Alternative Law Journal
Death for the most deserving
GREG HEATON[*] examines recent developments in the United States.
The United States Supreme Court decided on 20 June 2002 that the execution of mentally retarded people violates the Constitution’s Eighth Amendment prohibition of cruel and unusual punishment. The decision will potentially spare as many as one third of the 3700 people currently on death row.
In the majority judgment, Justice John Paul Stevens cited former Chief Justice Earl Warren’s dictum that the Eighth Amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’. Justice Stevens said, ‘pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate’. He said the ‘consistency of the direction of change’ away from executing mentally retarded defendants indicated that a ‘national consensus has developed against it’.
Justice Stevens said there are two ‘justifications’ for the death penalty — retribution and deterrence — and neither of these justifications is served in the case of the mentally retarded. He asserted that mentally retarded people are ‘categorically less culpable than the average criminal’ because they ‘they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.’ Moreover, they ‘face a special risk of wrongful execution’ because they ‘may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanour may create an unwarranted impression of lack of remorse for their crimes’.
In dissent, Justice Antonin Scalia countered, ‘I suppose a similar “special risk” could be said to exist for just plain stupid people, inarticulate people, even ugly people’.. He disputed that there was any emerging consensus against executing mentally retarded defendants, and added, ‘[i]n any event, reliance upon “trends” … is a perilous basis for constitutional adjudication’.
He said, ‘[t]he fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders’. Moreover, ‘[t]here is no basis for saying that the death penalty is never appropriate retribution, no matter how heinous the crime’.
Justice Scalia and Chief Justice William Rehnquist both protested that the majority judges had been swayed by foreign laws, opinion polls, and the views of professional and religious organisations — factors which they dismissed as ‘irrelevant’.
Four days after Atkins, the United States Supreme Court decided that cases in which judges alone make the decision to impose the death penalty violate defendants’ constitutional right to trial by jury. The Court rejected Arizona’s argument that judges may be better than juries at guarding against the arbitrary imposition of the death penalty. Majority Justice Ruth Bader Ginsburg wrote, ‘[t]he Sixth Amendment jury trial right … does not turn on the relative rationality, fairness or efficiency of potential fact-finders’.
In a concurring judgment, Justice Stephen Breyer said ‘retribution provides the main justification for capital punishment’ and juries have a ‘comparative advantage in determining, in a particular case, whether capital punishment will serve that end’. Noting that many American states do not impose capital sentences, Justice Breyer said, ‘this diversity argues strongly for procedures that will help assure that, in a particular case, the community indeed believes application of the death penalty is appropriate’.. He appears to suggest that popular participation in death penalty sentencing can help preserve its fragile legitimacy. This assumption is problematic, particularly as under prevailing Supreme Court precedent, any prospective juror strongly opposed to capital punishment must be excused from sitting on a jury that might be required to decide whether to impose the death penalty.
It was not immediately clear what would happen to the 168 death row inmates in the five states where judges alone made the death penalty decision. One possibility was that their sentences could be commuted to life in prison. Oddly, however, in September 2002, the Arizona Supreme Court dismissed appeals from 31 death row inmates who claimed they were entitled to be resentenced in light of Ring.. The Court did not provide reasons for its decision, but the implication must be that it believed Ring did not operate retroactively. By contrast, the Idaho Supreme Court overturned an inmate’s death sentence on the grounds that Ring invalidated Idaho’s death penalty laws.
Meanwhile, in order to ensure the continued availability of the death penalty, the state legislatures of Arizona and Colorado hastily amended their laws to mandate jury involvement in death penalty decisions.
It remains unclear whether Ring invalidates the death penalty statutes in four other states in which juries recommend whether a convicted murderer should receive the death penalty, but the judge makes the final decision. There are 629 death row inmates in these states. Justice Scalia emphasised that the decision did not find a constitutional right to jury sentencing:
What today’s decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so — by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase.
In Delaware, the legislature passed a law giving juries sole authority to determine whether a defendant is eligible for the death penalty. In Florida, where a judge can override a jury recommendation of a life sentence and impose death, the Florida Supreme Court stayed two executions just hours before they were scheduled to occur. However, the Court subsequently ruled that the state’s capital punishment law is constitutional, and the executions could proceed.
Despite the United States Supreme Court’s narrowing jurisprudence, the number of executions each year has risen dramatically since 1976. Recent decisions might only strengthen Americans’ support for the death penalty, by removing some of the doubts about the fairness of its application.
[*] Greg Heaton is a Sydney lawyer.
©2002 Greg Heaton
 Atkins v Virginia (00–8452), 20 June 2002.
 Overington, Caroline, ‘Ban on executing low-IQ criminals may lead to appeals’, Sydney Morning Herald, 22 June 2002.
 Trop v Dulles,  USSC 57; 356 US 86 (1958).
 Ring v Arizona (01-488), 24 June 2002.
 Lockhart v McCree,  USSC 92; 476 US 162 (1986).
 Idaho v Fetterly (26563/27180), Idaho Supreme Court, 6 August 2002.
 An Act to amend Title 11 of the Delaware Code relating to the death penalty, enacted 22 July 2002.
 Bottoson v Moore (SC021455), 24 October 2002; King v Moore (SC021457), 24 October 2002.