The Supreme Court stepped over quite a few bodies (dead and alive) when it ruled that the "mentally retarded" must be exempt from the death penalty.
First to be trodden were the victims of the petitioner in the case. Daryl Atkins had abducted serviceman Eric Nesbitt from an air base in Virginia, made him withdraw money from an ATM, and then drove him to a remote area, where, despite his pleas, Atkins shot his victim eight times. Atkins had "16 prior felony convictions for robbery, abduction, use of firearm and maiming."
Next to be sidestepped by the High Court were the people of Virginia. A jury sentenced Atkins to die twice due to a technicality. The Court nullified their verdicts.
With his description of the relationship between a jury and the people, Lysander Spooner, the American scholar of liberty, provoked evocative imagery. A jury is akin to the "body of the people." It's the closest thing to a trial by the whole country. Yet in a despotic bit of judicial activism, the Supreme Court disregarded the jury's verdicts and replaced them with a fabricated "national consensus."
Not only does the Court feel that the mentally retarded should never be put to death for murder, but it insists that the nation has rejected capital punishment for the mentally retarded as cruel and unusual, and hence in contravention of the Eighth Amendment to the Constitution. The shifty jurisprudence that has evolved around this amendment seemingly gives the Court latitude to keep the law in line with "evolving standards of decency that mark the progress of a maturing society."
The basis for this manufactured consensus comes from the fact that, of the states that endorse capital punishment, less than half have rejected the death penalty for the mentally retarded.
The fact that the Court has felt the need to harmonize the law across the nation despite many a jury decision to the contrary is constitutional tyranny; The fact that the Court thinks it must take its cues from state legislators rather than from a jury is plain gimpy. Who's more likely to reflect the nation's standards of right and wrong? Certainly not the legislator, for whose members retaining political power is the be-all and end-all.
The realities of majority rule ensure that the legislator is not representative of the people. More often than not, special interest groups carry the day. Trendy penal abolitionists and their pop-sociology ejaculate are more likely to have a hold on the legislators than the common man does. In our case, professional and religious organizations, opinion polls, even the so-called world community were "imposed on Americans through the Constitution."
Wrong on so many points, the Court claims that the death penalty for the mentally retarded doesn't serve the social functions of retribution and deterrence. The Court "conveniently ignored," as Justice Scalia expatiates in his magnificently-scathing dissent, "the third social purpose of the death penalty." Dangerous criminals are supposed to be incapacitated and prevented from ever again victimizing innocent people.
Also utterly retarded is the majority opinion's premise that it's more savage to kill a very stupid murderer than it is a smart one. One can effectively argue that murderers with high IQs are more likely to suffer cruel and unusual punishment due to their high intelligence and acute awareness.
On the one hand, the Court agrees that, despite intellectual shortfalls, the mentally retarded criminal is capable of discerning right from wrong. On the other hand, the justices crow that the mentally retarded are incapable of understanding punishment by execution. So according to this "Dumb Man Walking" thesis, the retarded can readily grasp the burdens of life in prison, but not the nature of an execution!
There's no abiding logic here. This is, very plainly, ad hoc, "death is different jurisprudence." Its aim is to abolish capital punishment by stealth.
The case has already brought petitions from death-row inmates, claiming they are as dumb as stumps too. And why not? The symptoms used to diagnose the condition can be feigned. The tests can easily be rigged downward, especially when the motivation to do poorly on the test is so undeniably strong.
There's another perk in this for progressives: blacks, on average, score consistently lower than whites on IQ and related tests. No amount of hip-hop-infused changes to the tests seem to alter this. White murderers will be less likely, then, than black murderers to be exempt from the death penalty.
For liberals, this decision is a pretty good deal.
© By ILANA MERCER
June 26, 2002