The Supreme Court is on a rip against the death penalty, ruling last week that mentally retarded convicts can't be executed and this week that only juries, not judges, can decide the facts that justify imposing death. Neither decision appears to be very good law, but it's the former decision that takes the prize for bad logic and dangerous results.

Justice Paul Stevens wrote the decision in the 6-3 ruling in the case of Atkins v. Virginia, arguing that because in the last few years several states have outlawed the execution of mentally retarded convicts, therefore "it is fair to say that a national consensus has developed against it."

But in the first place, it's not clear that any such "national consensus" exists. Of the 38 states that allow capital punishment, 18 have laws that bar the execution of retardates. That means that 20 states do not have such laws. In other words, the majority of states that practice capital punishment have little or no problem with executing the mentally retarded. Those that do don't always agree as to who's retarded, how to tell, or who should decide. Hence, there is no "national consensus."

In the second place, it's by no means clear what a "national consensus" has to do with whether a practice is constitutional. If there were a "national consensus" that only certain ethnic minority members should be executed, would the Court uphold that? Fifty years ago, when the Warren Court played mumblety-peg with the Constitution, it routinely overrode the existing "national consensus" on a whole series of issues. Many of its decisions were legal garbage, but the whole point of having a Supreme Court composed of unelected judges who hold their seats for life is so they can defy "national consensus" when it violates the Constitution.

But Justice Stevens appealed to the Constitution as well, citing the Eighth Amendment's prohibition of "excessive" bail and fines and "cruel and unusual punishments." But this principle applies to the retarded only if you assume that their culpability in capital crimes is less than that of mentally normal criminals. Justice Stevens merely asserts that such is the case: "Because of their disabilities in areas of reasoning, judgment and control of their impulses, however, they [the retarded] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct."

In most cases involving retarded defendants, that's probably not true. It may be true in cases in which the defendant is so retarded he probably wasn't able to commit the crime at all, but in the case before the Court, of Daryl Renard Atkins, with an IQ of 59, it clearly was not true. Atkins with an accomplice kidnapped a man, robbed him at an ATM machine, and then, as Justice Stevens described the crime, "took him to an isolated location where he was shot eight times and killed." Atkins, in other words, was bright enough to know to try to hide his crime. How is he less culpable than any other murderer?

Of course, if the retarded are "less culpable" than normal people, why are they allowed to be free at all? They're still capable of murdering people, robbing them and causing all sorts of damage and injury. If they're just too dim to avoid doing so, they belong in institutions, not on the streets. Moreover, if mental retardates shouldn't be executed for the capital crimes they commit, why should they be imprisoned? Imprisonment presupposes moral and legal culpability just as much as the death penalty. The logic of the decision points toward the abolition of punishment itself.

The funny part of the Court ruling in the Atkins case is that exempting mental retardates from the death penalty almost necessarily involves using the concept of IQ. For the last few years that concept has been in the doghouse with the Progressive Element because IQ tests suggest the existence of racial differences. Blacks score about 15 points lower on average than whites, and lots of researchers are convinced the differences are genetically based. To avoid dwelling on the rather un-progressive implications of that fact, some educrats have been abandoning IQ tests as "racist," "white supremacist," and all the rest. Now, when such tests seem able to keep murderers and rapists alive, the progressive types have discovered that IQ is useful after all.

Penal experts estimate that about 10 percent of the 3,600 inmates currently under sentence of death may be mentally retarded, which means that some 360 murderers who are not the sharpest tacks in the carpet may someday be able to pay you or your family or someone else or his family a visit. If and when they do, remember who it was that decided these brainless killers are not really to blame for what they are about to do to you.

COPYRIGHT CREATORS SYNDICATE, INC.

June 27, 2002