices who so ruled do not apparently say that this diminishment suffices to absolve someone entirely. It's difficult to see why it would be okay to imprison someone for life but not to execute them. If we truly believe them not to be fully culpable, then what is the basis for punishing them at all?

Even worse is the majority's stated belief that these executions should be banned because they are becoming unusual and because there's a developing public consensus against them. This effectively untethers the 8th Amendment provision against "cruel and unusual" punishment from history and from objective judgment and turns it into a kind of free-floating standard that means little more than what 51% of people say in an opinion poll. This essentially cedes a portion of the Bill of Rights to the Gallup Organization and is unworthy of a serious system of justice

There's a flip side to all this too. The mainstreaming of the retarded into society has gone way too far if we're allowing people who we can not hold morally accountable for their actions to roam the streets. For a society to function it is necessary for each citizen to accept responsibility for himself and his actions. If you can't do so, it seems fair to say that you can't be a full citizen with full civil rights. In order to protect such people and ourselves from the dire consequences that may flow from their uninformed actions--for instance, the defendant in this case, Daryl Renard Atkins, had "20 previous felonies on his record" when he committed the murder for which he was sentenced to death--it may well be necessary to incarcerate them in some way, shape, or form--most likely in state-run medical facilities--not as punishment but as a way of supervising them.

UPDATE :
Here are :

The Opinion

Rehnquist's dissent

Scalia's dissent

FURTHER UPDATE :
William Sulik, who actually practices law, has some typically cogent comments on the Court's ruling.

FURTHER UPDATE :
Personal Problems : The Supremes ignore the Constitution in Atkins. (Richard W. Garnett, June 20, 2002, National Review)

I oppose the death penalty. To be clear, I accept the idea that the death penalty can serve as a deterrent; I am convinced that retribution is the justification and proper purpose of punishment; and I continue to believe in the reality and facticity of evil. Nevertheless, I have come to believe that the abolition of the death penalty could be an important step in building what Pope John Paul II has called a "Culture of Life," and that opposition to capital punishment can serve as a powerful witness to the transcendent dignity of the human person.

All that said, as a lawyer, law teacher, and citizen, I can only shake my head at Atkins v. Virginia, today's Supreme Court's decision outlawing the execution of persons with severe developmental disabilities. The Court's holding — an abrupt about-face from its 1989 Penry decision — means that even when such a person has been found competent to stand trial, convicted of capital murder (i.e., found beyond a reasonable doubt to have caused another's death with a culpable state of mind), and condemned to death by a sentencer who was given a fair opportunity to consider the moral relevance of the killer's disabilities — even then, the "standards of decency" currently embraced by a slim majority of Supreme Court Justices trumps the judgments of legislators, prosecutors, jurors, and voters.

Now again, I like this result. It strikes me as humane, if not democratic. I would vote for it as a legislator and campaign for it as an activist. But I also live under a Constitution.

The real majesty of conservatism lies precisely here, in the recognition that a political result may be desirable to you personally yet may still be contrary to the Constitution that we all agreed to live under and that this result is, therefore, forbidden until the Constitution is changed by democratic processes. It's early innings, but one has to be struck by the way that conservatives who would tend to favor an end to executions of at least the retarded are aggressively criticizing the decision that reaches that result. This is how a serious political philosophy functions : nobly.

Posted by Orrin Judd at June 20, 2002 3:58 PM