Catching up from Friday, the NYT fronted the
Atkins case, and noted in a separate article that the money shot of the majority opinion -- the declaration that "[a]s was our approach ... with regard to insanity, 'we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences'" -- leaves states having to "draft statutes establishing procedures to determine who is retarded." Expect vigorous legal wrangling as this new area of Constitutional law gets hammered out.
Pity the poor Supreme Court justice. It's tough to be a scintillating legal scholar for every day of the term; after all, how many interstate transportation cases does it take before they start blending together? Nonetheless, we expect certain cases, the one that are important, controversial, or both, to glitter like hard gems of jurisprudence. A shame, then, that the primary feeling one gets upon completing each of the opinions in Atkins is, "That's it?"
Atkins is presented by the majority as the logical extension of the Penry case, where the Court didn't rule out banning the execution of the mentally retarded under the "evolving standards of decency," but stated that a national consensus against the practice didn't yet exist. Neither of the dissenting opinions (by Rehnquist and Scalia) really go after the "evolving standards" doctrine -- though Scalia, whose opposition to the "living Constitution" is well known, vaguely waves his hand in that direction -- but they spend a lot of time trying to show that no national consensus can be demonstrated using the strictures laid out in Penry. What this really boils down to is a numbers game; both sides are trying to prove that a majority of states either support or oppose executing the mentally retarded. This, in turn, has the justices trying to figure out if a complete ban on capital punishment also means a particular horror for the execution of the mentally retarded. The majority says yes, but the two dissents are for all intents and purposes based on the assertion that a blanket ban is not the same thing. Rehnquist's dissent begins by stating that
"The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime."
Both dissents conveniently dance around the fact that (as Scalia puts it) the "less than
half (47%)" (emphasis in original) of the death-penalty states that ban execution of the mentally retarded are joined in that refusal by 12 states that ban executions entirely. Since neither dissent offers any explanation as to why we should ignore those states in looking for a national consensus, the force of their arguments don't buttress the bitter tone that suffuses both.
This doesn't mean that Stevens' majority opinion doesn't give the dissenters a lot of targets to cast stones at. It's a weak, limp-wristed piece of jurisprudence that doesn't defend itself against Scalia's charge of it being no more than "the feelings and intuition of a majority of the justices." In 17 pages of argument, the majority opinion boils down to, "some states have banned killing the mentally retarded, a lot of opinion polls say that most people feel the same way, and that's good enough for us."
Actually, it's not the majority's argument that there's an evolving consensus against executing the mentally retarded (I should have hotkeyed that phrase by now) that bothers me, although Stevens should have left footnote 21 ("Additional evidence makes it clear that this legislative judgment [against executing the ... well, you know] reflects a much broader social and professional consensus") out, since its flabbiness gave the dissenters the broad side of a barn to attack. What I take issue with is the larger practice -- by statute or case law -- of deciding that a particular class of people has limited culpability without recourse to the "individuated consideration" of judge or jury. There is a question of political philosophy -- by no means abstract -- that is raised when the state rules that a categorical dimishment of responsibility exists for a group simply by virtue of that group's characteristics independent of particular acts and situations. By limiting a group's culpability, the liberal state (as in post-Enlightenment liberal) also arrogates the power to limit that group's freedom to the extent that it is considered less responsible for its actions.
This argument is predicated on the traditional liberal view that there is a law of conservation of responsibility -- the idea that there is an inversely proportional relationship between freedom and responsibility. I admit that this is more of a guideline than an ironclad rule -- the overly rigid application of this concept leads to the most radical fallacies of libertarianism -- but it has a very practical basis that becomes evident when one is considering criminal law (rather than, say, welfare transfer payments). For example, most states consider children to be categorically less culpable for criminal acts than adults, but balance this reduction in responsibility with a concommitant reduction in freedom; children are required to have guardians, fulfill certain social obligations (such as attenting school), cannot freely enter into contracts or other legal relationships, and so on. Because children are not fully responsible for their acts, we reserve for ourselves as society the right to limit their ability to act. By the same token, if society has decided to limit the freedom of an individual, the state also must limit the culpability the individual has for his or her actions, because we have decided that they are not competent to care for themselves to a certain degree.
Since children do not by definition remain in this state of legal suspension, the fact that we limit the freedom of children doesn't pose any grave philosophical issues (excepting certain cases involving free speech and the like). But when we decide to limit the responsibility of adults because they belong to a specific group, we are taking a great step that requires great justification. In the most extreme cases -- consider the case of a mentally retarded person who cannot care for him- or herself at all, resulting in the state placing the individual in a group home or other caretaker facility -- then the required justification is relatively easy to come by, along the same lines of the McNaughton rule or the MPC guidelines for handling insanity cases (the more controversial Durham rule opens up another can of practical and philosophical worms, so I'll leave it be for now). But in cases where there is not a prima facie requirement for state restraint of an individual's actions, the decision to limit culpability opens the door for the state to restrain the acts of an entire group without clear justification.
The majority opinion does very little to present a case that the mentally retarded as a group (not as individuals) should have limited culpability for their actions. The opinion states that:
"Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminshed 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. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability."
Nothing in this statement is objectionable when applied to a single individual, but the idea that each member of a class will always act in conformance with these statements -- that under no circumstance will a mentally retarded offender, knowing the criminality of his conduct, will plot and carry out the murder of another -- is not supported by the argument, and thus the court hasn't met what in my mind is the bar necessary to limit collective culpability. Scalia makes this point, arguing that "Once the Court admits ... that mental retardation does not render the offender morally
blameless ... there is no basis for saying that the death penalty is
never appropriate retribution, no matter
how heinous the crime." (Emphasis in original)
The majority also provides a novel justification for their decision when they argue that mentally retarded defendants may be more likely to be sentenced to death:
"The risk 'that the death penalty will be imposed in spite of factors which may call for a less severe penalty' ... is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. ... Mentally retarded defendants in the aggregate face a special risk of wrongful execution.
Scalia offers a typically tart rebuttal, saying "I suppose a similar 'special risk' could be said to exist for just plain stupid people, inarticulate people, even ugly people." It can also be said, with more (though less entertaining) justification, that the Court has created a claim upon which groups that are proportionately overrpresented on death row (and I'm thinking primarily of black Americans here) can argue that they should be exempted from capital punishment, at least until such factors can be fixed. That such a claim will ever be advanced in court is unlikely (though it has been made as an effective argument for the abolition of capital punishment
in toto), but its appearance in a majority opinion is striking.
The dissents are by and large pretty empty in their own right, though Scalia does get in a few good attacks. In addition to the numeric games discussed above, Scalia warns that capital defendants will "feig[n] mental retardation" in attempts to escape the death penalty. This is a weak argument, though popular amongst some conservative pundits; for it to be successful, juries would in most cases have to be pursuaded that such as thing as "late-onset mental retardation" exists. (If any juries are convinced by malingering convicts, I'd like to talk to them about Amway...) Rehnquist complains that the public opinion survey results submitted in an amicus brief didn't include methodology information. Though a fair complaint, Rehnquist spends a lot of time on what amounts to a legal peccadillo, far more than the issue really deserves. Both Scalia and Rehnquist also spend a lot of time lambasting the majority for taking opinion polls, the views of professional organizations, and the legislation of other nations into account. Again, a fair objection, but the majority opinion relegates those factors to a footnote, and states that "these factors are by no means dispositive," which takes much of the force from the dissenters' objections.
The predictably positive reception Atkins has garnered in the press does not address the serious philosophical issues raised. The New York Times argues that the 1989 Penry decision "turned a blind eye to the obvious -- that inflicting the death penalty on individuals with I.Q. scores of less than 70 who have very little understanding of their moral culpability violates civilized standards of justice" without noting that those individuals who might have the former handicap may not exhibit a lack of moral sensibility. The Times editorial also attacked the heart of Penry -- and, indeed, at least the trappings of the majority argument in Atkins -- by stating that "the question of what constitutes 'cruel and unusual punishment' is not one that is answerable solely by coldly analyzing opinion polls and surveying state legislatures. it inevitably engages the moral sensibility of the individual justices. Indeed, the court had no business in the first instance relying so heavily on public sentiment when deciding an issue of life or death involving condemned murderers, a segment of the population that by definition is not held in particularly high esteem." While the Times' sense of moral absolutism is praiseworthy in the abstract, it is not upheld by the case law to date.
Where we go from here is not entirely certain. The ruling leaves states to come up with definitions of mental retardation for the purposes of complying with Atkins, so we can expect a lot of political and legal wrangling as we go forwards. But the underlying question -- that of freedom and responsibility in a liberal society -- remains unasked, unanswered, and to a certain point, undone.
It used to be that humorless, strict campus officials worked to dismantle radical student organizations, but at the University of California at San Diego, the administration works with the most radical groups to fulfill their own objectives. UCSD has evidently been trying to shut down The Koala, a student humor magazine, and when the magazine attended and took photos at a public meeting of a radical student organization, the university offered to help the organization -- "MEChA, the Movimiento Estudiantil de Chicanos de Aztlan, which describes itself as 'a union of free pueblos forming a bronze nation'" -- file charges with the campus police. No, I'm not exaggerating.
The UPI article on this contretemps contains this jewel: "In 1996 MEChA called for the "liberation" of Aztlan, which it defines as the seven states of the U.S. Southwest -- California, Nevada, Utah, Arizona, Colorado, New Mexico, and Texas. In Article II, Section 1 of its constitution, MEChA defines "liberation" as the "self-determination of our people in this occupied state and the physical liberation of our land." Just the sort of people you want to team up with, if you're a California gringo.
Addendum: A MEChA information page is here, including a plan of action that includes a goal of creating a "nation autonomous and free - culturally, socially, economically, and politically - [that] will make its own decisions on the usage of our lands, the taxation of our goods, the utilization of our bodies for war, the determination of justice (reward and punishment), and the profit of our sweat." Dios mio!
Speaking of interesting excerpts, the Pennsylvania Supreme Court recently ruled that expert testimony isn't necessary to establish the presence of emotional damages in a medical malpractice case. That's hardly an exciting piece of news -- unless you're a civil trial attorney in Pennsylvania, I suppose -- but the law.com article on this case -- which is based on an unwanted penile implant, by the way -- has one of the most amusing pieces of testimony I've seen since Bill Gates first testified in the Microsoft antitrust case:
"I sure as hell don't feel like a man, I'll tell you that. I don't feel one bit like a man. I mean, I felt like half a man before because I had ejaculated early but I don't feel like no man, even half a man anymore because I go to pump this thing up. Like I told my wife, I feel like I am a machine."
Maybe it's just me, but I bet this guy was emotionally damaged
before he got the implant.
