Cruel and Unusual

Even small victories against tyranny need to be celebrated, so last week's 6-3 U.S. Supreme Court ruling, declaring the execution of mentally retarded prisoners unconstitutional, must be acknowledged as one small step for the court, one great leap for humankind. The majority considered the "evolving standards of decency" which define what sort of punishment is "cruel and unusual" under the Eighth Amendment (the only amendment which in its own terms directly contemplates such a developing public standard). In his opinion for the majority, Justice John Paul Stevens wrote: "Because of their disabilities in areas of reasoning, judgment and control of their impulses, [mentally retarded persons] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants."

That eminently reasonable position would seem to strike most people as commonsensical -- and indeed, sizable majorities of Americans, including Texans, regularly poll against the use of the death penalty for the mentally retarded. But, as Mark Twain was fond of pointing out, if there were such a thing as common sense, everyone would have it. As witness to the contrary, we have the dissent of Justice Antonin Scalia, who denounced the majority's opinion as "cavalier" and "just a game," and who has publicly recommended that any judge who considers the death penalty immoral should simply resign. That would certainly make his job easier. Scalia and his fellows William Rehnquist and Clarence Thomas have repeatedly shown little hesitation to expand the Constitution's meaning of "states' rights" or "property rights" -- for some reason, it is only the expansion of the meaning of human rights, as in capital punishment cases, that draws down their wrath like thunder.

Scalia and Rehnquist (in a separate dissent) particularly denounced the notion that evolving world standards of decency should have any effect on U.S. behavior -- a position of national exceptionalism they unsurprisingly share with the Bush administration. Scalia has elsewhere speculated that the more secular nations of Western Europe disdain the death penalty more than the heavily church-attending U.S. because "to a Christian, death is no big deal." As most historians point out, it was the hellish experience of World War II and the death camps that in fact moved the European public against state murder -- maybe when that bit of news hit the streets, Justice Scalia was on his knees before the altar.

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Prosecutors Know Best

Nevertheless, the Court's decision remains only a small, though significant, victory against the death penalty, and despite Scalia's warning that death row inmates will be lining up to claim retardation, the gurneys in Huntsville and elsewhere will not mildew for lack of business. There is no systematic investigation of mental health issues in death penalty cases (given the state of capital defense, there is barely systematic investigation of the evidence), and death penalty supporters are already rushing to make it as difficult as humanly possible to allow such evidence to be honestly considered.

You may recall that Gov. Perry, when he vetoed a bill last session that would have outlawed execution of the retarded, insisted nonetheless that Texas does not do so. He added that we should wait for a Supreme Court ruling on the issue -- now that he has one, he has returned to his original position that the Texas jury system deals adequately with mental incompetence, and that he would only contemplate approval of a bill to allow the same jury that condemns a man to death to then decide whether he is retarded.

Sen. Rodney Ellis, who sponsored the bill that Perry vetoed, points out that Perry's position is the same as that of Texas prosecutors, and has the same flaws: "This approach is disingenuous, misguided, and potentially unconstitutional. The prosecutors' hope is that a jury committed to sentencing a defendant to death will 'nullify' and reject a persuasive claim of mental retardation if the facts of the killing are sufficiently gruesome."

Juries in capital cases are already predisposed to both conviction and execution, since prosecutors routinely exclude potential jurors who might hesitate to impose death. It was illuminating last session to hear prosecutors tell committee members that, because the issues were so complex, Texas juries could not be trusted to choose between sentences of death and life-without-parole -- and later to watch several of the same prosecutors publicly denounce the Ellis bill as an insult to the sacred Texas jury system.

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Death Be Not Proud

Although the general standards are common -- low IQ, diminished judgment, youthful indicators -- the Supreme Court left it to the states to decide how to determine retardation, so there will be a good deal of scrambling to stake out positions before the Lege convenes. Ellis has announced he will revisit the issue, and his recent public statements suggest he will propose a bill contemplating pretrial consideration instead of the post-conviction judicial review featured in the previous bill. "If a defendant is found to have mental retardation," Ellis wrote, "it will save the taxpayers the extraordinary expense associated with a capital case." Capital cases cost the state about $2 million each -- even at the discount rates provided for indigent defense -- and if Perry and the prosecutors insist on post-conviction hearings, the price can only go up. If nothing else, perhaps fiscal conservatism will serve as a brake on the impulse to garner votes by executing scapegoats.

But unlike social services in Texas, the death penalty and the prison system seem immune to recession. A few profoundly retarded inmates -- Johnny Penry comes to mind, and Sunday's New York Times featured a handful of pathetic cases now resident in Livingston -- will uncomprehendingly be reassigned to effective life sentences, but the Supreme Court decision will otherwise have little effect on the vast majority of condemned inmates here or elsewhere. The righteous will be satisfied; the poisons will continue to flow.

But the court's decision does suggest that even in a time of right-wing ascendance and national hysteria over mostly phantom threats to "security," the winds of mercy have gathered a small but hopeful gust of public inspiration.