Sparing the retarded
As a matter of simple, moral justice, most Americans will welcome their Supreme Court's decision to prohibit death sentences for killers who are mentally retarded. If it is cruel and unusual to execute a child, it is no different when the prisoner is an adult with the mind of a child. In a world where most developed nations execute no one and only two other countries put retarded people to death, the United States now stands taller than it did before the court's 6-to-3 decision in Atkins vs. Virginia.
As it had done in many earlier cases, the majority held that a punishment becomes cruel and unusual, within the meaning of the Constitution, when it becomes clear that society thinks so. Thirteen years ago, the court ruled against the retarded because only two of the 38 death-penalty states had exempted them. Since then, 16 more states and the federal government have done so. Thus the laws of a solid majority of 30 states either condemn no one or at least spare the retarded.
As Justice John Paul Stevens wrote for the court, such a trend, amid the general popularity of anticrime legislation, "is powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal."
Florida contributed to the new consensus last year when the Legislature voted, by 40-0 in the Senate and 110-1 in the House, to spare newly accused retarded people from the death penalty. Much credit belongs to Gov. Jeb Bush, who intervened when it appeared the bill might die on the House calendar; to its many sponsors in the Legislature; and especially to the Association for Retarded Citizens and the Florida Catholic Conference, which lobbied tirelessly through several discouraging earlier sessions. In a compromise with the prosecutors' lobby, the final version excluded prisoners on death row, but Florida clearly will have to revisit that to comply with the Atkins decision. It is to be hoped and expected that the state will respond in good faith.
The six justices in the majority included two, Sandra Day O'Connor and Anthony Kennedy, who had voted differently in 1989. O'Connor wrote that opinion, which the court acknowledged last week as one of the reasons why "state legislatures across the country began to address the issue."
Thursday's reversal was also notable, unfortunately, for spitefully worded dissents by Chief Justice William Rehnquist and Justice Antonin Scalia. In 1989, they were perfectly willing to rely on the perceived lack of a national consensus against execution of the retarded. Last week, however, they took rhetorical flight to try to disparage what Scalia called the "embarrassingly feeble" evidence of a new and different consensus. He went on to accuse the majority of attempting "incremental abolition" of the death penalty.
Scalia's dissent was so caustic, even by his normal standards of intellectual arrogance, as to suggest the development of a fundamental rift over the death penalty that would have consequences far beyond the fate of a relatively few mentally retarded prisoners. In an Arizona case still awaiting decision, the court is debating whether it is constitutional for a judge rather than a jury to decide whether the facts of a case warrant a death sentence. As many as 800 inmates, including many in Florida, could be affected by the outcome.
In Atkins, Stevens asserted that retarded defendants are not only more likely than others to make false confessions, but also have a "lesser ability . . . to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors." In a footnote to this, Stevens went on to say:
"Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit."
This may turn out to have been only an argument in passing. Is it possible, however, that Scalia's petulance augers a forthcoming split decision of even greater consequence?
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