June
20, 2002, 2:00 p.m. Personal
Problems
The Supremes
ignore the Constitution in Atkins.
By Richard
W. Garnett
oppose the death penalty. To be clear, I accept the idea that the death
penalty can serve as a deterrent; I am convinced that retribution is the
justification and proper purpose of punishment; and I continue to believe
in the reality and facticity of evil. Nevertheless, I have come to believe
that the abolition of the death penalty could be an important step in
building what Pope John Paul II has called a "Culture of Life,"
and that opposition to capital punishment can serve as a powerful witness
to the transcendent dignity of the human person.
All that said, as
a lawyer, law teacher, and citizen, I can only shake my head at Atkins
v. Virginia, today's Supreme Court's decision outlawing the execution
of persons with severe developmental disabilities. The Court's holding
— an abrupt about-face from its 1989 Penry decision —
means that even when such a person has been found competent to stand trial,
convicted of capital murder (i.e., found beyond a reasonable doubt to
have caused another's death with a culpable state of mind), and condemned
to death by a sentencer who was given a fair opportunity to consider the
moral relevance of the killer's disabilities — even then, the "standards
of decency" currently embraced by a slim majority of Supreme Court
Justices trumps the judgments of legislators, prosecutors, jurors, and
voters.
Now again, I like
this result. It strikes me as humane, if not democratic. I would vote
for it as a legislator and campaign for it as an activist. But I also
live under a Constitution. And I am quite convinced that my likes and
dislikes are irrelevant to the question of whether the Eighth Amendment
to the United States Constitutions forbids those who disagree with me
from enacting and enforcing laws that reflect their likes and dislikes.
Similarly irrelevant, in my view, are most of the (inconclusive) evidence
and authorities (e.g., advocacy groups' amicus curiae briefs, legislative
margins and trends, the views of European Union, and even the position
of my own Catholic bishops) on which Justice Stevens's majority opinion
purports to rely.
Justice Stevens's
opinion concludes with the pronouncement, "we are not persuaded that
the execution of mentally retarded criminals will measurably advance the
deterrent or the retributive purpose of the death penalty." But the
legislatures of 20 states — and millions of our fellow citizens —
disagree. Try as I might, there seems to be no getting around the fact
that today's decision is not so much constitutional law as it is —
in Justice Scalia's words — a breathtakingly arrogant assumption
of power.
None of this is to
deny that, in many respects, our constitutional regime is "counter-majoritarian"
with respect to fundamental individual rights. And I see no reason to
disagree with Justice Stevens's statement that "the basic concept
underlying the Eighth Amendment is nothing less than the dignity of man."
Still, our Constitution quite clearly reflects the judgment — one
with which good and reasonable people can disagree — that capital
punishment is, or at least can be, consistent with that dignity. The death
penalty, then, is a problem whose resolution is left to the public square,
not the courtroom. I am afraid, in the end, that Justice Scalia is correct:
"Seldom has an opinion of this Court rested so obviously upon nothing
but the personal views of its members."
—
Richard W. Garnett is a professor at the University of Notre Dame's law
school.
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oppose the death penalty. To be clear, I accept the idea that the death
penalty can serve as a deterrent; I am convinced that retribution is the
justification and proper purpose of punishment; and I continue to believe
in the reality and facticity of evil. Nevertheless, I have come to believe
that the abolition of the death penalty could be an important step in
building what Pope John Paul II has called a "Culture of Life,"
and that opposition to capital punishment can serve as a powerful witness
to the transcendent dignity of the human person.
