Death Penalty, Atkins v. Virginia

[A18]

Atkins v. Virginia, 536 U.S. 304 (2002)

JUDGES: Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined.

OPINION: Justice Stevens delivered the opinion of the Court.

Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are "cruel and unusual punishments" prohibited by the Eighth Amendment to the Federal Constitution.

...

Our independent evaluation of the issue reveals no reason to disagree with the judgment of "the legislatures that have recently addressed the matter" and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our "evolving standards of decency," we therefore conclude that such punishment is excessive and that the Constitution "places a substantive restriction on the State's power to take the life" of a mentally retarded offender. Ford, 477 U. S., at 405.

The judgment of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

[A18]

DISSENT: Justice Scalia, with whom the Chief Justice and Justice Thomas join, dissenting.

Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.

I

I begin with a brief restatement of facts that are abridged by the Court but important to understanding this case. After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs. ...

II

As the foregoing history demonstrates, petitioner's mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt him from the death penalty in light of the brutality of his crime and his long demonstrated propensity for violence. "In upsetting this particularized judgment on the basis of a constitutional absolute," the Court concludes that no one who is even slightly mentally retarded can have sufficient "moral responsibility to be subjected to capital punishment for any crime. As a sociological and moral conclusion that is implausible; and it is doubly implausible as an interpretation of the United States Constitution." Thompson v. Oklahoma, 487 U. S. 815, 863-864 (1988) (Scalia, J., dissenting).

Under our Eighth Amendment jurisprudence, a punishment is "cruel and unusual" if it falls within one of two categories: "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted," Ford v. Wainwright, 477 U. S. 399, 405 (1986), and modes of punishment that are inconsistent with modern "standards of decency," as evinced by objective indicia, the most important of which is "legislation enacted by the country's legislatures," Penry v. Lynaugh, 492 U. S. 302, 330-331 (1989).

The Court makes no pretense that execution of the mildly mentally retarded would have been considered "cruel and unusual" in 1791. Only the severely or profoundly mentally retarded, commonly known as "idiots," enjoyed any special status under the law at that time. They, like lunatics, suffered a "deficiency in will" rendering them unable to tell right from wrong. 4 W. Blackstone, Commentaries on the Laws of England 24 (1769) (hereinafter Blackstone); see also Penry, 492 U. S., at 331-332 ("[T]he term `idiot' was generally used to describe persons who had a total lack of reason or understanding, or an inability to distinguish between good and evil"); id., at 333 (citing sources indicating that idiots generally had an IQ of 25 or below, which would place them within the "profound" or "severe" range of mental retardation under modern standards); 2 A. Fitz-Herbert, Natura Brevium 233B (9th ed. 1794) (originally published 1534) (An idiot is "such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is, etc., so as it may appear that he hath no understanding of reason what shall be for his profit, or what for his loss"). Due to their incompetence, idiots were "excuse[d] from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses." 4 Blackstone 25; see also Penry, supra, at 331. Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them from "go[ing] loose, to the terror of the king's subjects." 4 Blackstone 25; see also S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 12-14 (3d ed. 1985); 1 Blackstone 292-296; 1 M. Hale, Pleas of the Crown 33 (1st Am. ed. 1847). Mentally retarded offenders with less severe impairments--those who were not "idiots"--suffered criminal prosecution and punishment, including capital punishment. See, e.g., I. Ray, Medical Jurisprudence of Insanity 65, 87-92 (W. Overholser ed. 1962) (recounting the 1834 trial and execution in Concord, New Hampshire, of an apparent "imbecile"--imbecility being a less severe form of retardation which "differs from idiocy in the circumstance that while in [the idiot] there is an utter destitution of every thing like reason, [imbeciles] possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind"); A. Highmore, Law of Idiocy and Lunacy 200 (1807) ("The great difficulty in all these cases, is to determine where a person shall be said to be so far deprived of his sense and memory as not to have any of his actions imputed to him: or where notwithstanding some defects of this kind he still appears to have so much reason and understanding as will make him accountable for his actions ...").

...

The Court pays lipservice to these precedents as it miraculously extracts a "national consensus" forbidding execution of the mentally retarded, ante, at 12, from the fact that 18 States--less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists)--have very recently enacted legislation barring execution of the mentally retarded. Even that 47% figure is a distorted one. 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 that 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; those already on death row, or consigned there before the statute's effective date, or even (in those States using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches. Two of these States permit execution of the mentally retarded in other situations as well: Kansas apparently permits execution of all except the severely mentally retarded; New York permits execeution of the mentally retarded who commit murder in a correctional facility.

But let us accept, for the sake of argument, the Court's faulty count. That bare number of States alone--18--should be enough to convince any reasonable person that no "national consensus" exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to "consensus"? ...

Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 States it relies on is still in its infancy. The oldest of the statutes is only 14 years old; five were enacted last year; over half were enacted within the past eight years. Few, if any, of the States have had sufficient experience with these laws to know whether they are sensible in the long term. It is "myopic to base sweeping constitutional principles upon the narrow experience of [a few] years." Coker, 433 U. S., at 614 (Burger, C. J., dissenting); see also Thompson, 487 U. S., at 854-855 (O'Connor, J., concurring in judgment). ...

I respectfully dissent.

[Emsworth]

The decision is an unsound one.

The term "cruel and unusual punishment," which appears not only in the Eighth Amendment but also in the English Bill of Rights, was well-defined at the common law. It was not intentionally left vague, so that the courts might do with it as they pleased. On the contrary, it was as clearly understood as "during good behavior" or "due process of law."

The common law is clear that the execution of an "idiot" constitutes cruel and unusual punishment. It was a well-accepted legal maxim that furiosus furore solum punitur, or "the madness of the insane is punishment enough." Sir Edward Coke (Lord Chief Justice of the King's Bench) called the execution of a madman a "miserable spectacle ... of extreme inhumanity and cruelty," and Sir William Blackstone called it a "savage and inhuman" practice. It is obvious, therefore, that the execution of a completely insane person is constitutionally forbidden.

But the same rule does not apply to only mildly ill individuals. According to Blackstone, "A man is not an idiot, if he has any glimmering of reason." Only "total idiocy, or absolute insanity" excuses punishment. The defendant in this case does not meet such criteria; accordingly, his punishment is neither cruel nor unusual, within the meaning of the common law or the Constitution.

The Supreme Court based this decision on "evolving standards of decency." Needless to say, such an approach is completely inappropriate.

There is only one way in which the meaning of the Constitution may change: by constitutional amendment. Its meaning does not change due to the ebb and flow of American society. Any argument based on the proposition that the same text means one thing today, but another tomorrow, is wholly invalid.

[A18]

There are three categories of punishment that are sometimes asserted as "cruel and unusual" -- (a) punishments not prescribed by the legislature, (b) torturous punishments, and (c) disproportionate and excessive punishments.

Most scholars agree that the prohibition on "cruel and unusual punishment" in the 1689 English Bill of Rights applied only to punishments not authorized by Parliament. The American understanding, on the other hand, seems to have been that the prohibition applied to torturous punishments such as pillorying, disemboweling, decapitation, and drawing and quartering. Those punishments were virtually non-existent in the colonies; Justice Story went as far as to say that the provision "would seem wholly unnecessary in a free government, since it is scarcely possible, that any department of such government should authorize, or justify such atrocious conduct."

As for the "disproportionate and excessive punishments" view, that was first raised in dissent to O'Neil v. Vermont. The Court later adopted the view in Weems v. United States.

It doesn't seem terribly unreasonable in itself, but in Trop v. Dulles, Chief Justice Warren invented the "evolving standards of decency" test, and Eight Amendment jurisprudence has been in disarray ever since.

In subsequent cases, Chief Justice Burger would insist that the framers meant to ban only punishments not prescribed by the legislature and torturous punishments. The majority seems to have agreed with Burger, but nevertheless opted for Warren's evolutionary shell game.

As for this case, the best thing that can be said about the majority is that it seems they were only looking out for their own well-being.

[Emsworth]

Eight Amendment jurisprudence has been in disarray ...

Unfortunately, this seems to be the case for most constitutional provisions since the era of Earl Warren. The Supreme Court seems to have grave difficulties in establishing clear,  simple, and accurate jurisprudence on any issue of importance. Instead, seems intent on establishing the most labyrinthine precedents, on endorsing the most implausible interpretations, and on applying the most dubious standards.

The Fourteenth Amendment is the most obvious example. Due process clause jurisprudence is in utter chaos, plagued by vague notions of "strict scrutiny," "compelling state interests," and "undue burdens." Equal protection clause jurisprudence, similarly, is not much better than a wilderness, as indicated by decisions such as Reynolds v. Sims. The only Fourteenth Amendment clause exempt from these ills seems to be the privileges or immunities clause, but that provision has been wholly neglected by the judiciary.

[A18]

Actually, they used it to strike down a California statute limiting welfare benefits to newcomers.

[Emsworth]

Actually, they used it to strike down a California statute limiting welfare benefits to newcomers.

I had forgotten about Saenz v. Roe, but that decision was also based on equal protection grounds.

[© tweed]

You two really need a child board or something.

[Emsworth]

You two really need a child board or something.

A request has already been made (see here).