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Friday | June 21, 2002

Significance of Atkins v. Virginia

The Supreme Court's historic 6-3 decision prohibiting the execution of mentally retarded murderers may well signal the beginning of the end of the death penalty. With Justice Sandra Day O’Connor now firmly in the anti-capital punishment camp (a 180-degree position shift), Atkins v. Virginia continues the present day, nationwide, multi-front assault against the death penalty.

The court’s far-right Conservatives are livid, not because mentally disabled individuals can now avoid the death penalty, but because they fear for the very existence of capital punishment. This fear runs so deep that the dissenters did away with the formality of writing “I respectfully dissent”, opting instead for the terse “I dissent”. In the pedantic world of Supreme Court jurisprudence, this is the equivalent of “up yours!”

So what exactly is this decision all about?

The central tent of this decision is the 8th Amendment, which bars “cruel and unusual punishment”. According to Supreme Court precedent, “[Cruel and unusual punishments are] modes of punishment that are inconsistent with modern standards of decency, as evinced by objective indicia, the most important of which is legislation enacted by the country’s legislatures.”

Chief Justice William Rehnquist makes much hay of this, reminding us that legislation is the "clearest and most reliable objective evidence of contemporary values." Fair enough.

The majority looks at the states, and declares that there’s a national consensus against executing the mentally retarded. This sets off the court’s right wing, which can’t believe the majority is so blinded by bias. Or as Justice Antonin Scalia writes, “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.”

In his dissent, Rehnquist writes:

The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries...
Scalia writes:
That bare number of States alone–18–should be enough to convince any reasonable person that no “national consensus” exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to “consensus”?
What the dissent so disingenuously ignores is that in addition to the 18 states mentioned above, 13 other states bar the execution of the mentally disabled -- those that bar capital punishment altogether. Clearly, the sentiments of those 13 states have to be considered in any analysis of a “national consensus”. That means that 31 of the country’s 50 states prohibit the execution of the mentally retarded. Not quite the 18/19 (47 percent) split the dissent evokes.

But wait, there's more! When the federal death penalty was reinstated in 1988, Congress (which arguably is the clearest arbiter of national standards of decency) specifically exempted mentally retarded defendants. To be exact: "[A] sentence of death shall not be carried out upon a person who is mentally retarded." And when Congress expanded the scope of the death penalty in 1994, it once again specifically exempted the mentally retarded (and that was in the no-holds-barred years of Newt Gingrich's Contract With America).

Neither dissent mentions the federal laws. Nor the fact that two capital punishment states (New Jersey and New Hampshire) haven't bothered to use it in decades. Nor that Illinois has issued a moratorium on all executions.

Thus, we have 31 states AND the United States all exempting the execution of the mentally retarded, plus three states that ignore their capital punishment powers. That provides ample legal support for the majority’s contention that there is a national consensus against executing the mentally retarded.

So, perhaps sensing that dissenting on these grounds was weak, both dissenters then spend considerable efforts attacking an obscure footnote at the back of the majority opinion, which states:

Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender … In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” … Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved … Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong … Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue.
This footnote is buried toward the end of the majority opinion, but to hear the dissent, the bulk of the majority’s opinion is predicated on this footnote. Rehnquist blasts any mention of international opinion: “I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination.” Rehnquist is equally disdainful on polls, demanding the majority analyze each poll for scientific and statistical validity.

Yet even he has to admit that the majority opinion is NOT based on those polls, or international opinion, or religious consensus. So why spend time attacking a minor footnote? Because that footnote is subversive, taking judicial notice of the increasing forces arrayed against the death penalty – from churches, to the public, and even to (gasp!) international opinion. That footnote gives aid and comfort to the opponents of capital punishment, and sets the stage for the next battle in this war.

The fight ahead is still long and hard. But a 6-3 Supreme Court decision is nothing short of a rout, and the legal foundation has been set for future victories, notwithstanding the hysterical shrieks from the dissent.

Posted June 21, 2002 12:36 PM | Comments (4)


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