Jewish World Review June 28, 2002 /18 Tamuz 5762

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Consumer Reports

Supreme Court reads polls, too | Executions of the mentally retarded are unconstitutional, the Supreme Court has ruled. That's a relief.

Nevertheless, an interesting backlash has erupted against the Supreme Court's decision, not so much for what they decided as the way they decided it.

The complaint is that the high court's 6-to-3 decision is based not so much on legal precedent as on trends among the states, foreign countries, religious leaders, professional organizations and, most controversially, the results of opinion polls.

Such are the sources cited by Justice John Paul Stevens, writing for the majority, as reasons to believe that "a national consensus has developed" that views executing the retarded as a violation of the Eighth Amendment's ban on "cruel and unusual punishments."

This novel endorsement of the power of polls brings to mind satirist Finley Peter Dunn's fictional bartender Mr. Dooley's turn-of-the-century observation: "The supreme coort (sic) always follows th' iliction (sic) returns."

Indeed, fumes a disapproving editorial in The Wall Street Journal, "We know the Court will now make up its mind based on as little as a Gallup poll."

Well, not quite. This opinion is grounded primarily, as all court opinions must be, in law, evidence and precedent, not polls.

But, when the court is asked to rule on something as changeable as society's definition of "cruel and unusual," it is not unreasonable for the Supremes to reach out from their lofty legal towers to all sources, even opinion polls, to find out what our society views as "cruel" or "unusual" these days.

As Chief Justice Earl Warren wrote in a 1958 decision, the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

Locking someone in stocks on the public square was not viewed as cruel or unusual punishment in this country's colonial days. Now it is. At one time, execution was not widely viewed as excessive punishment for the crime of rape. But, by the late 1970s, enough states had ruled capital punishment to be excessive for rape, Stevens writes, that the Supreme Court held it to be unconstitutional in Coker v. Georgia in 1977.

When the court last ruled on executions of the retarded 13 years ago in Penry v. Lynaugh, it decided that such executions did not violate the Eighth Amendment. Since then, state legislatures have marched slowly but steadily against such executions. Since then, the number of states banning such executions has grown from two, Maryland and Georgia, to 18 and the trend shows no signs of moving the other way.

Could the high court have been following a hidden agenda? Justice Antonin Scalia apparently thought so. "Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," Scalia exploded in his stinging dissent.

Funny, but a lot of people said the same thing back in 2000 when a Scalia-led majority of the high court interrupted Florida's recount of George W. Bush's contested victory over Al Gore. In that case, as Mr. Dooley might say, the Supreme Court not only followed but actually decided the election returns.

The court's credibility took a beating but survived that controversial decision in 2000. I think it will survive this one, too.

However, states that still have executions do face a new challenge. The Supreme Court did not offer any guidance as to who is to be considered too retarded to be executed. If Daryl Atkins, with a 59 IQ, is too retarded to be executed, for example, what about another man who has a 60 IQ? How high do you have to score to be eligible to be killed?

State standards differ. It may be just a matter of time before another court decision rules that such interstate inconsistency is unconstitutional or, at least, "cruel and unusual" discrimination against killers with high test scores.

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