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. Arguably, because the death penalty is the strongest of punishments it will have a correspondingly strong deterrent effect. This argument seems logical and persuades the utilitarian in each of us to support some form of punishment for crimes. Extreme extensions of this principle are precluded by a general public revulsion against excessive punishment (to punish excessively would probably cause public outrage, a major negative consequence).
However, within reason, the theory of deterrence predicts that a harsh penalty will deter
5Louis P. Pojman, “For the Death Penalty,” in The Death Penalty: For and Against, Louis P. Pojman and Jeffrey Reiman (Lanham, Maryland: Rowman and Littlefield Publishers, 1998), 22.
5 Burke 6 more than a gentle one. Isaac Ehrlich, in the course of his oft-cited statistical analysis of the deterrent effect of capital punishment between 1933 and 1967, claims “an additional execution per year […] may have resulted, on average, in 7 or 8 fewer murders.”6 He interpreted this to reinforce the expectation that a severe punishment deters crime.
Proponents of capital punishment argue that, when acceptable, executing murderers has the desirable result of deterring potential murderers.
In response to this argument, critics have echoed (and attempted to establish) the work of an 18th century Italian philosopher, Cesare Beccaria. Beccaria suggested that the certainty, rather than the severity, of punishment deters potential criminals.7 The consistency with which criminals are caught, convicted, and punished correlates to the deterrent effect, regardless of the severity of the punishment. Studies have found a stronger correlation between high incarceration rates and lower crime rates than high execution rates or length of sentences.8 In other words, harsher penalties do less to deter criminals than more certain penalties. The more immediate and inevitable the punishment, “the stronger and more lasting will be the association of the two ideas of crime and punishment; so that they may be considered, one as the cause, and the other as the unavoidable and necessary effect.”9 Continued efforts to decide the debate in either direction have left us without a clear answer. However, although it seems fair to make the limited conclusion that punishment deters crime, we cannot necessarily conclude that
6 Isaac Ehrlich, “The Deterrent Effect of Capital Punishment: A Question of Life and Death,” The American Economic Review 65, no. 3 (June, 1975): 414. 7 Cesare Beccaria, Of Crimes and Punishments, trans. Edward D. Ingraham, http://www.constitution.org/cb/crim_pun.htm, visited 2 February 2003. 8 Brian Forst, “Capital Punishment,” Minnesota Law Review, 61 (1977), 749-767. 9 Beccaria, http://www.constitution.org/cb/crim_pun19.htm.
6 Burke 7 capital punishment deters crime more effectively than life imprisonment (generally considered a less severe punishment).
A second major utilitarian consideration when evaluating punishment in general is its success in reforming the criminal. Reform is obviously irrelevant as a benefit of capital punishment, but if a criminal is unable to be reformed, that may be used as an argument for capital punishment. Moreover, capital punishment might be effective in reforming others, although this is essentially an optimistic permutation of deterrence
(punishment not only intimidates others into not committing crime, it causes others to reconsider their desire to commit crime). The third consideration, prevention, is most clearly served by capital punishment: killing a criminal absolutely prevents any further illegal (or legal) activity. Opponents of capital punishment argue that an effective penal system would incarcerate criminals and be equally preventative. Unfortunately, such a system remains an ideal.
While utilitarian arguments are often cloudy and contentious, the retributive position is clear-cut and unyielding. The retributivist believes that breaking the law is not only necessary but sufficient justification for punishment. We punish the criminal because s/he committed the crime, regardless of the consequences punishment may have.
In his critique of the position, Jeffrey Reiman combines two similar approaches into one
“retributivist principle.” It is: “the equality and rationality of persons imply that an offender deserves, and his victim has the right to impose on him, suffering equal to that which he imposed on the victim.”10 Although this statement is true for both Hegel and
Kant, Reiman distinguishes their final positions: Hegel simply establishes a right to
7 Burke 8 retribution, Kant establishes a duty. The fundamental concern of the retributive position is bringing justice to those who deserve it.
Strict retributivism focuses on desert to the exclusion of all other considerations.
Kant states that one should conform to moral law for no reason other than moral duty. “I also set aside those actions which are really in accordance with duty, yet to which men have no immediate inclination, but perform them because they are impelled thereto by some other inclination.”11 We punish the criminal only because s/he is a rational human being. Kant addresses the utilitarian position and deems it insufficient for truly moral action.
Therefore, if I were solely a member of the intelligible world, then all my actions would perfectly conform to the principle of the autonomy of a pure will; if I were solely a part of the world of sense, my actions would have to be taken as in complete conformity with the natural law of desires and inclinations. […] But the intelligible world contains the ground of the world of sense and therefore also the ground of its laws […] Consequently, I must regard the laws of the intelligible world as imperative for me, and the actions conforming to this principle as duties.12
The pure doctrine of retribution, because it is absent of considerations of “the world of sense,” is therefore a duty-bound theory according to Kant. We must punish in response to crime. This extends it beyond a simply retrospective argument. We are duty-bound in the future to accord our actions with the law in addition to punishing those who fail to do so.
Retribution should be distinguished from revenge. When the state punishes a criminal it is dispassionately enforcing the law. Retributive punishment, in theory, is not
10 Jeffrey Reiman, “Why the Death Penalty Should be Abolished in America,” in The Death Penalty: For and Against, Louis P. Pojman and Jeffrey Reiman (Lanham, Maryland: Rowman and Littlefield Publishers, 1998), 92. 11 Immanuel Kant, Grounding for the Metaphysics of Morals, trans. James W. Ellington (Indianapolis: Hackett, 1981), 10.
8 Burke 9 interested in satisfying a desire for revenge. In fact, revenge is unacceptable as a justification for punishment in a state. Hegel states this succinctly: “revenge, because it is a positive action of a particular will, becomes a new transgression.”13 The validity of state-sanctioned punishment, as Hegel describes it, depends on it being the response of a communal will to the criminal act of an individual will. The criminal, as a member of society, agreed to subject him or herself to the laws of the society. Individual emotion, apart from the will of the state, motivates vengeance; a strict desire for justice and equality motivates retributive punishment. The criminal has violated the communal will
(of the state) in which he chose to be a participant; as a participant in this communal will he is also subject to the laws accepted by it. Hegel also echoes the categorical imperative in his discussion of social contract: “punishment is regarded as containing the criminal's right and hence by being punished he is honoured as a rational being.”14 Only by punishing the criminal in proportion to his/her crime can we recognize and respect his/her humanity. Hegel also argues against rehabilitation: “Still less does [the criminal] receive
[the due of honour as a rational being] if he is treated either as a harmful animal who has to be made harmless, or with a view to deterring and reforming him.”15 We effectively disrespect and thus injure the criminal when we fail to treat his/her actions as statements of moral law to be given unto him/herself. We are therefore required to punish rational beings, not simply afforded the right to punish.
Although the retributive theory of punishment produces a consistent response to crime, opponents object to its lack of flexibility and its pessimistic view of human nature.
12 Ibid., 54-55. 13 G. W. F. Hegel, Philosophy of Right, trans. T. M. Knox (London: Oxford University Press, 1952), 73. 14 Ibid., 71. 15 Ibid., 71.
9 Burke 10
Strict retributivism dictates that we are duty-bound to capitally punish the murderer. The public may not often object to this practice, but this blanket principle fails to recognize the dramatic range in circumstances among the guilty. The dismissal of rehabilitation appears excessively harsh in the face of arguments that our actions are not completely our own. Commission of a crime under “severe mental or emotional disturbance” is included as a mitigating factor in United States murder code.16 This provision accounts for crimes in which the culpability of the criminal is mitigated by his/her condition. This condition might be one that would respond to treatment. For example, are we justified in killing a homicidal drug addict when drug treatment might effectively eliminate the threat of continued violence? Retributivism demands that we answer yes even if convincing evidence suggests we should answer no. To call the retributivist pessimistic about human nature is perhaps inaccurate: s/he is simply uninterested in human nature. A crime has been committed and the criminal should be punished. This simplicity, although attractive in certain ways, ignores too many important considerations for retributivism to be the single basis for an acceptable theory of punishment. Of course, in the real world application of retributivism as a penological principle it is not the sole basis for punishment. It goes alongside deterrence and other utilitarian concerns to help support our decision to execute. We currently execute only when it is proportionally appropriate
(for crimes including murder).
Retributivism is a very demanding moral theory. The positive and negative consequences considered above are irrelevant to the (strict) retributivist. The lex talionis, or law of retaliation, demands an eye for an eye. Therefore, in response to a murder, we
16 U. S. Department of Justice, “Criminal Resource Manual 75 Death Penalty Evaluation Form for Killings under Title 21,” http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00075.htm, visited
10 Burke 11 should execute the murderer. Should we murder him/her in the manner they killed their victim? Should we murder him/her regardless of any special circumstances? These questions point to an unpleasant aspect (if not a flaw) in the retributive theory of justice: it seems to leave no room for mercy. Hegel recognized the need to address mitigating factors in respect to guilt:
The subject’s right to know action in its specific character as good or evil, legal or illegal, has the result of diminishing or canceling in this respect too the responsibility of children, imbeciles, and lunatics, although it is impossible to delimit precisely either childhood, imbecility, &c., or their degree of irresponsibility.17
Hegel notes, specifically, that delimiting the “degree of irresponsibility” is impossible.
How, then, are we to determine which punishments should reflect mercy? Hegel’s concession to mitigating factors significantly weakens the moral imperative he and Kant endorse. Retributivism, the justification of capital punishment by desert, remains one facet of the complicated arguments in favor of the death penalty. The mitigating factors noted briefly by Hegel complicate the issue deeply.
The moral weight of utilitarianism and especially retributivism is dependent on certain aspects of the criminal. First, recall the arguments of utilitarianism: deterrence, rehabilitation, and prevention. For deterrence to be effective, potential criminals must understand that they will be punished if they commit a crime. Rehabilitation remains an irrelevant argument if capital punishment is the practice being evaluated. In order for prevention to be a compelling factor it must be clear that the criminal might commit crime again if allowed to live. Next, reviewing the heart of the retributive position, it is necessary that the criminal be responsible for the crime s/he has committed (the
27 March 2003. 17 Ibid., 88.
11 Burke 12 requirement of desert). Just as the Kantian would demand that every action be a conscious willing of moral law, a criminal act holds full moral weight only if it is specifically willed. Unintentional murder (manslaughter) is therefore treated differently than premeditated homicide.
Now consider some of the characteristics of people with mental retardation.
These individuals differ in ways that are significant to their status in the eyes of the moral theories explained above. The basic definition of mental retardation, as given by the
American Association on Mental Retardation, is: “a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.”18 Determining what exactly is meant by “significant” in this definition has been difficult for legislatures.
Several states base the diagnosis of mental retardation partially on a measured IQ of less than 60 or 70. This provides a certain amount of objectivity in the determination of mental retardation, but even if we accept the validity of the IQ measurement, within this group there are degrees of “limitation.” The focus, then, is on characteristics common to all those within the diagnosed group, such as an underdeveloped ability to understand consequences and an underdeveloped sense of responsibility.19 Individuals with mental retardation are often unable to function independently and must be guided. In other words, they are not autonomous beings and, as I will argue below, not the rational wills referred to by Kant. Overall, experts argue that the cognitive impairments common to mental retardation make the individual unable to understand such abstract concepts as
18 “The AAMR Definition of Mental Retardation,” http://www.aamr.org/Policies/fac_mental_retardation.shtml, visited 2 February 2003.
12 Burke 13 deterrence.20 Seeing criminals executed for their crimes does not create an association between crime and punishment. Indeed, in some cases it quite obviously does not even create an association between capital punishment and death. “Morris Mason, whose I.Q. was 62-66, was executed in 1985 in Virginia after being convicted of rape and murder.
Before his execution, Mason asked one of his legal advisors for advice on what to wear to his funeral.”21 If we accept the existence of this inability to relate action and consequence (as medical professionals suggest we should) the value of deterrence is voided. Other cognitively impaired, potential criminals cannot understand that if they commit murder they will suffer the same penalty as the condemned. This will also be relevant to the argument against retributivism made below.
This same deficiency might strengthen the argument for incapacitation. If they are unable to understand immoral or criminal conduct we have no assurance that they will behave lawfully in the future. However, incapacitation by life imprisonment (or the equivalent for a person with a mental handicap) rather than death could be sufficient.
Finally, consider the retributive value of punishing a person who qualifies as mentally retarded. This type of criminal clearly has a different level of culpability than the cold, calculated, serial killer. Without the ability to foresee the probable consequences of their actions they are unable to determine the moral gravity (or illegality, for that matter) of their actions. Often they have not willed another person dead in the common way; their action was not based on the same understanding of ‘life’ and ‘death.’
19 Rosa Ehrenreich et al., Beyond Reason: The Death Penalty and Offenders with Mental Retardation, Human Rights Watch, 13, no. 1(G) (March 2001): http://www.hrw.org/reports/2001/ustat/ustat0301- 01.htm#P206_25341, visited 4 February 2003. 20 Ibid. 21 Robert Perske, Unequal Justice? What Can Happen When Persons with Retardation or Other Developmental Disabilities Encounter the Criminal Justice System, (Nashville: Abingdon Press, 1991), 100-101, cited in Ehrenreich, op. cit.
13 Burke 14
A useful and popular example comes from John Stienbeck’s Of Mice and Men. Lenny, a gentle, child-like character, accidentally kills a woman without ever intending to do so.
His character exhibits many of the characteristics of a person with mental retardation and his story demonstrates the confusion inherent to the condition. Although such persons, strictly speaking, have brought the punishment on themselves by committing a crime, their level of understanding gives their actions a different moral value. These arguments clearly persuaded Hegel to temper his position, noting that “imbecility” has the effect of
“diminishing or canceling” responsibility.22 Just as we refuse to execute small children because they lack a degree of responsibility for their actions, so we hesitate to execute people who lack relevant social skills and ability to reason. The basic moral positions should now be clear as we move on to review the legal history before examining the connection between the two.
22 Hegel, op. cit.
14 Chapter Two: The Legal History
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” - The Eighth Amendment to the U.S. Constitution
The bulk of death penalty case law represents the attempt to interpret just six of these sixteen words decisively and consistently. Courts have sought to interpret the phrase “nor cruel and unusual punishments inflicted” countless times with various outcomes. The Atkins ruling marks the latest attempt to develop this interpretation.
Atkins, with the help of the following precedents, established that the execution of the persons with mental retardation is unconstitutional. Understanding what it established in this basic way leaves the most noteworthy aspects of it untouched. This decision did not appear from thin air, nor was it simply a subjective value judgment made by a group of nine people. The case-law basis for this ruling make it appear, if not inevitable, at least a logical extension of its predecessors. Regardless of their success or failure, previous attempts to interpret the Eighth Amendment contributed to the understanding that informed the Atkins decision. Understanding the most important of these attempts is a prerequisite for understanding the Atkins ruling. This chapter will highlight the cases that have most significantly influenced the development of current Eighth Amendment jurisprudence. The focus of these cases is generally not the imposition of the death penalty on defendants with mental retardation or other cognitive impairments. However, the alterations made to our interpretation of the Eighth Amendment have gradually drawn a picture of law into which the Atkins ruling now fits.
On first reading, the Eighth Amendment has a fairly clear and unremarkable point: the law should not be enforced with excessive severity. It protects citizens from Burke 16 being abused by the justice system. But what constitutes abuse? When is a fine excessive? This imprecise language makes the first half of the amendment only a vague guideline for action. Unfortunately, not even the moderately imprecise term of
“excessive” is used in reference to punishment. “Cruel and unusual” prove to be much trickier terms to pin down: cruel according to whom? unusual by what standards? These very questions were raised at the inception of the Amendment and the answers given by courts since then mark a developing approach to Constitutional interpretation. The framer’s said of the Eighth Amendment:
The clause seems to express a great deal of humanity, on which account I have no objection to it; but, as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine.23
From its inception the Eighth Amendment has been contested and confusing. On a basic interpretation, “cruel” seems to refer to torturous or inhumane forms of punishment while
“unusual” seems to refer to arbitrary or rare forms of punishment. This basic reading would be developed in a series of rulings, the most significant and lasting of which are recounted in this chapter.
The first ruling to clearly note proportionality as an element of Eighth
Amendment jurisprudence was a dissenting opinion in O’Neil v. Vermont (1892). O’Neil was convicted of “selling, furnishing, and giving away” liquor. Because this conviction was alleged to be just one of the defendant’s many such offenses, the sentence imposed was a staggering 54 years in prison. Although the Supreme Court upheld the sentence,
23 Annals of Congress 754 (1789), quoted in several rulings, including Furman v. Georgia, 408 U. S. 238, 1972, Douglas, J., concurring opinion.
16 Burke 17
Justice Field expressed specific concerns about the relevance of the Eighth Amendment to such sentences in his dissenting opinion:
The inhibition is directed, not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged. The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted.24
Although, as a dissenting opinion, this established no precedent for future rulings, it did introduce, for perhaps the first time, consideration of proportionality in reference to
“cruel and unusual punishments.”
One of the earliest rulings that continues to influence Eighth Amendment interpretation is Weems v. United States (1910). After being convicted of falsifying public documents, the defendant was sentenced to no less than twelve years of hard labor, as dictated by statutes of the time. On appeal to the U.S. Supreme Court, the defendant argued that, because the punishment was grossly disproportionate to the crime, it violated the Eighth Amendment prohibition against “cruel and unusual punishments.” The Court agreed and thereby set a precedent for interpreting the clause. “Cruel and unusual,” they ruled, did not only apply to torture. They interpreted the Eighth Amendment to support the belief that “it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.”25 Excessive punishments, such as the one imposed in
Weems, were also the concern of the Eighth Amendment. This marks a major refinement in the interpretation and the opening of a long and difficult debate. Cruel and unusual punishments are not only those obviously repulsive acts of torture such as dismemberment, burning at the stake, and disembowelment. This gave the clause some
24 O’Neil v. Vermont, 144 U.S. 323, 4 April 1892. 25 Ibid.
17 Burke 18 pertinence in a society that had long since discarded the most extreme examples of “cruel and unusual.” Beginning with Weems, courts agreed to determine what was proportionate punishment and what was not.
This proved to be a difficult and troubling task. First of all, how were groups of judges to approach the inevitably subjective task of evaluating the proportionality of a particular punishment? Gradated punishments required an established gradation of correlated crimes. The extreme of murder had the logically connected punishment of death, but the degree to which punishment should fit crime is a subjective judgment.
Second, and more troubling, was the concern that a small group of men and women (the judges) would be asked to determine what could be considered an acceptable punishment.
Beyond the practical problem of individually evaluating each punishment came the ethical dilemma of a small group setting the standards for punishment in a democratic state.
Clarification of standards was needed and it came in the form of another non- capital-case ruling. In 1944, a native-born American was convicted by court-martial for wartime desertion and sentenced to “three years hard-labor, forfeiture of all pay and allowances and a dishonorable discharge.”26 He later discovered that he had lost his citizenship as a result of his dishonorable discharge for desertion according to the
Nationality Act of 1940. His appeal to the Supreme Court, Trop v. Dulles, resulted in a reversal of the sentence, effectively finding the relevant portion of the Nationality Act unconstitutional. The reasons given for this decision were: 1) that citizenship cannot be divested in the exercise of the powers of the National Government; and 2) even if it could, such a statute would violate the Eighth Amendment guarantee against cruel and
18 Burke 19 unusual punishment.27 In addition, based on the Weems ruling, which established that the
Eighth Amendment was subject to continuous review, the Trop ruling further defined the nature of this continuous review. “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”28 Not only should the “cruel and unusual” clause apply to punishments other than those intended by the framers, it should be continuously refined as societal norms changed. This ruling established the importance of interpretations other than ‘original intent,’ or the attempt to apply the Amendments only to what could be assumed to be the intention of the authors.
Original intent retained significance, but the intended outcome was judged to be a definition of cruelty that changed with the times. By referring to the “progress of a maturing society” Trop implied that eventually society would move beyond the more brutal forms of punishment. The ruling carefully noted that the time had not yet come when the death penalty could be questioned:
Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment – and they are forceful – the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.29
Although it is unclear from this statement what would sufficiently indicate that standards had changed, it is very clear that such a change would, in the opinion of the court, render capital punishment unconstitutional. This demonstrated the willingness of the high court to make major changes in the practice of punishment and invited challenges to the most conspicuous of penalties.
26 Trop v. Dulles, 356 U.S. 86, 31 March, 1958. 27 Ibid. 28 Ibid.; also, Weems: “The clause of the Constitution […] may therefore be progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”
19 Burke 20
With this flexible standard for punishment in place it was only a matter of time before the death penalty was successfully challenged. The developing movement towards social justice that thrived in the ‘60’s created a social environment that influenced the death penalty debate. Public awareness of racism and its far-reaching effects grew. With it came the realization that capital punishment was disproportionately administered. Black criminals were being executed at a higher rate than white criminals were, especially when the crime was committed against a white person by a black person.
A study by Marvin E. Wolfgang and Marc Riedel found that, of those criminals eligible for the death penalty, 36% of the black defendants who committed a crime against a white victim received death compared to only 2% for all other racial combinations.30
This discriminatory application became a central issue in the case discussed below.
Although it cannot be proven, it is also likely that social activism, a central ‘theme’ of the
‘60’s, set the stage for a reevaluation of capital punishment. The desire for immediate rather than eventual/gradual change fueled the civil rights movement and primed the public for similar social change. Furthermore, it had become clear that American society had some deep issues to address; discrimination and its effects demanded attention. No longer was capital punishment considered an invulnerable practice inherited from the founders and therefore essential to criminal justice.
The case of William Henry Furman seized on this atmosphere of activism.
Furman, an African American, was convicted of murder and sentenced to death. The murder was committed in the course of an attempted robbery, supposedly by accident.
The jury that convicted Furman had the option of sentencing him to life in prison but
29 Ibid.
20 Burke 21 chose capital punishment instead. Furman appealed the conviction, directly attacking the practice of capital punishment. His appeal argued that capital punishment violated both the Eighth Amendment prohibition of cruel and unusual punishments and the Fourteenth
Amendment requirement of equal protection under the law.31 According to Furman, public opposition to the practice of capital punishment made it a violation of the Eighth
Amendment and its discriminatory application made it a violation of the Fourteenth.
With proportionality and “evolving standards of decency” established by Weems and Trop as legitimate Eighth Amendment concerns, Furman v. Georgia (1972) attempted to make a final, decisive attack on capital punishment. Perhaps more than anything, the personal readiness of the high court’s justices to address the issue of capital punishment allowed this case to be reviewed. The appeal was limited to the question:
“Does the imposition and carrying out of the death penalty in [this case] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?”32 This limitation indicated that, more than the specific qualities of the particular case, a desire to evaluate capital punishment influenced the Supreme Court’s decision to review the case.
Their eventual decision indicated that the Court’s task was evaluation, not elimination, of capital punishment. The Court’s decision reversed the death sentence of the defendant in each case (two additional cases were considered alongside Furman), effectively disarming the death penalty (although only temporarily). Such a sweeping and dramatic decision required much explanation, as demonstrated by the fact that all nine justices
30 Marvin E. Wolfgang and Marc Riedel, “Racial Discrimination, Rape, and the Death Penalty,” in The Death Penalty in America, ed. Hugo Adam Bedau (Oxford: Oxford University Press, 1982), 194-205, 201. 31 The Fourteenth Amendment has often been at the center of arguments against the death penalty in the past thirty years. Opponents of capital punishment argue that the death penalty is applied discriminatorily and is therefore unconstitutional. However, because Eighth Amendment jurisprudence is more applicable to the Atkins ruling, I will focus on its development. 32 Furman v. Georgia, 408 U.S. 238, 29 June, 1972.
21 Burke 22 issued either concurring or dissenting opinions. The main arguments used in such a significant opinion deserve to be noted here before analyzing the overall trend.
The five concurring opinions varied in their condemnation of capital punishment.
Justices Brennan and Marshall found here (as they did in several other cases as part of the minority) that capital punishment in all cases should be abolished in accordance with the
Eighth Amendment. At the other end of the spectrum, Chief Justice Burger and Justices
Blackmun, Powell, and Rehnquist disagreed with the opinion of the Court and argued to uphold the death penalty. The arguments forwarded by the slim majority invited a response from state legislatures. For example, Douglas (concurring) argued that the death penalty was cruel and unusual punishment due to the discriminatory nature of its application under discretionary statutes (in which juries had full discretion over whether or not to impose the death penalty). These statutes provided little or no guidance for juries when determining who deserved the death penalty (such as acceptable aggravating and mitigating circumstances). The result was often an arbitrary sentence which lacked any discernable justification for why one defendant deserved death more than another.
When combined with the data cited above, which found that African Americans were executed disproportionately often, there was a troubling lack of consistency. This concern appeared in every concurring opinion, with each justice according it varying degrees of importance.
As the basis for finding capital punishment unconstitutional, this clearly leaves open the possibility of a revised statute. If the weakness of the practice lies in the lack of guidelines for application, the creation of such guidelines would solve the problem.
Although Brennan and Marshall disapproved of capital punishment on a fundamental
22 Burke 23 level, the remaining justices left that question conspicuously untouched. The narrow majority also meant that addressing common concerns and persuading even a single justice would be sufficient to overturn Furman in future challenges. Unguided jury discretion, as demonstrated by discriminatory application of capital punishment, was a common flaw noted by the majority and would therefore become a focus in post-Furman legislation.
Although Furman’s primary impact was to require guidance of jury sentencing discretion, additional arguments were offered by each concurring opinion in support of the decision. Using Weems as precedent, Justice Brennan argued that the “cruel and unusual” clause must evolve in order to retain the intended meaning and effect.
Reference to the “evolving standards of decency” argument was also made by Justice
Marshall in his opinion. Both Justices used this legal principle along with evidence of what they believed was a societal consensus. “A violation of the Eighth Amendment,”
Marshall noted, “is totally dependent on the predictable subjective, emotional reactions of informed citizens.”33 This authorized him to consider the arguments and rule according to what he believed the public would decide (without, significantly, the support of opinion polls or any objective evidence).
Another common argument questioned the contribution made by capital punishment to the goals of punishment. Justice White, while hesitant to categorically reject the death penalty, felt that its infrequent imposition weakened its deterrent value and made it, therefore, unnecessarily cruel. Justice Marshall extended this argument and questions the necessity of capital punishment in achieving any of the purposes of punishment. Although it may be effective as a deterrent, we cannot “ever know how
23 Burke 24 many people have refrained from murder because of the fear of being hanged.”34
Furthermore, the brutalizing effect capital punishment has on a society persuaded
Marshall to discount its deterrent value. Opponents of capital punishment have suggested that legally sanctioned executions promote violence, perhaps even murder, by devaluing life. Marshall apparently believes that this brutalizing effect would promote violence as much or more than it would deter it.
The four dissenting opinions offered in this case reinforced the precarious nature of the ruling. Four Justices (Burger, Blackmun, Powell, and Rehnquist) opposed the ruling as an excessive use of judicial authority. Furthermore, argued Burger, deterrence need not be demonstrated in order for a punishment to be acceptable. The Eighth
Amendment prohibits “cruel and unusual” punishment but says nothing of unnecessary punishment. Therefore a strict constitutional interpretation would not find fault in a punishment that does not achieve a deterrent effect. Burger extended this argument to lesser punishments, questioning the deterrent effect of a parking ticket in an attempt to demonstrate that, despite a lack of empirically verifiable evidence of deterrence, we choose to punish. He clearly preferred for legislatures to make their own decisions about capital punishment, rather than courts. Justice Powell and Justice Rehnquist also offered dissenting opinions in favor of judicial restraint, i.e., leaving the legislating to legislatures.
Justice Blackmun’s dissenting opinion, it should be noted, disagreed primarily with the determination that, in the (relatively) short time since similar challenges, a clear
33 Ibid., Marshall, J., concurring opinion. [emphasis added] 34 Ibid., Marshall, J., concurring opinion.
24 Burke 25 consensus had developed.35 His opinion expresses no sympathy for death penalty retentionists, but finds the sudden reversal that Furman represents legally ungrounded.
“Although personally I may rejoice at the Court’s result, I find it difficult to accept or justify as a matter of history, of law, or of constitutional pronouncement.”36 Like Burger,
Blackmun places the burden on legislators to approve or disapprove of capital punishment, according to public opinion. Blackmun’s dissent hints that legislation is the acceptable indication of a developing standard of decency, although he does not explicitly state this.
It can be inferred from these opinions that the ruling was not expected to abolish capital punishment indefinitely. Instead, they indicate that Furman served as a judicial reminder to state legislatures that they must continually revise, refine, and update their capital punishment statutes as courts revised and refined their constitutional interpretations AND as society evolved. In any case, the Furman ruling demanded that the death penalty be applied carefully and equally. This demand was emphasized by the effective prohibition of capital punishment. The justices refused to allow a flawed system to administer capital punishment. This dramatic display may have immediately begun its own undoing by awakening death penalty advocates. The justices had indicated what, precisely, was unacceptable about the current administration, and advocates moved quickly to correct the flaws.
35 Referring to a string of death penalty challenges, Blackmun wrote: “we convince ourselves that we are moving down the road toward human decency; that we value life even though that life has taken another or others or has grievously scarred another or others and their families; and that we are less barbaric than we were in 1879, or in 1890, or in 1910, or in 1947, or in 1958, or in 1963, or a year ago, in 1971, when Wilkerson, Kemmler, Weems, Francis, Trop, Rudolph, and McGautha were respectively decided.” 36 Ibid., Blackmun, J., dissenting opinion.
25 Burke 26
Just four years after the Furman ruling (about the amount of time states require to react to Supreme Court rulings and adapt their legislation), Gregg v. Georgia challenged a revised death penalty statute.37 Georgia, in response to the Furman ruling, had restructured the system of capital trial and sentencing in such a way as to avoid the capriciousness found unacceptable by Furman. The revised Georgia death penalty statutes included a bifurcated trial, which separated the guilt phase from the sentencing phase. It required the presence of at least one of ten specific aggravating circumstances, such as prior criminal convictions and the particular atrociousness or cruelty of a crime.
Finally, the revised statute required automatic review of all death sentences to ensure the trial had been conducted properly. With the addition of these precautionary devices, the
Supreme Court in their Gregg v. Georgia decision upheld the Georgia death penalty statute and opened the door for other states to legislate similar revisions. Some of the deeper concerns, secondary in the Furman ruling, had been decisively eliminated from consideration:
Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. […] The legislatures of at least 35 states have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person.38
A massive demonstration of death-penalty support had occurred since the Furman ruling and this disabled any argument that a national consensus had developed against capital punishment. The fact that thirty-five states had acted, in such a short time, to revive the death penalty was clear and irrefutable evidence that the public, as represented by state legislatures, wanted capital punishment in some cases. Gregg reestablished a
37 Gregg v. Georgia, 428 U.S. 153, 2 July, 1976.
26 Burke 27 strengthened death penalty that required consideration of aggravating circumstances. In addition to affirming consideration of aggravating factors, the Supreme Court demanded that sentencing include consideration of mitigating factors.
Jurek v. Texas and Woodson v. North Carolina were decided alongside Gregg.39
In Jurek, the Texas death penalty statute was upheld because it properly considered aggravating and mitigating factors, thus avoiding the Furman prohibition against mandatory death sentences that fail to consider the individual human dignity of the convicted. North Carolina, however, had not developed such a system of review and therefore, in the Woodson ruling, their death penalty statute was found to be cruel and unusual punishment in violation of the Eighth Amendment. Capital punishment sentencing required “consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.”40 The Supreme Court would allow capital punishment, but only after careful review determined that the criminal fit certain criteria, which varied slightly from state to state. This principle was reaffirmed in Lockett v.
Ohio.41 In order for sentencing to be constitutionally acceptable it had to consider the individual characteristics of the crime and the criminal, such as the aggravating factors discussed above and mitigating factors such as mental or emotional distress. This consideration makes the eventual sentence less arbitrary because it tailors the ruling to the case. The Lockett ruling also noted that the absolute irrevocability of capital punishment “underscores the need for individualized consideration as a constitutional
38 Ibid. 39 Jurek v. Texas, 428 U.S. 262, 2 July, 1976; Woodson v. North Carolina, 428 U.S. 280, 2 July, 1976. 40 Woodson. 41 Lockett v. Ohio, 438 U.S. 586, 3 July, 1978.
27 Burke 28 requirement in imposing the death sentence.”42 Care needed to be taken to ensure that the right criminals were being punished for consistent reasons if capital punishment were to have any legitimate retributive value or deterrent effect.
Again, after establishing general guidelines the Supreme Court would be asked to define and refine their Eighth Amendment rulings. Gregg gave judicial approval to the practice of capital punishment in general and, along with Jurek, Woodson, and Lockett, began to describe the necessary elements of acceptable capital sentencing. Once these rulings had established stable death penalty statutes in the states that wanted capital punishment, more specific challenges began to appear. Ford v. Wainwright (1986) raised the issue of executing criminals with a mental disorder (the insane).43 The defendant in this case showed no signs of insanity during his trial or sentencing and he was subsequently convicted and sentenced to death. Although his guilt and his competency for trial were not questioned, his competency for execution was. The Supreme Court reversed the death sentence on the grounds that, due to questionable retributive and deterrent value and general barbarity, the execution of the insane violated the Eighth
Amendment.44 The opinion of the court found it clearly appalling “to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implication.”45 The wording of this phrase indicates potential relevance to the question of executing those with other cognitive impairments, such as mental retardation. However, the primary justification given in the Ford ruling was that execution of the insane was unacceptable at the time the Eighth Amendment was ratified
42 Ibid. 43 Ford v. Wainwright, 477 U.S. 399, 26 June, 1986. 44 Ibid. 45 Ibid.
28 Burke 29 and therefore obviously fell within the category of “cruel and unusual punishments.”
Simple abhorrence at the thought of executing a certain individual, therefore, is not sufficient to find that execution unconstitutional.
Three years later the first of two landmark cases on the execution of the mentally retarded appeared. From a common sense interpretation of the Eighth Amendment the courts had developed a relatively complex set of extensions of the simple phrase “cruel and unusual punishment.” The enhanced form of the Eighth Amendment, in addition to prohibiting torture, demanded that punishments be proportional to crimes, a relation informed by “evolving standards of decency.” Further, capriciousness of punishment should be avoided by required consideration of the individual aspects of crime and criminal. Within this understanding of constitutionally acceptable capital punishment, there still existed a great deal of ambiguity. One such area of particular uncertainty was the capital punishment of criminals with mental retardation. Despite developing medical understanding of the condition there existed a void in corresponding jurisprudence. The
Supreme Court agreed to address this void in Penry v. Lynaugh.
John Paul Penry was charged with the rape and murder of Pamela Moseley on
October 25th, 1979. Although he was deemed competent to stand trial, Penry’s mental age was determined to be equivalent to that of a six-year-old child. This classifies Penry as mildly to moderately mentally retarded. Penry’s lawyers presented evidence of his mental impairment during his trial as an insanity defense but the jury found him guilty of capital murder. During the sentencing phase of Penry, the jury was instructed to consider certain aggravating factors before determining a sentence, as required by Lockett and others (see above). However, the trial court refused to instruct the jury about how to
29 Burke 30 weigh the mitigating factors, such as Penry’s mental state and his history of being abused as a child. Following these instructions, the jury determined that the aggravating factors were relevant and sentenced Penry to death.46
Penry’s appeal made two points: 1) the jury was not given instructions for weighing the mitigating factors in their sentence, so the sentence they produced violated
Penry’s right to be sentenced according to the aggravating and mitigating factors of his particular case, and 2) it is cruel and unusual punishment to execute criminals with mental retardation. The U.S. Supreme Court reviewed the case but produced a mixed ruling. They ruled that the failure to allow the jury to give weight to the mitigating factors of the case violated the guidelines established by Lockett, Woodson, and others.
Therefore, Penry’s sentence was overturned and remanded to the lower court for re- sentencing. However, “the Eighth Amendment does not categorically prohibit the execution of mentally retarded capital murderers of [Penry’s] reasoning ability.”47
The court’s opinion suggested that proper safeguards already existed in the form of insanity defenses. Indeed, Penry had attempted to plead insanity, forcing the jury to consider the possibility that he possessed a lesser degree of awareness and therefore of culpability; the jury’s rejection of this argument indicated that he was, in fact, sufficiently responsible. Arguments that people with mental retardation were less culpable could be established during the presentation of mitigating evidence at sentencing. Finally, and most importantly, the court did not find “sufficient objective evidence today of a national consensus against executing mentally retarded capital murderers.”48 As the Gregg ruling demonstrated and the Penry ruling stated, legislation is “an objective indicator of
46 Penry v. Lynaugh, 492 U.S. 302, 26 June, 1989. 47 Ibid.
30 Burke 31 contemporary values upon which a court can rely.”49 At the time of the Penry ruling, only two states specifically prohibited the execution of mentally retarded criminals: clearly not a consensus among death penalty states. Penry’s specific sentence was overturned but the execution of the mentally retarded remained essentially untouched.
Although the Penry ruling acknowledged concerns about executing such criminals, it dismissed these concerns based on the adequate precautions in place and the apparent lack of national consensus. It would be thirteen years before the court was willing to revisit the issue.
Daryl Renard Atkins was convicted of the kidnapping and murder of Eric Nesbitt, a 21-year-old Air Force airman. Atkins and an accomplice abducted Nesbitt from a convenience store, drove to an ATM and forced him to withdraw $200, then proceeded to a remote area. There Atkins shot Nesbitt eight times, killing him. Atkins was tried and convicted of abduction, armed robbery, and capital murder. During the sentencing phase of his trial, Atkins presented testimony from a forensic psychologist who expressed the belief that Atkins, with an IQ of 59, was “mildly mentally retarded.” In response, the state called another psychologist who testified that Atkins was of “average intelligence, at least.” The jury evidently agreed with the latter and sentenced Atkins to death.50
On appeal, Atkins contended that execution of the mentally retarded was unconstitutional. Although lower Virginia courts upheld the original ruling, some justices expressed concerns about the practice of executing criminals with some level of mental retardation. These concerns helped convince the U.S. Supreme Court to review
48 Ibid. 49 Ibid. 50 Daryl Renard Atkins v. Virginia, 536 U.S. 304, 20 June, 2002.
31 Burke 32 the case and “revisit the issue that we first addressed in the Penry case.”51 The Atkins case fit the criteria that would allow it to serve as a representative for all such cases. In
Daryl Renard Atkins v. Virginia the Supreme Court would answer the question: “Are executions of mentally retarded criminals ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?”52 They answered ‘yes’ on the following grounds:
1) Since the Penry v. Lynaugh decision, a large number of states had enacted
prohibitions against executing criminals with mental retardation, no states had
moved to accept such executions, and, in states that still allowed them, such
executions had become rare.
2) Polling data supported the conclusion that a national consensus had
developed.
3) Deficiencies common to people with mental retardation, such as impaired
reasoning and understanding, “diminished such persons’ culpability,” which
consequently weakened arguments for the retributive and deterrent
justifications for punishment.
4) These deficiencies also subjected such persons to a greater risk of wrongful
conviction and/or execution.53
Essentially, the primary justification for their ruling was the developing national consensus. This consensus was not a predicted or expected one (as Marshall used in
Furman), but a verifiable trend in legislation, representative of the will of the people.
The secondary arguments, such as the diminished culpability of people with mental retardation, had been presented in Penry and served only to support other arguments.
51 Ibid., Opinion of the Court, p. 5. 52 Ibid., Syllabus, p. 1.
32 Burke 33
The opinion of the Court connected these concerns by arguing that legislatures had considered the secondary arguments and “the consensus reflected in those deliberations informs our answer to the question presented by this case.”54
Convincing evidence of this consensus was therefore the key element of the appeal (and, as a result, the main point of contention in the dissenting opinions). In the opinion of the Court, Justice Stevens suggests that the Penry ruling brought increased national attention to the issue and influenced the legislation that began to appear in subsequent years. The year after the Penry ruling, and apparently in response to it, legislatures in Kentucky and Tennessee moved to prohibit the execution of the mentally retarded. Similar legislation had passed in another 14 states, bringing the total number of such states to 18. When considered as a percentage of the number of states that allow capital punishment in any form (38), the opposition to capitally punishing people with mental retardation looks substantial. When added to the states that oppose capital punishment outright (12), a clear majority of thirty states opposed the practice of capitally punishing criminals with mental retardation. The legal justification does not require consideration of the social movements behind the consensus, only evidence that the consensus exists. Justice Stevens also gave special weight to the fact that such a significant swing had occurred in only 13 years since Penry. Based on this, the majority of the court concluded that, once legislatures addressed the issue, they expressed a consensus in their rejection of the practice.
As in most landmark decisions, although the majority came to a decision, several justices held fast to dissenting viewpoints. Justice Rehnquist submitted a dissenting
53 The author’s summary of ibid. 54 Ibid., p. 1 of the Opinion of the Court.
33 Burke 34 opinion that disagreed with the justification used in the opinion of the Court. The majority ruling, he and Justice Scalia argued, “more resembles a post hoc rationalization of the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency.”55 His opinion then criticizes the Court’s consideration of opinion polls and foreign laws as without legal precedent and irrelevant.
These pieces of evidence, at best, indicate the possible presence of a national consensus.
However, because their validity has not been clearly established, they should not even be considered alongside legislative evidence. The potential for bias that exists in any survey makes it an imperfect indicator of public opinion. Rehnquist chooses not to address the veracity of the claim of consensus and objects, on a more basic level, to the evidence permitted by the court for consideration. Justice Scalia’s separate dissenting opinion proclaims: “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.”56 Scalia, in addition to decrying the weight given to opinion polls, questions the existence of a national consensus in legislation. “The Court
[…] miraculously extracts a ‘national consensus’ forbidding execution of the mentally retarded […] from the fact that 18 States—less than half (47%) of the 38 States that permit capital punishment” prohibit such executions.57 The thrust of both dissenting opinions in this case is against the purported national consensus and the evidence offered for its existence.
The Atkins ruling clearly hinged on the perception of a national consensus and the decision to give weight to factors other than simple legislative majority, such as
“consistency of the direction of change.” However, Justice Scalia’s dissenting opinion
55 Atkins, Rehnquist, p. 1 of his dissenting opinion. 56 Atkins, Scalia, p. 1 of his dissenting opinion.
34 Burke 35 raises an objection that is especially relevant to this thesis: “The genuinely operative portion of the opinion, then, is the Court’s statement of the reasons why it agrees with the contrived consensus it has found.”58 Looking past the vehement language used by Scalia, there is evidence of a fundamental division among the Justices of the Supreme Court.
Scalia’s statement accuses some members of the Court of considering moral arguments in their deliberations, an unforgivable error in his eyes. This hints at the existence of that which we seek here: a direct connection between morality and law. In the next chapter we will scrutinize the Atkins majority opinion, keeping in mind its legal precedents, to investigate Scalia’s accusation and reveal the connection between the ruling and the moral theories of punishment offered in Chapter One.
57 Ibid., 5. 58 Ibid., 12.
35 Chapter Three: Relations between Law and Morality
Justice Scalia’s dissenting opinion in the Atkins ruling speaks harshly of the improper moral consideration that he claims is the “genuinely operative portion of the opinion [of the majority].” Scalia’s accusation is legally worrisome if true and morally worrisome if false. This chapter will examine the merits of Scalia’s claim and, in doing so, reveal one important connection between moral arguments and legal decision making.
To briefly review the previous chapter, the primary justification for the Atkins ruling was the perceived national consensus opposing the execution of persons with mental retardation. This consensus was reflected in state and federal legislation and supported by polling data, all of which presumably reflected the public’s decision on the underlying moral debate. Once the Supreme Court was persuaded that a national consensus existed, they declared the practice of executing mentally retarded persons unconstitutional. The Court had this ability according to an interpretation of the Eighth
Amendment that defines “cruel and unusual punishment” according to “evolving standards of decency that mark the progress of a maturing society.” The consistent direction of change in legislation helped emphasize the strength of the consensus.
Although the “objective indicia” of legislation established the constitutional basis for the ruling, it also connected it, indirectly but clearly, to the moral debate. The opinion of the Court was structured in a revealing way: it first discussed the evidence of a consensus, then the support for that evidence found in polling, then finally the inferred basis for the demonstrated consensus. The first and most important issue in the decision was that a national consensus actually existed. Public opinion is clearly used as an indirect link to the moral debate. Justice Stevens articulates the opinion of the Court by Burke 37 briefly noting the reasons that mentally retarded persons “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”59 He continues, “Presumably for these reasons, in the 13 years since we decided Penry v.
Lynaugh, 492 U. S. 302 (1989), the American public, legislatures, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal.”60 This comment linked the primary justification for the ruling (public opinion) to the moral debate. Although the Court was charged only with determining whether executing the mentally retarded violates the Eighth Amendment, their interpretation of the Eighth Amendment asks them to consider the national status of the moral debate. The use of legislation as an indicator of public opinion is well established in case law. The Court also made reference to various other pieces of evidence and it was to these additional considerations that Scalia and Rehnquist objected.
The opinion of the Court expressed the view that “this consensus unquestionably reflects widespread judgment about the relative moral culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty.”61 Although this notes a very logical connection that is probably valid, it appears to give legal weight to assumed moral arguments.
If this is the case, Scalia’s objection is a strong one: the Court is meant to interpret the constitution and lacks the authority to make judgments based on moral arguments.
Indeed, justices have often concurred with rulings while noting their personal abhorrence of capital punishment on the grounds that they are not charged with moral evaluation, but with legal and constitutional interpretation. The more conservative justices have often
59 Atkins, opinion of the Court, 1. 60 Ibid.
37 Burke 38 noted their belief that legislatures, not courts, should respond to changes in public opinion. This issue is clouded by such phraseology as the Eighth Amendment’s prohibition of “cruel and unusual punishments,” which seems to invite moral debate.
However, Eighth Amendment jurisprudence consistently strives to interpret these terms objectively and according to wider gauges than the personal judgments of nine justices.
As Justice Blackmun argued in his dissenting opinion in Furman, “Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges.”62 The Court is supposed to determine what current “standards of decency” appear to be, based on legislative consensus, not what they believe they should be.
Although noting the connection between a national consensus and moral debate is legally acceptable, proceeding to discuss the moral debate as a basis for the ruling lacks strict legal precedent.
Although moral arguments do not contribute to the legal/constitutional validity of the ruling, the inclusion of these arguments allows the ruling to avoid indifferent amorality. As an important decision on a difficult moral problem, consideration of the utilitarian and retributive positions seems all too appropriate. For this reason, the Atkins ruling closed with a discussion of the moral arguments that, in the Court’s view, underlay the developing consensus. Having established the constitutional basis for their ruling
(legislative consensus), the majority then attends to the moral reasoning behind the developing consensus. The argument for a national consensus does double duty: it establishes the legal justification for the ruling and refers to the status (and arguments) of
61 Atkins, opinion of the Court, 13. 62 Furman, Blackmun, J., dissenting opinion.
38 Burke 39 the moral debate. Without opening what could be a lengthy tangent on the constitutional purpose of the Supreme Court, we can see that such moral consideration is an extension of their usual role of interpreting the constitution. Strictly speaking, the current interpretation of the Eight Amendment would only allow the Court to consider whether or not a consensus existed; they go beyond this when they discuss how the moral arguments support their decision.
However, from a moral-philosophical perspective, this justification is obviously crucial. The opinion of the court devotes its final section to the exclusive discussion of penological principles which are the heart of the utilitarian and retributive theories.
Justice Stevens (the author of the opinion) notes first that “mentally retarded persons … have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.”63 These qualities 1) reduce the relative culpability of persons with mental retardation and 2) make them more vulnerable to wrongful conviction.
The reduced culpability of persons with mental retardation speaks directly to the retributivist. One who argues that the criminal should be punished simply because they deserve it depends heavily on the attribution of full personal culpability. In other words, if the criminal is to be punished in proportion with the wrong they committed, we must carefully determine the extent of the wrong they committed. Hegel acknowledges the importance of mitigating factors, specifically setting aside “children, imbeciles, and lunatics.”64 Even the strict Kantian approach leaves room for negotiation. Kant demands
63 Atkins, Opinion of the court, 13. 64 G.W.F. Hegel, Philosophy of Right, trans. T.M. Know (London: Oxford University Press, 1952), 88.
39 Burke 40 that rational beings be treated as such and punished for their crimes. However, it may be argued that persons lacking certain cognitive capacities fall short of being “rational humans beings.” Hegel’s development of this theme seems logical and provides the only satisfying completion of Kant’s position. To follow Kant without exception and punish
“infants and imbeciles [persons with mental retardation]” alongside conniving serial killers seems intuitively wrong. The public opinion polls noted in the Atkins ruling support this conclusion, revealing that the general public has an aversion to the practice.
Many people share Hegel’s reservations about the propriety of executing less culpable persons. We execute criminals because as rational human beings they have chosen to submit themselves to the will and laws of the state. If this is the case, surely those who lack the ability to fully submit themselves lack the culpability to be punished accordingly.
Recall Jeffrey Reiman’s “retributivist principle”: “The equality and rationality of persons imply that an offender deserves, and his victim has the right to impose on him, suffering equal to that which he imposed on the victim.”65 Although we must demand that persons with mental retardation receive humane and just treatment, the relevant consideration here is their relative culpability. Experts on mental retardation have consistently concluded that they are lacking in the relevant abilities.66 Justice Stevens’ opinion offers some meager legal precedents along these lines, but it is the clear statements of moral belief that make his ruling morally satisfactory.67 Even the strict retributivist, if s/he is to
65 Jeffrey Reiman, “Why the Death Penalty Should be Abolished in America,” in The Death Penalty: For and Against, Louis P. Pojman and Jeffrey Reiman (Lanham, Maryland: Rowman and Littlefield Publishers, 1998), 92. 66 James W. Ellis and Ruth Luckasson, “Brief of American Association on Mental Retardation et al. as Amici Curiae in Support of Petitioner in re Johnny Paul Penry, Petitioner, v. James A. Lynaugh, Director, Texas Department of Corrections, Respondent,” in The Criminal Justice System and Mental Retardation: Defendants and Victims eds. Ronald W. Conley, Ruth Luckasson, and George N. Bouthilet (Baltimore: Paul H. Brookes Publishing Co., 1992), 245-278. 67 Atkins, Opinion of the court, 14-15.
40 Burke 41 maintain a thoughtfully considered position, must weigh mitigating factors in determining desert and therefore cannot advocate full punishment of partially culpable individuals.
Stevens next addresses the relevance of deterrence to mentally retarded capital criminals. Just as the characteristics of mental retardation limit moral and legal culpability they also limit the efficacy of deterrence. Stevens notes that in Enmund v.
Florida, 458 U.S. 782 (1982), the court maintained: “it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation.’” Along with being a practical argument concerning the efficacy of punishment, this point carries moral weight according to the utilitarian position. If deterrence is a good that gives moral justification to punishment, the absence of deterrence means the absence of a substantial good. Although utilitarian evaluation will forever include some guesswork about the possible effects of a practice, the absence of a particular good is established in this instance. Those who cannot consider the consequences of their actions cannot be deterred by anticipation of those consequences, whatever they may be. Furthermore, failing to execute a particular group will not weaken the deterrent effect in general.68 The practical problems accompanying this statement are cause for concern, but in terms of justifying the practice they are secondary considerations.69 “Thus,” Justice Stevens concluded, “executing the mentally retarded will not measurably further the goal of deterrence.”70
68 This statement is dependent on the establishment of a clear, sharp definition of the exempted group such that individuals outside that group will not be able to seek refuge within it. 69 Difficulties include the clear definition noted above (footnote 7), the consistent determination of mental retardation, and the communication of this distinction to potential offenders. These difficulties lie in the successful application of a utilitarian conclusion, not its veracity. 70 Atkins, opinion of the Court, 15.
41 Burke 42
The final consideration noted by Stevens is the increased risk of wrongful conviction and execution. According to experts, persons with mental retardation are often ashamed of their condition and eager to hide it. They will strive to please authority figures, even if this means incriminating themselves.71 The clear and troubling consequence is that they will manufacture confessions in an effort to please, thereby condemning themselves to undeserved punishment. Extraordinary examples of this occurrence exist, such as the case of David Vasquez. The following is one brief but startling excerpt from Vasquez’s police interrogation:
Detective 1: Okay, now tell us how it went, David-tell us how you did it. Vasquez: She told me to grab the knife, and, and, stab her, that's all. Detective 2: (voice raised) David, no, David. Vasquez: If it did happen, and I did it, and my fingerprints were on it.... Detective 2: (slamming his hand on the table and yelling) You hung her! Vasquez: What? Detective 2: You hung her! Vasquez: Okay, so I hung her....72
Vasquez subsequently pled guilty and served five years of a thirty-five year sentence before being pardoned when the true murderer was discovered.73 Such astonishingly blatant examples of authority figures leading pliant individuals to confessions are not uncommon. Moreover, their deficiencies can make mentally retarded individuals inept at assisting their legal representation, providing unreliable and contradictory testimony. At every stage of the criminal justice system persons with mental retardation, guilty or innocent, are at particular risk. They have, in some cases, waived rights they clearly did not understand. “Eddie Mitchell, a retarded man on death row in Louisiana, waived all
71 Rosa Ehrenreich et al., Beyond Reason: The Death Penalty and Offenders with Mental Retardation, Human Rights Watch, 13, no. 1(G) (March 2001): http://www.hrw.org/reports/2001/ustat/ustat0301- 01.htm#P206_25341, visited 4 February 2003. 72 Dana Priest, "At Each Step, Justice Faltered for Virginia Man," Washington Post, July 16, 1989. Quoted in Ehrenreich, http://www.hrw.org/reports/2001/ustat/ustat0301-03.htm.
42 Burke 43 his rights during his interrogation. But when an attorney asked him if he had understood what ‘waiving his rights’ meant, Mitchell raised his right hand and waved.”74 Juries can also misread behavior during trial as suspicious or guilty and convict based on otherwise insufficient evidence. The act utilitarian may not be concerned with these potentialities
(if guilt is eventually established) but the rule utilitarian cannot ignore them. A rule that can be expected to produce unreliable and undesirable consequences cannot be in the interest of ‘the greatest good.’ Stevens concluded that because mental retardation often goes undetected, it is not considered by judges and juries as a seriously mitigating factor.
This additional consideration joins the accumulating pile of reasons why executing the mentally retarded is not only legally but morally unjustifiable. Indeed, these arguments make even the incarceration of persons with mental retardation a morally questionable practice. However, because “death is different” in its severity and irrevocability, capital punishment becomes a more pressing concern.
The fundamental moral considerations of retributivism and utilitarianism are clearly present in the Atkins ruling. Rehabilitation and prevention are not addressed in the opinion of the Court. Rehabilitation is irrelevant in capital cases and apparently impossible if the criminal weakness is mental retardation, and prevention would be adequately served by lifetime incarceration. Remember that, according to the court, the deficiencies of persons with mental retardation “do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.”75 By addressing the retributivist and the utilitarian, Justice Stevens augments the constitutional justification
73 Ehrenreich. 74 Human Rights Watch interview with Clive Stafford-Smith, Executive Director, Louisiana Crisis Assistance Center, New Orleans, La., May 19, 1999. Quoted in Ehrenreich. 75 Atkins, opinion of the Court, 14.
43 Burke 44 with solid moral justification. Justice Scalia may object that this is legally inappropriate, but it is morally necessary.
The moral arguments support the outcome of the ruling, but do they support the consideration of a ‘growing national consensus’ as justification for a ruling? Clearly the retributivist will object to the Court’s consideration of a trend (or even a majority) in public opinion, as it is irrelevant to the culpability of the criminal. Whether the public approves of it or not, the criminal deserves punishment. Note that, at this point, I am only addressing the retributivist view of using consensus as justification for not punishing. According to the principles explained in chapter one, retributive punishment depends only on the culpability of the criminal, not the opinion of the citizenry.
Therefore, despite any amount of public disapproval, just punishment remains just.
However, as noted above, the moral considerations given in the second half of the opinion of the court weaken the retributive position. Persons with mental retardation have deficiencies that limit their culpability.
Utilitarians agree with prohibiting the execution of the mentally retarded (see above), but they also find little comfort in the use of public opinion as a primary justification. Considered on its own, making the law agree with public opinion is a good and therefore worthy of consideration. However, while the retributivist ignores all factors other than guilt, the utilitarian demands that we consider many other factors in addition to guilt. Neither the opinion of the Court nor the dissenting opinions in the
Atkins ruling expressed support for executing people with mental retardation. The opinion of the Court clearly opposes it and the dissenting opinions ask only that the decision be left to trial judges and juries. The disagreement is over how such executions
44 Burke 45 should be avoided. It seems to be tacitly agreed, even among the dissenters, that people with mental retardation, who do not understand what they are doing, are less culpable, morally and legally. Scalia objects to those borderline cases in which the defendant, though perhaps mildly retarded, understands the consequences of his/her actions. For this reason he prefers to leave the judgment to the judges and juries on a case-by-case basis.
This does indicate that the justices agree, at the very least, that punishment of the severely mentally retarded is not a desirable practice. This would lead the utilitarian to discard the practice of capital punishment in such cases, where society strongly disapproves. However, the utilitarian is primarily concerned with evaluating the deterrent effect of capitally punishing mentally retarded criminals. In this evaluation, a national consensus would be of minor importance compared to the major societal good or harm done by the practice.
Considered on its own, a national consensus does not provide moral justification for outlawing capital punishment of the mentally retarded. If it were the only justification offered in the Atkins ruling, the ruling would not be moral or immoral but simply amoral. It would be only a matter of constitutional interpretation and recognition of a developing standard of decency; this requires no moral judgment. The constitutional principles would be subject to moral review, but the ruling itself would simply be interpreting these principles.
Scalia and Rehnquist object that the moral justification present in the ruling is, in fact, the heart of the ruling. They argue that the majority sought a certain ruling and then construed the evidence in accordance with that ruling. Rehnquist opines:
… The Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner [Atkins] more resembles a post
45 Burke 46
hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency.76
Although it can be argued that the Court improperly factored moral arguments into their deliberation, it does not necessarily follow that these moral considerations were actually the primary basis of the ruling; the objection of Scalia and Rehnquist goes too far. The constitutional basis for the ruling remains the interpretation of the Eighth Amendment which requires deference to a national consensus as evidenced by legislation.77
Although the moral arguments are not the primary basis for the ruling, they are present. This answers the primary inquiry of this thesis: what significance do moral arguments have in judicial decision making? This ruling represents an attempt to merge two lines of argument that some prefer to keep completely separate. Scalia and
Blackmun, among others, see no place for moral consideration in jurisprudence. They seek to provide an indifferent evaluation of the constitutionality of the practice, leaving moral debate to legislatures and representatives. This alternative is an equally effective one. If the legislatures do their job diligently and conscientiously they will respond promptly to the will of the people. The courts will evaluate, as necessary, the resultant statutes to approve or reject them based solely on constitutional interpretation. The result if such a system worked properly would be nearly identical to our current situation: legislatures would outlaw the execution of criminals with mental retardation due to public disapproval. It should be noted that Scalia does not support the execution of mentally retarded persons whose deficiencies make them less morally and legally culpable. His objection is to the inclusion of moral considerations in judicial proceedings. This reveals
76 Atkins, Chief Justice Rehnquist, dissenting opinion, 1.
46 Burke 47 a fundamental decision that society must address: should judiciaries be amoral institutions?
Precedent generally argues in favor of an amoral judiciary. The courts have been charged with statutory and constitutional interpretation, not judicial legislation.
However, when confronted with a system that, for decades, failed to address flaws in the capital punishment system (until Furman) and the issue of punishing the mentally retarded (until Penry), the courts have responded in the only appropriate way. They have, when possible, made dramatic rulings in an effort to jump-start the process of legislative review and development. This concept of judicial activism is at the heart of the issue. If not for Penry and Atkins, would the immoral practice of capitally punishing persons with mental retardation still be allowed? Without any reason for a negative answer, I suspect it would. The abrupt changes made by rulings such as Atkins circumvent the years or decades of gradual process that would otherwise be necessary.
However, the introduction of morality into legal decision making sets a difficult and powerful precedent. With this new and growing power, courts are capable of making dramatic changes based on short-term trends and these may not always reflect the clear moral positions present in the Atkins case. They are also capable of overextending their power to instigate public debate and legislative reform. Furman might be considered an example of such overextension, given the quick, clear backlash to the ruling. The deeper answer may lie in a more effective legislative system, more responsive representatives, or a more vocal and active public. All of these are, unfortunately, deep-seated features that our system cannot quickly correct. In the absence of any such corrections, it falls to the
77 Scalia also argues that the evidence of a national consensus is weak, but, because the focus of this chapter is the connection between morality and law, I will not address this specific legal issue.
47 Burke 48 judiciary to exercise its power and affect meaningful change with the knowledge that, as witnessed after Furman, the public will respond. The role of the court as “legislative alarm clock” may not be within its original mandate, but as a valuable and otherwise unfulfilled purpose it should not be ignored.
One need not look far to find potential beneficiaries of judicial activism. As of the year 2000, the United States is one of only four countries that continue to execute juvenile offenders. The international community has consistently rebuked the United
States for its failure to address this issue. Opinion polls indicate that the public is slowly moving towards consensus against executing an offender who was under the age of 18 at the time of the crime. A recent CNN/USA Today/Gallup poll found 69 percent of
Americans oppose executing juveniles.78 However, twenty-two U.S. states still allow such executions and last year the Supreme Court refused to review the issue. It seems the legislative process designed to respond to the will of the people is again exhibiting reluctance to act. Richard Dieter, of the Death Penalty Information Center, tried to look on the bright side: “It would be counterproductive to force the issue… It may be a better thing for the issue to percolate, for states to ban executing minors on their own, instead of being forced to by the courts.” He also noted, “the issue then may not be revisited for a long time.”79 The Court has hesitated to exercise the power that made Atkins controversial and therefore allows the internationally embarrassing practice to continue.
Many of the same moral principles that justify the Atkins ruling can be applied (almost directly transplanted, in fact) to the issue of executing criminals who were under the age of 18 at the time of their crime. The moral evaluation yields similar disapproval of the
78 Bill Mears, “Supreme Court not ready to debate execution of juveniles,” CNN.com, 29 January 2003, http://www.cnn.com/2003/law/01/29/scotus.deathpenalty/, (17 March 2003).
48 Burke 49 practice. However, if morality is kept wholly out of the courtroom, such clearly unacceptable practices will survive long after public opinion turns against them.
79 Quoted in Mears.
49 Epilogue
After spending months considering this particular slice of the death penalty debate and the criminal justice system, my conclusions suggest several potential investigations to which I give insufficient attention here. A deeper examination of the social context of these rulings might reveal a significant, although subtle, influence at work. The justices of the Court are members of society and cannot help but perceive societal trends. These trends might have, at times, given the appearance of a developing moral consensus when they were in fact only part of a natural ebb and flow of opinion. I suspect social movements would be particularly successful in persuading the Court to accept certain cases. Moreover, the evolving practice of social activism that I briefly note above may have a close connection to the apparently recent phenomenon of judicial activism. This relationship might be clarified by examining the personal histories of individual justices for involvement in activist organizations or by revealing the use of Atkins and Furman- style judicial activism in other cases. If the Court did indeed approach these cases with the intent of influencing change through a dramatic display of judicial authority, tracing the sources of this intention is a worthy inquiry.
A second relevant issue on which I have been unable to focus is the developing conception of a “rational being” and normative behavior. This is briefly discussed in reference to persons with mental retardation. However, an historical account of what constitutes rational behavior and who has been considered less morally and legally culpable might reveal that it is anything but static. Culpability, like a publicly accepted definition of “cruel and unusual,” may be a flexible concept. According to Atkins, the nation now agrees that persons with mental retardation are less culpable; might we Burke 51 change our collective minds in a few decades? The flexibility of this legal definition calls into question the solidity of both the utilitarian and the retributive positions. If the possible deterrent effect of capital punishment becomes a more compelling interest than the possible wrongful execution of some people, the utilitarian position can shift.
Likewise, if our definition of mental retardation (itself a recent creation) becomes more restrictive, do persons currently considered insufficiently culpable lose that moral and legal status? Depending on our conception of normative behavior, the retributivist may find that different groups can or cannot be considered rational members of the state.
Exploration of these questions and issues could do much to weaken the traditional view of the law and morality as static or stable concepts. If our ideas about normative behavior are changing, surely the evolving standards of decency referred to in Atkins deserve as much consideration as the original intent of the framers.
Finally, this thesis moves too quickly over discussion of the Supreme Court’s constitutional purpose. I do discuss what it seems to be and what I think it ought to be
(after reviewing the Atkins case). A more comprehensive history of the Supreme Court and its given role would enable more conclusive responses to Scalia’s charge (in Atkins) and would reveal more about the presence and the propriety of judicial activism.
My original task was to examine the relationship between moral arguments and the law by focusing on a specific issue/case. This project reveals that, at least in the
Atkins ruling, the two are related in more than just an indirect way. Although the examination of one ruling and its moral and legal precedents cannot yield absolute conclusions, it has suggested some possible conclusions and many questions. I have touched on some of these, but as noted in this epilogue, many remain unresolved.
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