http://www.nytimes.com/2002/06/21/opinion/21FRI1.html

The Court Gets It Right

June 21, 2002

By declaring yesterday that the Constitution's ban on
"cruel and unusual punishment" bars the execution of
mentally retarded people, the Supreme Court injected a
limited but wholly welcome measure of human decency into
the nation's use of the death penalty.

The 6-to-3 decision was a dramatic turnaround for a court
that capitulated 13 years ago to a wave of
pro-death-penalty sentiment and found no reason to bar the
execution of the mentally retarded. In so doing, it turned
a blind eye to the obvious - that inflicting the death
penalty on individuals with I.Q. scores of less than 70 who
have little understanding of their moral culpability
violates civilized standards of justice. This time around,
the court discovered a "national consensus" against
executing retarded people that it could not find in 1989.

Writing for the majority, Justice John Paul Stevens noted
that mentally retarded criminals do not have the capacity
to be deterred by the knowledge that they might be executed
for a capital crime. He was joined by Justices Sandra Day
O'Connor, Anthony Kennedy, David Souter, Ruth Bader
Ginsburg and Stephen Breyer.

The majority correctly observed that the tide of public
opinion had turned. Most states now either prohibit capital
punishment altogether or ban its use against the mentally
retarded. In an era in which DNA evidence has shown one
death row inmate after another to be innocent of the crimes
of which they were convicted, the polls demonstrate
steadily dwindling public enthusiasm for capital punishment
in general and a widespread revulsion against the idea of
executing mentally retarded people in particular.

Justice Stevens also signaled 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.

Three members of the court - Chief Justice William
Rehnquist and Justices Antonin Scalia and Clarence Thomas -
joined in angry dissents. Justice Rehnquist was indignant
on the matter of jurisprudence by "opinion poll results,"
but ignored the fact that it was that very instinct to hew
to what the public seemed to want that led the court into
this moral swamp to begin with.

The United States has been one of only three nations - the
other two are Japan and Kyrgyzstan - that permit the
execution of the retarded. Dozens of retarded convicts,
most of whom had little understanding of the moral
implications of their deeds, have been put to death here
since 1976. In the 20 states that still have laws on the
books permitting the execution of retarded people convicted
of capital offenses, it is estimated that there are scores,
perhaps even hundreds, of inmates whose low I.Q.'s will now
qualify them for a sentence reduction to life in prison.
Landing at a moment of mounting disquiet across the
political spectrum about the unfair and arbitrary workings
of the nation's death penalty system, yesterday's ruling
can only add momentum to current efforts underway on
Capitol Hill and elsewhere to address some of the system's
other lamentable flaws.



Copyright 2002 The New York Times Company