Death sentences

Thomas Sowell
Posted: Jun 26, 2002 12:00 AM

Some more murderers may escape the death penalty as a result of the recent decision of the U.S. Supreme Court, declaring it unconstitutional to execute those who are "mentally retarded." The larger question, however, is whether a death sentence is being pronounced on the Constitution of the United States. Are the justices killing it by inches with their ever more clever twisting of its words and evasions of its substance?

The Constitution's prohibition against "cruel and unusual punishment" is the ostensible basis for the 6-to-3 majority's overturning a death sentence on Daryl Atkins for his participation in a brutal robbery-murder -- the latest in a string of brutal crimes by Atkins. After being captured, he was given an IQ test on which he scored 59, which is considered to be in the "mentally retarded" range. Therefore, the Supreme Court declared, it would be a violation of the Constitution to execute him.

There is nothing in the Constitution to suggest that it was the particular people to whom a punishment was applied that made it cruel or unusual. This is the kind of stretching and twisting of words that turns the Constitution into a blanket grant of power to judges to impose their personal beliefs as the law of the land.

Most of the Court's decision, delivered by Justice John Paul Stevens, is about all sorts of things other than the Constitution. Rather than relying on what was meant "when the Bill of Rights was adopted," he relies on "the evolving standards" of today. In other words, judges can re-write the Constitution to their own taste.

Even as policy, the High Court's decision is arbitrary and unsubstantiated. Just because Atkins scored 59 on an IQ test after being arrested does not mean that he could not have scored higher if he had any incentive to do so. Even if he were genuinely below average in intelligence, you don't need to know that E equals MC squared to know what firing eight bullets into someone is likely to do.

Nobody wants to execute a man who doesn't know what he is doing or who can't tell right from wrong. These standards have existed for centuries in Anglo-American law. What is new within the past half-century are attempts to go beyond these factors and treat the speculations of shrinks as if they were science.

The great problem with both insanity defenses and defenses based on below-average mental capacity is that this is not science but subjective judgments, dressed up in the language of science. It is one thing for trial courts to make such judgments. It is something else for appellate courts to set in concrete the notions of shrinks.

Justice Stevens admits that mentally retarded persons "frequently know the difference between right and wrong and are competent to stand trial." At one time, that would have been the end of that discussion. But now, he brings in "consensus" among various groups, including foreign governments, as if the Supreme Court were the Gallup Poll.

Too many people judge Supreme Court decisions by whether or not they like the policy. Thus those who oppose the death penalty are pleased with this decision and those who support the death penalty are displeased. But if that is all there is to it, why do we have a Constitution or a Supreme Court? Elected officials can carry out what the public wants. We don't need a third House of Congress, made up of nine people.

Behind much of the opposition to the death penalty is the widespread assumption that executions do not deter murderers. This notion became liberal dogma long ago, based on an unbelievably crude study which measured capital punishment by words in the statute books, rather than by actual executions. A later and more sophisticated statistical study, by Isaac Ehrlich of the University of Chicago, found several murders deterred per execution.

The whole liberal establishment in academia came down on Professor Ehrlich's study, applying standards that they never applied to the previous study which told them what they wanted to hear. Just recently, in the June 21st issue of The Wall Street Journal, William Tucker presents new data showing a dramatic correlation between executions and the deterrence of murder.

But neither facts nor the Constitution are likely to carry much weight among those wedded to fashionable dogmas. Unfortunately, that includes members of the Supreme Court.