Handicapping Justice

The Supreme Court decided this week that it is unconstitutional to execute the retarded.

This may be a victory for some specific criminals on death row who meet the definition for retardation—a condition that, as Justice Antonin Scalia pointed out in his dissent in Atkins v. Virginia, might not be too hard to fake if it were a matter of life and death. A Mississippi official already predicts that "all of a sudden everybody on death row is going to become retarded."

But the decision doesn't do much good for the social mainstreaming of the retarded in general. What should we all make of a group of people who, we are being told, are essentially out of-control children?

Texas Sen. Rodney Ellis summed up the sort of rhetoric inescapable in these discussions while arguing for a ban on executing the retarded in his state: "Just as we don't execute children in this country or in this state, we ought not execute someone who has the mind of a child." (Unless murders are being committed in broad daylight in front of a cop –which might truly indicate that the criminal didn't have the mental capacity to know what he was doing and know that it was wrong—it isn't entirely clear that low IQ should be an exculpating factor anyway.)

And, as one writer active in the inclusion movement for the developmentally disabled put it, to say retarded "convicts are incompetent, helpless and child-like, insults not only them, but also people with disabilities who are making good choices every day. When we make 'special' laws and say this person lives because of his 'competency' score and this one dies because of his, we throw up more barriers for people who struggle to get others to recognize their abilities and the right to direct their own lives."

Belief in the propriety of the death penalty or the social perception of the retarded aside, the Atkins decision doesn't say much for the intellectual integrity of the Supreme Court. The argument that executing the retarded is unconstitutional was considered and rejected by the Supreme Court only 13 years ago.

Has the Constitution been amended since then? No, but since the decision is based on the "cruel and unusual" clause, Justice Stevens bluntly states in the opinion that his decision is based on considering the Court's vision of the changing social consensus on such executions. (There are still 20 states that have not banned executing the retarded.) Attempts—futile as they may often be—to forge a social consensus into law are properly the domain of legislatures, not the courts.