Rethinking the Death Penalty (Page 2)

What is going on here? First, it is important not to view these scattered developments through rose-colored glasses. Mental retardation is in some ways an "easy" issue. Pretrial grumblings from district judges do not change the constitutional landscape. Thirty-five people have been executed in the first six months of the year. Both Atkins and Ring will probably save lives but do not overtly question the underlying principles and practice of capital justice. Indeed, this year the Court issued some little-noted but harrowing rulings, including approving the death sentence of an inmate whose attorney was mentally ill throughout trial and failed to make any closing argument; and Attorney General Ashcroft is pursuing the federal death penalty with unprecedented vigor. Governor Ryan's principled moratorium and his commission's proposed reforms may be DOA after November's elections, and the future of Maryland's moratorium is even shakier.

Yet something, clearly, is going on: The Supreme Court has changed its position, those federal judges do feel emboldened to speak out, that New Jersey public has changed its view. You can see some of this new dynamic at work in Maryland. Governor Glendening described his moratorium as a stance of principle--"We must have absolute confidence in the integrity of the process"--but in fact it was all about politics. Townsend, no liberal firebrand, supported a moratorium for her own political good: The moratorium was first proposed by the Maryland legislature's black caucus, and Townsend took her stand to secure those legislators' endorsement. That a self-described New Democrat and conventional law-and-order lieutenant governor would tie her political future to racial sensitivity in capital sentencing would have been inconceivable just a year ago. Now, even presidential candidate John Kerry has announced his support for a moratorium, which would have been declared suicidal in the past--and which may well elevate capital punishment to serious visibility in the 2004 presidential race. In other words, alarm about capital punishment has left the world of legal abstraction and liberal jurisprudence to enter the political mainstream.

That lesson is amplified and clarified by the Supreme Court's ruling in Atkins, the mental retardation case. In terms of Supreme Court Kremlinology, it was important but not entirely surprising to find Justice Sandra Day O'Connor--who had written the Court's 1989 ruling supporting execution of the retarded--reversing herself: Last summer O'Connor voiced highly publicized doubts about the quality and credibility of capital trials and the likelihood that innocent people have been executed. Just as important was the signature on Atkins of Justice Anthony Kennedy, whose aspirations to succeed William Rehnquist as Chief Justice have lately been the subject of an intense Washington rumor mill.

The real news, however, lies in the terms of the decision itself, and the fact that these terms are accepted by Justices across the political spectrum. Justice Stevens's majority opinion traced the Court's reconsideration back to "public reaction to the execution of a mentally retarded murderer in Georgia" in 1986. [Emphasis added.] Stevens noted the steady passage of bans on executing the retarded over the years since, and rooted the opinion in a pointed citation from Chief Justice Earl Warren regarding "evolving standards of decency that mark the progress of a maturing society"--a knock upside the head to original-intent jurisprudence.

The decision's richest long-term implications are found in the footnotes. Footnote 21 places the Atkins decision in a transnational context: "Within the world community the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved," Stevens wrote, citing an amicus brief filed by the European Union--virtually inviting further intervention from death-penalty opponents abroad. Footnote 25 is a window into just how deeply the Supreme Court's own internal death-penalty consensus has been rattled: "We cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated." Both suggest that the Court's traditional death-penalty reasoning is under uneasy review. A furious Chief Justice Rehnquist rose to the bait in his dissent, denouncing the "Court's decision to place weight on foreign laws." Justice Antonin Scalia went even further: "Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."

In a sense, Scalia is right. If the Court is newly uneasy about capital punishment, it is not because of some novel view of the Constitution. Instead, Atkins--even more deeply than the Maryland moratorium--suggests a lesson of immense importance to death-penalty campaigners: Politics matters. Grassroots activism matters. Last year, anti-death penalty advocates in Connecticut convinced the state legislature to ban executions of the retarded even though none of the seven individuals on Connecticut death row meet that standard. A seemingly meaningless reform--yet a year later it was cited by the Supreme Court among the evidence of an emerging consensus. Pressure from abroad matters: By citing the EU amicus brief instead of a similar argument by retired US diplomats, the Supreme Court majority sent a clear invitation to further expressions of world opinion.

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