Too dumb to die: The Supreme Court ruled today that mentally retarded people cannot be executed for murder. Justice John Paul Stevens, writing for the majority, said that because mentally retarded individuals don't have the mental faculties to be deterred from committing murder by the death penalty -- that the states don't have a valid interest in executing them. You can read the entire opinion here [Adobe Acrobat Reader required], but I would like to highlight some excerpts from Justice Antonin Scalia's dissenting opinion.

Today�s decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.

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The Court pays lipservice to these precedents as it miraculously extracts a �national consensus� forbidding execution of the mentally retarded, ante, at 12, from the fact that 18 States�less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists)�have very recently enacted legislation barring exe-cution of the mentally retarded.

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The Court attempts to bolster its embarrassingly feeble evidence of �consensus� with the following: �It is not so much the number of these States that is significant, but the consistency of the direction of change.� Ante, at 10 (emphasis added). But in what other direction could we possibly see change? Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound to be in the one direction the Court finds significant enough to overcome the lack of real consensus. That is to say, to be accurate the Court�s �consistency-of-the-direction-of-change� point should be recast into the following unimpressive observation: �No State has yet undone its exemption of the mentally retarded, one for as long as 14 whole years.�

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But the Prize for the Court�s Most Feeble Effort to fabricate �national consensus� must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called �world community,� and respondents to opinion polls. Ante, at 11�12, n. 21. I agree with the CHIEF JUS-
TICE, ante, at 4�8 (dissenting opinion), that the views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the
practices of the �world community,� whose notions of justice are (thankfully) not always those of our people.

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Retribution is not advanced, the argument goes, because the mentally retarded are no more culpable than the average murderer, whom we have already held lacks sufficient culpability to warrant the death penalty, see Godfrey v. Georgia, 446 U. S. 420, 433 (1980) (plurality opinion). Ante, at 14�15. Who says so? Is there an established correlation between mental acuity and the ability to conform one�s conduct to the law in such a rudimentary matter as murder? Are the mentally retarded really more disposed (and hence more likely) to commit willfully cruel and serious crime than others? In my experience, the opposite is true: being childlike generally suggests innocence rather than brutality.

Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is �no more culpable� than the �average� murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded individual who com-mits a series of 20 exquisite torture-killings? Surely culpability, and deservedness of the most severe retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distin-guish right from wrong) but also upon the depravity of the crime�which is precisely why this sort of question has traditionally been thought answerable not by a categorical rule of the sort the Court today imposes upon all trials, but rather by the sentencer�s weighing of the circumstances (both degree of retardation and depravity of crime) in the particular case. The 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.

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This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game. One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association (set forth in the Court�s opinion, ante, at 2�3,
n. 3) to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), Jones v. United States, 463 U. S. 354, 370, and n. 20 (1983), the capital defendant who feigns mental retardation risks nothing at all.

Today's Supreme Court decision is nothing more than legislating from the bench. Whether or not a mentally retarded murderer should be sentenced to death should have been left to judges and juries. It should have depended on the particulars of each case, and not a blanket free pass to the mentally retarded.

Just to recount, from Justice Scalia's dissent, the particulars of this particular case that was the subject of the today's decison:

After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.

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The jury also heard testimony about petitioner�s 16 prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming. Id., at 491�522. The victims of these offenses provided graphic depictions of petitioner�s violent tendencies: He hit one over the head with a beer bottle, id., at 406; he slapped a gun across another victim�s face, clubbed her in the head with it, knocked her to the ground, and then helped her up, only to shoot her in the stomach, id., at 411�413.

This guy deserves to be executed. The Supreme Court did wrong again today.