- The Washington Times - Tuesday, June 25, 2002

With the elan of an airbrush artist, the U.S. Supreme Court ordained an end to executing the "mentally retarded" (left inexact) last week in Atkins vs. Virginia. The ruling marked a peak in judicial fiat. Reason was denied even a cameo appearance. The opinion clamors to supplement the Queen of Hearts in "Alice in Wonderland."
Daryl Renard Atkins was convicted of abduction, armed robbery and capital murder, and sentenced to death. His guilt was inarguable. His punishment pivoted in part on a prediction of future dangerousness. His mitigation plea of mild retardation (a full scale IQ of 59), rebutted by a state expert, was unconvincing to the sentencing jury.
In Penry vs. Lynaugh (1989), the court denied that the Eighth Amendment ban on "cruel and unusual punishments" categorically condemned capital punishment for the mentally impaired. The Constitution, however, required consideration of the handicap in mitigation by a jury choosing between life or death. Writing for a 6-3 majority in Atkins, Justice John Paul Stevens boldly abandoned this death penalty geometry for a more au courant configuration regaled by academics and the media elite.
Since the 1958 caper by Chief Justice Earl Warren in Trop vs. Dulles, the Supreme Court has employed a manipulable "evolving standards of decency" benchmark to determine the constitutionality of criminal sanctions. A punishment must be reasonably commensurate with the gravity of the offense and the depravity of the offender. Contemporary objective earmarks of permissible proportionality are ordinarily the laws among the 50 states and the federal government.
But if the Supreme Court in its majestic wisdom believes a state legislature is lagging behind sister states in moral pioneering, then the latter must trim its conscience to fit today's fashions.
Justice Stevens summoned into being evidence of a contemporary consensus renouncing the death penalty for the mentally impaired irrespective of the vileness of the homicides, the practical difficulty of separating the genuine from the contrived, and the prospective dangers of offenders mentally numb to their abominations. He noted that a flurry of 16 states since 1989 (plus two before) have carved death penalty exemptions for the mentally stunted. As first grade arithmetic teaches, however, that left 19 States declining the exemption, (with 12 categorically outlawing capital punishment). Justice Stevens thus deftly swapped his robes for the media pundit to make the majority subservient to the minority on the nation's moral plane.
States that curtail capital punishment count more than their opposites, the chatter-boxing Justice Stevens insisted, because legislative proponents risk a "soft on crime" attack. But that observation is as daft as insisting that the votes of Supreme Court justices to sustain protections for the accused should be double-counted because the natural sympathies of all lie with crime victims, not their perpetrators.
State legislation ameliorating the death penalty, Justice Stevens also underscored, passed by handsome majorities. But he is clueless as to whether the substantial agreement might be explained by routine "logrolling," or indifference because of the infrequency of death for the handicapped, or strong moral qualms. Only in the latter case would the majorities be pertinent to the Eighth Amendment.
Next Justice Stevens pulled a chapter from "Catch 22." By Supreme Court decree, juries are required to weigh mental retardation against the death penalty. That factor alleviates moral culpability and can be overcome only by proof of aggravating factors. Thus, scrupulously following the Supreme Court's instructions, the practice of executing the mentally deficient has become uncommon in death penalty states. Justice Stevens, however, leaped on this constitutionally mandated caution as evidence of a national consensus for elimination. He thus discovers a popular consensus that the court itself has fastened on the nation.
Fuzzy sociological data is the typical refuge of a constitutional scoundrel. Thus, Justice Stevens enlisted as witnesses to his moral enlightenment the views of the U.S. Catholic Conference, Christian, Jewish, Muslim and Buddhist traditions, the European Union and equivocal polling data. But the consensus demanded by the Eight Amendment is American, not international. And if the American people authentically and categorically oppose the death penalty for the mentally retarded, their views will inevitably find expression in all state legislatures. All answer to popular orthodoxies within a reasonable time, and need no Supreme Court jump starts.
Legislators who have resisted the current death penalty vogue legitimately worry about abuses of a mental retardation exemption. A blurry medical line separates the normal from the subnormal, much more so than the line between sanity and insanity. That increases the problem of feigned symptoms by defendants exponentially. A blitz of experts against experts will predictably elongate already lead-footed death penalty cases, confuse juries and thrust appellate courts into a briar patch of psychiatric puzzles. Mental impairment abolitionist states are too recent to know whether these concerns will prove trivial or troublesome, but the uncertainty justifies a "wait and see" attitude by the holdouts.
Isn't constitutional adjudication sufficiently taxing to warn against judicial moonlighting as political pundits or sociologists? Doesn't the Atkins decision dispel all doubts?

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