Executing the Mentally Retarded: the Death of Logic (6/21/02)

By Dean Hartwell

A majority of the Supreme Court justices, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas and William Rehnquist, got their appointments from Reagan and his Vice-President and successor, George H. W. Bush. With the exception of Souter, this group has voted the same way in many high-profile cases, most notably the Bush v. Gore case that put George W. Bush in the White House.

During the campaign, candidate George W. Bush said that he would appoint more justices like “Scalia and Thomas” and said that he wanted ones who could apply “strict construction of the Constitution.” A recent case, Atkins v. Virginia, shows us what that means:

Daryl Atkins robbed and killed another man. For his crime, a jury sentenced him to death despite a defense expert witness’ testimony that Atkins was mentally retarded. On appeal, Atkins’ lawyers renewed this argument, which the Virginia Supreme Court rejected based upon a United States Supreme Court decision, Penry v. Lynaugh. That 1989 decision upheld the constitutionality of executing the mentally retarded.

This time, the Supreme Court voted 6-3 to abolish the death penalty for the mentally retarded as a violation of the Constitution’s Eighth Amendment, which forbids “cruel and unusual punishment.” Justice Stevens, in writing for the majority, stated that “the [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

He pointed out that thirteen states (including the District of Columbia) have abolished capital punishment and eighteen with the death penalty have passed legislation forbidding its use on the retarded. Very few states have put to death a retarded individual in recent years.

What did Scalia and Thomas have to say about the case?

Thomas joined a dissent written by Scalia, who said that the majority used “nothing but its personal views” to make the decision. He insisted that the standards of the United States at the time the Bill of Rights was written (1791) were valid in assessing the Eighth Amendment. Under his theory, only people with an IQ of 25 (profound or severe retardation) or less would be exempt from execution.

Scalia also manipulates Stevens’ numbers to argue against the idea that our society has a national consensus on this topic. He ignores the states that have abolished the death penalty and says that “18 States, less than half (47%) of the 38 States that permit capital punishment…have …enacted legislation barring execution of the mentally retarded.”

Lastly, Scalia fears that defendants will pretend to be retarded to avoid execution. He states that “…the symptoms of this condition can readily be feigned.” What is the worst thing that can happen? A defendant somehow fools the prosecution, his/her own lawyers, the judge and twelve members of a jury and goes to prison for life.

Consider the Scalia alternative: the death of the truly mentally handicapped and the death of logic itself.

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