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In Atkins v. Virginia the Supreme Court decided that executing mentally retarded defendants - even if they are competent to understand the nature and consequences of their actions - is unconstitutional as a "cruel and unusual punishment." The Supreme Court reached this decision not on an historical or legal analysis of the meaning of the Constitution's Eighth Amendment - which prohibits cruel and unusual punishment - but on the grounds that several states had passed laws prohibiting execution of retarded defendants. Why should this worry us? The criminal law serves many functions. It punishes criminals forcing them to be accountable for their actions. This forces criminals to bear at least some of the costs their actions impose on others. In turn, this "internalizing" of what economists call "negative external costs" means the criminal law serves a deterrent function. It forces would-be criminals to consider the costs they may have to bear if they are caught and punished. The criminal law thus also protects society, either by taking criminals off the streets or preventing their crimes. Last, criminal law provides a sense of justice. Victims who have suffered a loss at least have the comfort of knowing that the wrong-doer was punished. Allowing retarded defendants to escape the consequences of their actions ignores the purposes of criminal law and abandons all the benefits the criminal law provides society. States may not even have the Constitutional power to make laws like this because these laws violate the Equal Protection clause. Can you imagine a state making it okay for people with brown eyes to commit murder? Retarded defendants who understand the consequences of their actions are no different than any other defendant. They are not eligible for the insanity defense because they do understand their actions. But losing the benefits of the criminal law is NOT the most worrisome aspect of the Supreme Court's decision. The Court reached this decision by looking to see what public opinion is today, and reversed a decision the Court had reached just a few years ago in a case on similar facts. The court determined that several states had passed laws to bar execution of retarded defendants. This is exactly the opposite of what the Court is supposed to do. Federal judges have life tenure so that they will be insulated from the passions of public opinion that can change from day to day. They are supposed to decide Constitutional questions on the basis of what the men who wrote that document said, not what some state legislatures may have recently made law. Of course, the decision just shows what CS readers know - that law always follows what a majority of citizens believe is right or wrong. Placing the ultimate power to decide in the hands of a small group - Federal judges with life tenure - extends the time it takes for popular opinion to become law, but it cannot guarantee that society's law will stay true to an absolute set of principles like those in the Constitution. You can read Atkins v. Virginia for yourself here. |
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