Morality in Law: Capital Punishment and the Mentally Retarded A thesis submitted to the Miami University Honors Program, the Department of Philosophy, and the American Studies Program in partial fulfillment of the requirements for University Honors and Departmental Honors, respectively. by Daniel J. Burke May, 2003 Oxford, Ohio ABSTRACT Morality in Law: Capital Punishment and the Mentally Retarded By Daniel J. Burke The debate over capital punishment is a fierce and persistent one. Moral, practical, and legal arguments are weighed, often with conflicting conclusions. This thesis will examine one subsection of the debate in order to determine the significance of moral theories in legal rulings. A review of the moral arguments and the legal history will precede a final comparison of the two. The first two chapters will show that the execution of persons with mental retardation is both morally and legally unacceptable. The final comparison suggests that, although moral arguments may not have a given role in the courtroom, the inclusion of such arguments rescues the system from amorality and serves a valuable, if dangerous, purpose in legislative review and evolution. ii iii Morality in Law: Capital Punishment and the Mentally Retarded By Daniel J. Burke Approved by: Dr. Richard Momeyer, Advisor Dr. Rama Rao Pappu, Reader Dr. Daniel Herron, Reader Accepted by: Dr. Carolyn Haynes, Director, University Honors Program iv v Acknowledgments The completion of this thesis is the result of the guidance and encouragement of others as much as it is my own effort. I thank my advisor Richard Momeyer for his patience and for his diligent attention to my work. The final product surprises me and it is no doubt due to his input and assistance that this surprise has been a pleasant one. I next wish to thank my readers, Rama Rao Pappu and Dan Herron, for their contribution. They blindly sacrificed their time and I only hope that, after reading my work, they do not regret it. I also thank Peggy Shaffer and Terry Perlin for reviewing early (and ugly) drafts and offering their suggestions. I thank my family for listening to frustrations and cheering successes along the way. Finally, I thank my housemates for forcing me to reach unprecedented levels of concentration and for their open invitation to procrastinate; I am certain this thesis is better thanks to all of the above. vi Contents Introduction 1 Chapter One: The Moral Arguments 4 Chapter Two: The Legal History 15 Chapter Three: Relations between Law and Morality 36 Epilogue 50 Bibliography 52 vii Introduction1 On the night of August 16th, 1996, Daryl Renard Atkins and his friend, William Jones, entered a convenience store in York County, Virginia. Atkins carried a firearm with him but concealed it while at the store. After drinking and smoking marijuana that afternoon, the two men were seeking more beer but had no money. Atkins approached several other customers asking for money, including Eric Nesbitt. Nesbitt was a 21-year- old Air Force pilot from nearby Langley Air Force Base. Atkins and Jones followed Nesbitt out of the store, forcibly entered his truck, and robbed him. The money Nesbitt had with him was apparently insufficient, as Atkins demanded that he drive to the ATM to withdraw more. Cameras at the ATM recorded the visit. The three men then proceeded to a remote location where Nesbitt was shot eight times, fatally. Atkins had a long list of felony convictions on his record. Some of these were recounted during the Nesbitt murder trial. “Robbery, attempted robbery, abduction, use of a firearm, and maiming,” Atkins’ record was anything but clean. Previous victims testified about Atkins’ violent and abusive behavior. His co-conspirator, William Jones, testified that it was Atkins who committed the final act of murder. Atkins also had a long history of mental impairment. He had failed the second and tenth grades in school and achieved a 1.26 grade point average (out of a possible 4.0) before dropping out of high school. Atkins’ overall IQ was found to be 59, well below the generally accepted cutoff for mental retardation (70-75). The early presentation of Atkins’ impairment in conjunction with his substantial intellectual impairment and his 1 Facts about the crime and the trial, although they can be found in many sources, have been taken from the following: Atkins v. Virginia, 536 U.S. 304, 20 June, 2002.; “Daryl Renard Atkins – Mental Retardation,” The International Justice Project, http://www.internationaljusticeproject.org/retardationDatkins.cfm, (20 March 2003). Burke 2 “limited capacity for adaptive behavior” qualified him as “mildly mentally retarded.”2 Despite this finding, the jury convicted Atkins of capital murder and sentenced him to death. Atkins appealed the sentence and on June 20th, 2002, the United States Supreme Court issued their official opinion in the case of Daryl Renard Atkins v. Virginia. Their ruling upheld Atkins’ conviction but overturned his death sentence on the grounds that execution of the mentally retarded violated the Eighth Amendment prohibition against “cruel and unusual punishment.” Such a ruling is especially significant because it effectively prohibits any such execution in the future. Atkins established a substantial limitation to the practice of capital punishment and marked a major victory for opponents of the death penalty. This thesis will examine the Atkins ruling for its importance as a legal and moral decision. Moral theorists have long debated the moral legitimacy of capital punishment and the law has struggled to respond to this debate. The present examination will require an understanding of 1) the moral arguments concerning this debate and 2) the legal background of the ruling. The initial result will be an understanding of the Atkins case itself. However, this paper has a deeper goal. Examining the ruling carefully for moral and legal arguments will reveal that law and morality are not completely separate. The nature of their interaction is complex and controversial, but the following chapters will show one of the ways that law and morality interact. Furthermore, I will argue that it may be fortunate that the two fields mingle. The specific issue of executing persons with mental retardation will allow us to examine the broader issues of morality in law and the 2 The International Justice Project, http://www.internationaljusticeproject.org/retardationDatkins.cfm. 2 Burke 3 role of the judiciary in negotiating this relationship. Conclusions on the morality of executing persons with mental retardation, the legality of executing persons with mental retardation and the place for morality in law are explained in the final chapter. These conclusions have been reached in the course of considering the question: What influence do moral theories have on the decisions of the courts? 3 Chapter One: The Moral Arguments The moral arguments for capital punishment can be divided into two general categories: forward looking (consequentialist) and backward looking (retributivist). This distinguishes the approaches based on the considerations they deem relevant to morality. As the name suggests, the consequentialist approach is concerned with the consequences of an action when evaluating its moral permissibility. The moral theory of utilitarianism, a consequentialist theory, is a key element of the death penalty debate. Jeremy Bentham, a principal founder of utilitarianism, wrote “By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to augment or to diminish the happiness of the party whose interest is in question.”3 Referred to by John Stuart Mill (the other principal founder of utilitarianism) as the Greatest Happiness Principle,4 utilitarianism weighs the pros and cons for every action to determine the moral value of that action. Therefore, when considering punishment, a wide range of consequences should be considered. In limiting these considerations, a further distinction can be made between ‘act’ and ‘rule’ utilitarianism. Act utilitarianism examines the consequences of each act, determining moral acceptability on a case-by-case basis. Rule utilitarianism considers the consequences of general codes of conduct and then operates according to these codes. Although act utilitarianism is useful for evaluating particular court cases, rule utilitarianism will be more appropriate when evaluating broad practices, such as executing persons with mental retardation. Landmark court cases, of the kind that will be 3 Jeremy Bentham, “From An Introduction to the Principles of Morals and Legislation,” in Utilitarianism and Other Essays, ed. Alan Ryan (New York: Penguin Books, 1987), 65. 4 J. S. Mill, “Utilitarianism,” in Utilitarianism and Other Essays, ed. Alan Ryan (New York: Penguin Books, 1987), 278. Burke 5 noted in Chapter II, alter and/or establish rules in the form of legal precedent. Of course the individual who is directly affected by the ruling matters, but the broader effects are my concern here. Because of its flexibility, the utilitarian justification for punishment is nearly impossible to state concisely. We might consider only direct and immediate consequences or we might deem indirect, long-term effects relevant. This leads to uncertainty about whether the utilitarian does or does not approve of capital punishment. The lack of definitive evidence of many of the consequences being considered further complicates the debate. The most common utilitarian justifications for punishment can be broken down into three major groups: deterrence, reform, and prevention.5 These are also three primary penological goals, since the utilitarian is gauging morality by practical considerations. Punishing the criminal can deter potential criminals, reform the convicted criminal, and prevent the convicted criminal from repeating his/her offense. Deterrence has long been the most debated penological goal. Proponents argue for the logical existence of deterrence. Punishing a criminal for committing a crime sends a message to potential criminals that they too will be punished.