Concerned Women for America - Death for the Constitution: Supreme Injustice on Death Penalty Case

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Death for the Constitution: Supreme Injustice on Death Penalty Case 6/28/2002

Death for the Constitution: Supreme Injustice on Death Penalty Case
By Jan LaRue, Esq.

Set aside your position on capital punishment for now. Deciding whether the Supreme Court's ruling in Atkins v. Virginia is right or wrong is another matter entirely. The matter is judicial activism per se—in spades—achieving a desired outcome based on personal preference, the Constitution of the United States notwithstanding.

If you doubt that, consider what Justice John Paul Stevens wrote in the majority opinion, “[T]he Constitution contemplates that this Court will bring its own judgment to bear by asking whether there is reason to agree or disagree with the judgment reached by the citizenry and its legislators.” Maybe this is why judicial activists call it a “living” Constitution—it “contemplates” things.

What matters here is how much you value the Constitution and the right “We the People” have to rule ourselves, rather than being ruled by five or more unaccountable lawyers who've assumed that role for themselves. Think more about it on July 4.

Six justices of the Supreme Court decided, on June 20, that executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment of the Constitution. To get there, they had to jettison a 13-year-old precedent, which is not a problem when they want to make one they like more.

In 1989, the Court ruled in Penry v. Lynaugh, that there wasn't sufficient evidence of a “national consensus” to prohibit the execution of the retarded based on the Eighth Amendment. The Virginia Supreme Court, which upheld Atkins' death sentence, relied on Penry. Apparently the court didn't imagine that a national consensus could evolve so quickly.

The Atkins Court bases the “national consensus” on legislative enactments of less than half the states, international law, professional and religious organizations, members of the “world community” and polling data. That, we're told, goes to prove “evolving standards of decency that mark the progress of a maturing society.” Yet speaketh, the late Supreme Court Chief Justice Earl Warren who rarely encountered a criminal law that survived his “evolving standards.”

One would think that a Court majority concerned with “evolving standards of decency” would have upheld a ban of “partial birth abortion,” but apparently they haven't “matured” enough to end the brutally inhumane execution of innocent babies. If a “national consensus” were relevant to deciding constitutional matters, we surely have a better one evidenced by polling data from Gallup in October 2000, revealing that 63 percent of Americans support a PBA ban, except to preserve the life of the mother, and 31 states have enacted a ban. Apparently, a big consensus isn't sufficient when it relates to a court-created “right” but a smaller one is sufficient when it relates to the text of the Constitution. But we digress.

Justice Antonin Scalia's dissenting opinion summarizes the willful, deliberate and premeditated murder for profit committed by the mildly retarded defendant, who has 16 prior felony convictions: “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.”

Nothing in the Atkins majority opinion exemplifies justices who are duty bound to interpret law rather than write it. The fact that only the severely retarded were not subject to execution when the Eighth Amendment was ratified in 1791 was ignored. As Justice Scalia noted, “The Court makes no pretense that execution of the mildly mentally retarded would have been considered 'cruel and unusual.'” Instead, we have a Court majority acting on the “personal views of its members.” As Chief Justice William Rehnquist wrote in his dissenting opinion, the Court's assessment “more resembles a post hoc rationalization for the majority's subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court's decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion.”

Atkins escaped death, but what about the Constitution and “We the People”?

Jan LaRue Chief Counsel with Concerned Women for America, Washington, D.C., the nation's largest public policy organization for women.