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.