Pot Calls Kettle Black.
Executing mentally retarded murderers is "cruel and unusual" punishment and therefore unconstitutional, according to a 6-3 decision handed down yesterday by the Supreme Court in Atkins v. Virginia. The decision brings the United States in line with most of the world (according to Amnesty International, since 1995 only three countries -- Kyrgyzstan, Japan and the United States -- have executed retarded murderers), a point that the Court noted in one of its footnotes.
The crux of the Court's analysis was whether there was an identifiable national consensus that executing the retarded was "cruel and unusual" punishment. According to the Court, 38 states permit capital punishment; of those, 18 states have outlawed executions of retarded murderers. The Court noted in addition that when it reinstated the death penalty under federal law, Congress itself outlawed executions of retarded murderers. The Court contrasted those statistics with the last time that the Supreme Court considered this issue, in 1989; at that time, only two states and the federal government barred executions of retarded inmates. From these statistics, the Court concluded that whereas in 1989 there was not an identifiable national consensus on the issue, thirteen years later, such a consensus exists.
The Court's decision reflects not just legislative pronouncements, but also popular sentiment about the execution of the retarded. Maybe it's the influence of books like "Flowers for Algernon" and "Of Mice and Men" or maybe it's common sense, but we as a country seem moved by the image that a mentally retarded murderer never meant to do it -- they are really just small children trapped inside the sometimes awkward and unwieldly bodies of grown-ups, without the capacity to understand either the logical consequences of their actions or that death may be one of those consequences (consider the 1992 execution of Ricky Ray Rector, a man so profoundly retarded that he purportedly saved the dessert from his last meal to eat when he returned to his cell). In law, this common-sense notion is expressed in the concept of mens rea, a guilty mind. Without a mens rea, there is no "crime", just an unfortunate occurence (also known as an accident).
In this context, mental retardation is both explanation and exoneration; as the Court explains, the death penalty's purposes -- retribution and deterrence -- are irrelevant to someone who does not comprehend logical consequences, since he will be incapable of meaningful remorse and is unlikely to understand deterrence. [This is not to say that they should be set free, just that the death penalty doesn't apply here. As two justices in Virginia's high court observed, a moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of limitations of the retarded in a meaningful way.]
Given the frank simplicity of the argument (is there a national consensus or not?) and the moral gravity of the issue, it was disturbing to read the dissenting opinion by Justice Scalia, which stoops to excoriating the majority for arrogating power to itself and accusing the majority of "breath taking" arrogance.
Perhaps the most disturbing part of Scalia's dissent is its abandonment of civility -- rather than criticize the majority on the merits (of which there are some), Scalia's dissent starts with an uncivil bang and goes downhill from there: "Seldom has an opinion of this court rested so obviously upon nothing but the personal view of its members." Scalia's invective includes statements that "the Court pays lip service" to precedents; that the Court "miraculously extracts a national consensus" from the data; and the court engaged in a "feeble effort to fabricate national consensus". Scalia goes on to accuse the majority of "pretensions to power" unconfined by current or historical moral sentiments, and of having the arrogance to believe that "really good lawyers [i.e., the majority] have moral sentiments superior to those of the common herd, whether in 1791 or today." Scalia caps off his attack with this statement: "The arrogance of this assumption of power takes one breath away. And it explains, of course, why the court can be so cavalier about the evidence of consensus. It is just a game, after all."
Really, there's no excuse for that kind of judicial trash-talking. Rather than engage the majority (on the Court and in the world), Scalia sneers and obfuscates. For example, Scalia claims that there can be no national consensus when 18 of the 38 death-penalty states go one way while 20 preserve the status quo; as Scalia asks, how is it possible that agreement among 47 percent of the death-penalty jurisdictions amounts to 'consensus'?" But this is a misleading question -- 18 states have barred execution of retarded murderers, and 12 more have barred execution of any murderer (that is, they do not permit the death penalty). By my count, that's 30 states (60%) that have expressed the view, directly or indirectly, that execution of retarded murderers is not permissible. The sneering language and accusations of arrogance aside, Scalia never addresses that point.
Similarly, Scalia sneeringly dismisses world opinion: "Equally irrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people." Just who are the members of the "so-called 'world community'" (to use Scalia's description)? Well, according to the majority's footnote, they include the 15 nations of the European Union (link to the EU's amicus curiae brief). Moreover, why is world opinion irrelevant? As a group of American diplomats argued in an amicus curiae brief, the American position on the death penalty is a source of friction between the United States and other countries. Given the times that we live in, can we afford "friction"?
At bottom, Scalia's dismissive tone and his accusations that the court is engaged in some kind of usurpation of legislative authority are demeaning to himself and to the Court; the legitimacy of the judiciary is founded on civility and logic, which is severely undermined if his view that it's apparently "just a game" to the majority were ever to take hold. If Scalia disputes the logic of the majority, let him counter that logic in a respectful way that upholds the ideals that the majority and the dissenters all purport to represent. Vituperation may be acceptable (even desireable) in a legislative debate, but it is inappropriate in a reasoned opinion set down for posterity.
I used to admire Justice Scalia even as I vehemently disagreed with his positions, because he was able to articulate a vision of the judiciary that was internally consistent and elegantly argued. If I disagreed with his underlying assumptions, at least I could say that the issue was well-joined and provided the basis for further exploration. At the end of the day, however, I think that Justice Scalia has traded in his clarity for the sake of politics, and substituted intellectual snobbery and bullying for reason and persuasive argumentation. It's sad.
[As an aside, I find two statements by Justice Scalia in Atkins ironic in view of his participation in the majority in Bush v. Gore: first, he says that "Seldom has an opinion of this court rested so obviously upon nothing but the personal view of its members", which is exactly what the majority in that case was accused of doing; next, he says that underlying the majority decision in Atkins is a "pretension to power" unconfined by "the current moral sentiments of the American people." The same criticism has been applied to Bush v. Gore. As the headline suggests, the pot calls the kettle black.]
Executing mentally retarded murderers is "cruel and unusual" punishment and therefore unconstitutional, according to a 6-3 decision handed down yesterday by the Supreme Court in Atkins v. Virginia. The decision brings the United States in line with most of the world (according to Amnesty International, since 1995 only three countries -- Kyrgyzstan, Japan and the United States -- have executed retarded murderers), a point that the Court noted in one of its footnotes.
The crux of the Court's analysis was whether there was an identifiable national consensus that executing the retarded was "cruel and unusual" punishment. According to the Court, 38 states permit capital punishment; of those, 18 states have outlawed executions of retarded murderers. The Court noted in addition that when it reinstated the death penalty under federal law, Congress itself outlawed executions of retarded murderers. The Court contrasted those statistics with the last time that the Supreme Court considered this issue, in 1989; at that time, only two states and the federal government barred executions of retarded inmates. From these statistics, the Court concluded that whereas in 1989 there was not an identifiable national consensus on the issue, thirteen years later, such a consensus exists.
The Court's decision reflects not just legislative pronouncements, but also popular sentiment about the execution of the retarded. Maybe it's the influence of books like "Flowers for Algernon" and "Of Mice and Men" or maybe it's common sense, but we as a country seem moved by the image that a mentally retarded murderer never meant to do it -- they are really just small children trapped inside the sometimes awkward and unwieldly bodies of grown-ups, without the capacity to understand either the logical consequences of their actions or that death may be one of those consequences (consider the 1992 execution of Ricky Ray Rector, a man so profoundly retarded that he purportedly saved the dessert from his last meal to eat when he returned to his cell). In law, this common-sense notion is expressed in the concept of mens rea, a guilty mind. Without a mens rea, there is no "crime", just an unfortunate occurence (also known as an accident).
In this context, mental retardation is both explanation and exoneration; as the Court explains, the death penalty's purposes -- retribution and deterrence -- are irrelevant to someone who does not comprehend logical consequences, since he will be incapable of meaningful remorse and is unlikely to understand deterrence. [This is not to say that they should be set free, just that the death penalty doesn't apply here. As two justices in Virginia's high court observed, a moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of limitations of the retarded in a meaningful way.]
Given the frank simplicity of the argument (is there a national consensus or not?) and the moral gravity of the issue, it was disturbing to read the dissenting opinion by Justice Scalia, which stoops to excoriating the majority for arrogating power to itself and accusing the majority of "breath taking" arrogance.
Perhaps the most disturbing part of Scalia's dissent is its abandonment of civility -- rather than criticize the majority on the merits (of which there are some), Scalia's dissent starts with an uncivil bang and goes downhill from there: "Seldom has an opinion of this court rested so obviously upon nothing but the personal view of its members." Scalia's invective includes statements that "the Court pays lip service" to precedents; that the Court "miraculously extracts a national consensus" from the data; and the court engaged in a "feeble effort to fabricate national consensus". Scalia goes on to accuse the majority of "pretensions to power" unconfined by current or historical moral sentiments, and of having the arrogance to believe that "really good lawyers [i.e., the majority] have moral sentiments superior to those of the common herd, whether in 1791 or today." Scalia caps off his attack with this statement: "The arrogance of this assumption of power takes one breath away. And it explains, of course, why the court can be so cavalier about the evidence of consensus. It is just a game, after all."
Really, there's no excuse for that kind of judicial trash-talking. Rather than engage the majority (on the Court and in the world), Scalia sneers and obfuscates. For example, Scalia claims that there can be no national consensus when 18 of the 38 death-penalty states go one way while 20 preserve the status quo; as Scalia asks, how is it possible that agreement among 47 percent of the death-penalty jurisdictions amounts to 'consensus'?" But this is a misleading question -- 18 states have barred execution of retarded murderers, and 12 more have barred execution of any murderer (that is, they do not permit the death penalty). By my count, that's 30 states (60%) that have expressed the view, directly or indirectly, that execution of retarded murderers is not permissible. The sneering language and accusations of arrogance aside, Scalia never addresses that point.
Similarly, Scalia sneeringly dismisses world opinion: "Equally irrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people." Just who are the members of the "so-called 'world community'" (to use Scalia's description)? Well, according to the majority's footnote, they include the 15 nations of the European Union (link to the EU's amicus curiae brief). Moreover, why is world opinion irrelevant? As a group of American diplomats argued in an amicus curiae brief, the American position on the death penalty is a source of friction between the United States and other countries. Given the times that we live in, can we afford "friction"?
At bottom, Scalia's dismissive tone and his accusations that the court is engaged in some kind of usurpation of legislative authority are demeaning to himself and to the Court; the legitimacy of the judiciary is founded on civility and logic, which is severely undermined if his view that it's apparently "just a game" to the majority were ever to take hold. If Scalia disputes the logic of the majority, let him counter that logic in a respectful way that upholds the ideals that the majority and the dissenters all purport to represent. Vituperation may be acceptable (even desireable) in a legislative debate, but it is inappropriate in a reasoned opinion set down for posterity.
I used to admire Justice Scalia even as I vehemently disagreed with his positions, because he was able to articulate a vision of the judiciary that was internally consistent and elegantly argued. If I disagreed with his underlying assumptions, at least I could say that the issue was well-joined and provided the basis for further exploration. At the end of the day, however, I think that Justice Scalia has traded in his clarity for the sake of politics, and substituted intellectual snobbery and bullying for reason and persuasive argumentation. It's sad.
[As an aside, I find two statements by Justice Scalia in Atkins ironic in view of his participation in the majority in Bush v. Gore: first, he says that "Seldom has an opinion of this court rested so obviously upon nothing but the personal view of its members", which is exactly what the majority in that case was accused of doing; next, he says that underlying the majority decision in Atkins is a "pretension to power" unconfined by "the current moral sentiments of the American people." The same criticism has been applied to Bush v. Gore. As the headline suggests, the pot calls the kettle black.]
posted by Daniel at 12:26 PM
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