- The Washington Times - Thursday, June 27, 2002

One can agree (or not) with last week's 6-3 ruling by the Supreme Court that the death penalty should not apply to retarded citizens because it violates the Eighth Amendment's prohibition against "cruel and unusual punishment," and still be troubled by the twisted road the court took to reach its destination.

Reading the history of the Eighth Amendment shows it proceeded from concerns over the methods the state could use to take the life of a convicted criminal not the intelligence level of the criminal.

When the Constitution was adopted, the British penalty for high treason was to have the convicted person "hanged by the neck and then cut down alive, then he was disemboweled while yet living. His head was cut off and his body divided into four parts for disposition by the King." (Thomas James Norton, "The Constitution of the United States," p. 224). Among punishments for other crimes, English law provided for cutting off the ears, flogging, cutting off hands, castrating, standing in the pillory, slitting of the nose and branding on the cheek. Now that was cruel and unusual punishment.

The Supreme Court, in its decision, said persons deemed retarded with an IQ of 70 or less (why not 71?) and judged guilty of a capital crime, cannot be executed. In so ruling, the court majority moved from the intention of the Founders, which was to make execution more humane, to focusing on the status of the guilty, which appears not to have entered the Founders' minds while crafting the Eighth Amendment.

The case on which this judicial overreach was decided involved a Virginia man, Daryl Renard Atkins, who, along with another man, abducted Eric Nesbitt at the point of a semiautomatic handgun, robbed him of the money on his person, and drove Mr. Nesbitt to an ATM machine in his pickup truck, where cameras recorded the withdrawal of additional cash. The men then took Mr. Nesbitt to an isolated location where he was shot eight times and killed. Atkins was judged to have an IQ of 59, though details of the crime seem to indicate he knew what he was doing.

In the majority decision, written by Justice John Paul Stevens, the court cited "public opinion," which it said had shifted since a 1989 case in which the court decided the opposite of last week's ruling. It also cited the views of professional and religious organizations, and even the "world community," which tended to support the opinion of the majority.

Justice Stevens approvingly quoted the late Chief Justice Earl Warren, who said in a 1958 opinion (Trop vs. Dulles): "The [Eighth] amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." If standards of decency "evolve" and are not fixed (or devolve as is the case with decency today), then the Constitution can also "evolve" and come to mean whatever the court wishes it to mean. That is the point made by the dissenters.

Dissenting, Justice Antonin Scalia said: "The views of professional and religious organizations and the result of opinion polls are irrelevant. Equally irrelevant are the practices of the 'world community' whose notions of justice are (thankfully) not always those of our people. We must never forget that it is the Constitution of the United States that we are expounding." Ah, but the court too often forgets that and frequently rules instead on shifting legal sand.

Justice Scalia added: "The arrogance of this assumption of power takes one's breath away." He debunked the majority's reliance upon "consensus" concerning the death penalty, which it decided exists based on the number of states that either prohibit execution of the retarded or prohibit the death penalty outright. Justice Scalia charged the majority with being "cavalier about the evidence of consensus. It is just a game, after all. There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this court."

Not all retarded citizens are alike. Some with an IQ of 70 may be able to discern right from wrong and make moral choices. Others may not. The states should decide. Retarded citizens who do not know right from wrong should be exempted from the death penalty but not given blanket absolution by a Supreme Court, which has relied in this latest of many recent rulings not on the Constitution, but on a preferred outcome. Such "reasoning" will come back to haunt us in situations where the outcome is less desirable.

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