Special Report

Last Gasp for the Death Penalty

The Supreme Court appears set to declare capital punishment unconstitutional.

By 6.26.02

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For decades, a reliable minority of Supreme Court justices has dreamt of outlawing the death penalty. So far, however, anti-death penalty activists have had to take comfort in limited victories at the state level (such as the recent moratorium in Illinois) along with ever-increasing restrictions declared by the Supreme Court. Last Thursday's ruling in Atkins v. Virginia -- which held executions of the mentally retarded to be unconstitutional -- was yet another such nail in the death penalty's coffin. Unless the composition of the Court changes radically, and soon, a total ban on the death penalty in the U.S. may not be far off.

Daryl Renard Atkins was convicted of murder for helping to abduct a man, then shooting him eight times in order to steal $200. Because of the severity of the crime, Atkins -- who had 16 prior felony convictions and had been drinking and smoking marijuana with his accomplice before committing the crime -- was found guilty and sentenced to death. The Supreme Court's prime justification for letting Atkins off the hook last week was that a new "national consensus" against executing the retarded had arisen since the Court last considered the issue 13 years ago.

To prove that such executions violate the Eighth Amendment's ban on "cruel and unusual" punishment, the majority relied on the "trend" of 18 state legislatures banning the practice since 1989. And in a move that bitterly upset the conservative minority (Chief Justice Rehnquist and Justices Scalia and Thomas), the Court also relied on opinion polls conducted on behalf of media outlets like the Charlotte Observer and Time magazine, and pro-defendant organizations like the Oklahoma Indigent Defense System and Amnesty International. Rehnquist disliked this "blind-faith credence" in unscientific surveys so much that he omitted the traditional word "respectfully" and merely wrote "I dissent" at the end of his opinion.

This reliance on alleged public opinion for determining constitutionality is not the ruling's only problem. In a move indicative of the direction the Court is headed, the majority signaled its acceptance of the argument that there is something inherently biased about the death penalty's application in the U.S. As an example of this bias, the Court cited what it says is a high risk that mentally retarded defendants may falsely confess, act as poor witnesses at trial, and be less able to assist their lawyers because of low mental abilities. With little real evidence, the Court declared: "Mentally retarded defendants in the aggregate face a special risk of wrongful execution." And if the point wasn't clear enough, the majority added in a footnote: "[W]e cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated."

In Supreme Court-speak, that was a signal that the majority may be ready to stop nibbling around the edges of the death penalty question, and move on to the main course. After all, if capital punishment is unfairly applied and a "disturbing number" of those on death row have been wrongfully convicted, it follows any use of capital punishment is "cruel and unusual," and therefore prohibited by the Constitution.

But we're not there just yet. Returning to Atkins, even those who despise the death penalty must admit that the case left a number of unresolved issues in its wake. The most important is how, exactly, "mental retardation" should be determined. While in jail, Atkins himself was diagnosed with a 59 I.Q. (anything between 50 and 70 is generally considered to be "mild" retardation). The prosecution, of course, presented its own witness who said Atkins' intelligence was "at least" average. In last Thursday's ruling, the Court didn't specify which defendants should be given a magic pass and which should not, so the states will have to muddle through and devise their own standards. As Scalia pointed out in his dissent, the Atkins decision will likely turn "the process of capital trial into a game." If being feeble-minded takes death off the table, why not try to fake it? After all, Amnesty International probably has a mile-long list of sympathetic doctors who can testify on behalf of any convicted killer at the drop of a hat.

It is a shame that the majority didn't stick to the widely used standards for determining whether a mentally ill person should be held legally responsible for his crimes -- knowing the difference between right and wrong, and being able to conform one's behavior to the law. The proper place for consideration of a defendant's mental condition is the jury room, where all the circumstances of the victim, the crime, and the criminal can be given due consideration. (While the Court limited jury discretion in Atkins by removing from juries the ability to sentence mentally retarded killers to death, it made the nearly opposite move on Monday in Ring v. Arizona. There the Court held that judges alone may not make sentencing decisions in capital cases, but rather that the Sixth Amendment requires decisions regarding aggravating factors to be made by juries. Experts say that requiring juries to bear this responsibility may result in fewer death sentences, not to mention numerous procedural headaches as states are bombarded with appeals from those now on death row.)

Scalia said the majority in Atkins was practicing a "death-is-different jurisprudence." In other words, when it comes to the death penalty, the Court has failed to follow its own precedent and instead attempted to justify an evolving, progressive sentiment not shared by the rest of the country. Certainly, most Americans would consider that death is different from other punishments, which is why it is reserved for only the most heinous crimes. It may not be long, however, before the Supreme Court declares that it cannot be applied at all.

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About the Author

Tracy Robinson is a 2004 graduate of the George Mason University School of Law.