On June 20, 2002, the United States Supreme Court released an opinion holding (6-3) that the death penalty is unconstitutional when applied to the mentally retarded. See Atkins v. Virginia, 536 U.S. __ (2002).

History behind Atkins v. Virginia

The Court’s opinion refers to the “Bloody Assizes”. The "Bloody Assizes" were trials for treason in 1685, following the failure of a rebellion lead by James Scott, the Duke of Monmouth. Lord Chief Justice Jeffreys presided over the assizes (trials held outside of London). Jeffreys extorted money from the leaders of the rebellion, but only the richest could buy clemency. Of 1,400 prisoners brought before him, 300 were hanged and 800 more were sold as slaves in the colonies. The severity of the sentences helped to mobilize support for William and Mary and their “Glorious Revolution” of 1688, and the adoption of English Bill of Rights of 1689.

Virginia's “Declaration of Rights” (1776), item 9, drew verbatim from the English Bill of Rights: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This became the Eighth Amendment to the Constitution of the United States of America.

When the American Bill of Rights was adopted in 1791, capital punishment was not considered cruel and unusual punishment for murder. In 1972, however, the United States Supreme Court first held that a death sentence could constitute “cruel and unusual punishment”, at least as applied in the cases before the Court (one was a murder in the course of a robbery and two were rape cases). Fruman v. Georgia, 408 U.S. 238 (1972). However, a majority of the Court did not believe that the Eighth Amendment categorical forbid the death penalty, and in Gregg v. Georgia, 428 U.S. 153 (1976), the Court decided that in some circumstances the death penalty might be constitutional.

The Issue: Whether Executing Mentally Retarded Convicts Violates the Eighth Amendment

The Court first confronted the issue of executing the mentally retarded in Penry v. Lynaugh, 492 U. S. 302 (1989). In Penry, the Court refused to find that executing the mentally retarded violated the Eighth Amendment. Since Penry, however, sixteen states have abolished the death penalty for the mentally retarded. This was sufficient to get the moderate judges to change their minds on the subject and reverse Penry.

The majority also gave a legal rationale for its decision. Gregg v. Georgia, 428 U. S.153, 183 (1976), identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. The Court now reasons that only the truly evil deserve the death penalty, and in criminal law, we measure the “culpability” of a criminal by evidence of an evil state of mind, for example, evidence that the crime was premeditated, rather than a mistake or impulsive act. The Court cited evidence that the mentally retarded often act impulsively rather than thinking or planning. The Court thus seems to imply that Mr. Atkins made a mistake or acted impulsively when he shot his victim, an argument that Justice Scalia ridicules by describing the crime as shooting the victim “one , two three, four, five, six, seven, eight times”. Similarly, for deterrence, the majority questions whether killing the retarded deters them from commiting crimes, and asserts that exempting the mentally retarded will not encourage the rest of us to murder our fellows.

Legal rationales for the death penalty are notoriously implausible. Here the Court was acknowledging public will: despite the fact that it is notoriously hard to muster political opposition to the punishment of criminals, 30 of the 50 states have passed laws either abolishing the execution of the mentally retarded or abolishing capital punishment entirely. This is highly significant in the gun-happy, violence-loving United States.

The Dissenters

Chief Justice Rehnquist (joined by Justices Thomas and Scalia) dissents and objects to a footnote referring to foreign law, opinions of professional and religious organizations, and polls. The Chief Justice argues that the only “objective” sources of information about evolving standards of human decency are the laws passed by legislatures and the decisions of a jury, suggesting that the will of the people of Virginia, and the jurors who considered Mr. Atkins case, should not be second-guessed by the Court. (When the Justices use the term “objective” they mean any criteria other than the Justices’ own opinions.)

Justice Scalia, citing himself, also asserts that the Eighth Amendment only covers “cruel and unusual” punishments (torture, such as thumbscrews and the rack) and not “excessive” punishments. Most of the Court disagrees, as the majority opinion explains:

Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U. S. 660, 666–667 (1962), because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id., at 667.

Justice Scalia distorts the facts shamelessly and with the bravado of a junior prosecutor running for attorney general. Scalia asserts that only 47% of the states, not a consensus, have banned execution of the mentally retarded, but his figure does not include the twelve (12) states that abolished capital punishment entirely. Including the states that have abolished the death penalty, 3/5 of the States have outlawed executing the mentally retarded --a majority if not a “consensus”.

The dissent’s most scathing remarks are reserved for a footnote in the majority opinion which mentions the law in other countries, the opinions of many relgious and professional organizations, and some polls, to support the idea of an emerging consensus against executing the mentally retarded. Justice Scalia notes that one of these organizations mentioned in the footnote is the Conference of Catholic Bishops, and alludes to the Church’s recent public relations problems.

Against the retribution argument, Justice Scalia argues that “culpability” depends on the depravity of the crime as much as the state of mind of the criminal (a notion entirely foreign to Anglo-American criminal law, and thus lacking any citation to authority).

Justice Scalia also argues that killing retarded criminals serves the social goal of “incapacitation”, that is, killing them gets them “off the streets” and ensures they will not kill again. However, incapacitation can be accomplished by alternative punishments, i.e. life without parole, which are not subject to the same risk of irrevocable error. U.S. Constitutional law requires that if the government has alternative means to accomplish its goals without trampling on rights, then it must use those alternatives.

This is one more opinion making capital punishment more difficult, more cumbersome, and less likely to be used, without taking the final step opposed by most Americans: abolishing the death penalty entirely.

Slip opinions are available at the official U.S. Supreme Court site:


Source of historical notes: Fruman v. Georgia, 408 U.S. 238 (1972). (Marshal, concurring)

We should never execute anybody who is retarded - President George W. Bush1
On June 20th, 2002 the United States Supreme Court issued their decision in the case of Atkins v. Virginia. The question in this case was whether it is constitutional to execute the mentally retarded. The court decided, 6-3, that it is unconstitutional.

The court's majority held that executing the mentally retarded is cruel and unusual and therefor violates Amendment VIII of the Constitution. The decision reverses the court's 1989 decision in Penry v. Lynaugh - which allowed the execution of the mentally retarded to continue.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. - Amendment VIII of the U.S. Constitution
The court has historically based determination of cruel and unusual punishment on one of two factors:
a) it was prohibited at the time the constitution was written, or
b) "evolving standards of decency" preclude its further use.
In this instance the court determined that both a national and international consensus has developed opposing the execution of the mentally retarded - rendering it cruel and unusual. Dissenters to the court's decision were Chief Justice William H. Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas - the court's three most conservative members.

Rehnquist, Scalia and - presumably - Thomas (though, as usual, he says nothing himself other than "Dittos, Antonin") have a difficult time remembering there are 50 states in the union. Throughout their arguments you find reference to 18 states that don't allow execution of the mentally retarded and 19 states that do. Apparently the 13 states that don't allow executions at all are irrelevant and never enter their equations.

So, rather than sticking to the fact that 31 of 50 states (62%) forbid executing the mentally retarded, they claim that only 47% do. Or - in an even bigger distortion - we have this from Justice Scalia:

If one is to say, as the court does today, that all executions of the mentally retarded are so morally repugnant as to violate our national "standards of decency," surely the "consensus" it points to must be one that has set its righteous face against all such executions. Not 18 states, but only seven - 18% of death penalty jurisdictions have legislation of that scope. Eleven of those the court counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date of the legislation ... that is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches.
As the majority points out, when Penry was decided only 16 states forbade execution of the mentally retarded and 34 allowed it. While today the situation is nearly reversed. Furthermore, since the decision in Penry, only five states have executed prisoners with IQ's below 70 - Louisiana, Texas, South Carolina, Virginia, and South Carolina - meanwhile 18 states passed legislation against. But Scalia, through creative statistics, has whittled a nearly two-thirds majority down to 18%. And completely ignored the fact that in recent decades only 5 of 50 states have actually executed the mentally retarded. Scalia's tactics are impressive, if not for the fact they are totally disingenuous.

First, by what rationale would we exclude for consideration the 13 states that have abolished the death penalty completely? None, there is no rationale. Nor does the minority try to make one, they just impose it as if it were the most natural thing in the world.

Second, the issue of retroactivity is a red herring; laws are passed everyday that make conduct that was legal yesterday illegal today - and vice-versa. Furthermore, Scalia knows well why the states acted as they did. It had nothing to do with morality and everything to do with compromise and expediency. States did not want to open themselves up to a mountain of appeals by death row inmates - many of which would have been frivolous - based on newfound claims of mental retardation. Scalia knows the political exigencies of the law, but willingly chooses to ignore them. To call this duplicitous is charitable.

Scalia also seems scandalized that the majority would include a footnote that mentions various organizations with germane expertise that have adopted official positions against executing the mentally retarded - especially since the list includes several foreign organizations.

Equally irrelevant are the practices of the "world community," whose notions of justice are (thankfully) not always those of our people. Atkins v. Virginia, Justice Antonin Scalia, dissenting
To Scalia, this is a serious and unwarranted breach of court precedent. But just two paragraphs later Scalia quotes - not once, but twice - 17th century Englishman Matthew Hale. The irony is delicious. Obviously the opinions of foreigners don't matter - unless Scalia thinks they do.

Seriously, The Declaration of Independence placed America on a global stage when it made reference to "a decent respect to the opinions of mankind." And until the mid-1980s, Supreme Court decisions about the death penalty - like Gregg v. Georgia, which reinstated capital punishment in 1976 - frequently made reference to international standards as a way of gauging society's consensus on the issue.

All that changed in 1989, when Justice Scalia wrote a 5-to-4 majority opinion in Stanford v. Kentucky. The Court declared that only domestic "evolving standards of decency" matter in capital cases. Moral sensibility, the Court ruled, stops at the water's edge. But Justice Sandra Day O'Connor concurred separately in Scalia's ruling - hinting she was still open to a world-standard argument.

So, the precedent that Scalia rambles on about was one he almost singularly attempted to create - merely a decade ago - in a 5-4 decision, where his fifth vote didn't even agree with him.

Scalia counts himself as a believer in an "enduring" constitution as opposed to a "living" constitution. That is, he believes the constitution is a document that we should respect as it was written and not reinterpret to fit our times. As such, his opinion here should have been short, succinct, and easily understood as a matter of philosophical principle. Instead, he embarks on a raving diatribe that leaves him looking more like a contradictory and petulant schoolchild than a respected jurist.

1. But as Governor of Texas he executed three prisoners with IQ's below 70.


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