House of Eratosthenes

I got some e-mail from an interested reader on this article I wrote up three years ago. The reader doesn’t agree with me, but I don’t care. It’s good to see people showing interest in this stuff. Sure the country is going to hell in a handbasket, but it’s not because of people disagreeing with me so much as it is because people are apathetic. I like seeing some people aren’t apathetic.

I’ll get to the reader’s comments and my reply to his comments, but for now here is the original article, with a link to the OpinioNet site that was kind enough to post it and keep it posted.

Disclaimer: I copied the hyperlinks in as they were posted then & as they are posted now. I can’t make any guarantees as to how many of them still work. If you find something is broken, use Google. Hey, thirty-four months is awhile. I’ll go through and fix them when I get time. If I do. Maybe.

The Folly Of Atkins V. Virginia

June 27, 2002

by Morgan K. Freeberg

“Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members,” chastises Antonin Scalia in Atkins v. Virginia. He is one hundred percent right about that. For those of you who haven�t cogitated long and hard enough about the Eighth Amendment�s cruel-and-unusual punishment clause, the decision enlightens you that it�s unconstitutional to execute the retarded.

Short background of the case: In 1996, Daryl Renard Atkins spent a day with a friend of his, getting smashed on booze and pot. Their supplies exhausted, the pair hatched a plot to scope out a convenience store and rob the first customer that looked promising.

Eric Nesbitt, a young airman from Langley Air Force Base, therefore picked a bad time to go shopping. He was abducted and forced at gunpoint to withdraw cash from his bank account. Ignoring Nesbitt�s pleas to be spared, Atkins put eight bullets in the young man�s body.

Good thing I�m not a defense attorney. I wouldn�t have known what to do about this.

Not to worry. After a variety of other appeals were shot down, some fine legal mind cooked up the protest that Atkins had an I.Q. of 59 and was therefore mentally retarded. Not only did this eventually, contrary to a few initial disappointments, work; it burst forward from the highest pinnacle, inundating our entire nation from the United States Supreme Court like molten lava spilling from the highest volcano, destroying everything in its path.

Now, capital punishment is practically banned, so long as an attorney can insinuate his client is mentally retarded.

You do realize, don�t you, that an attorney can buy any mental health professional testimony that he wants? And that in capital cases, an unusually high benefit-of-doubt is enjoyed by the defense? See where this is going?

***

In a strange twist of judicial wrangling, the Atkins decision violently contradicts the same earlier precedent that it uses as its foundation. In Penry v. Lynaugh (1989), the Supreme Court of the U.S. (SCOTUS) established its own “jurisprudence” of factors to use in deciding capital punishment involving the mentally indigent. Johnny Paul Penry was convicted of raping Pamela Carpenter, and mortally wounding her with a pair of scissors. In that case, as well, the defense protested that their client was mentally impaired.

SCOTUS determined, unanimously, the following: The Eighth Amendment does not categorically prohibit the execution of persons with Penry�s level of reasoning. It also established this: Any punishment is unconstitutional if it would be “cruel and unusual” at the time the Bill of Rights was ratified; or, if it violated “evolving standards of decency.”

Penry�s capital punishment would, SCOTUS determined thirteen years ago, fail to transcend either of these two boundaries.

Why then would Atkins� execution be unconstitutional? SCOTUS says the second of the two boundaries has been punctured. In Penry (1989), SCOTUS as much as promised to monitor the actions of state legislatures to figure out when-and-if execution of the retarded would violate our “evolving standards of decency.” Atkins (2002) basically says: Ding! It just happened.

SCOTUS isn�t necessarily offended; rather, they just figured out we�re offended, through the actions of our legislatures.

But courts don�t do this. Let�s examine for a quick second what courts are supposed to do.

Courts read law, which the court didn�t write. Those who sit on the court may like the law, or dislike the law, or feel indifferent about it. Doesn�t matter. The next thing they�re supposed to do is apply it to a specific case and speak on behalf of the law.

Other people make sure the law is written according to that all-important “Will of the People.” They are called legislators. Not judges, not justices. Those legislators are regularly re-elected, and they have the job of figuring out “what The People want.”

Legislators spend millions of dollars conducting polls, and digesting results of polls that others have conducted. They are then tested in their ability to follow these polls, through a process justices do not have to face, an election�I mean, good heavens, is this something I really have to describe here?

I guess the answer is yes, if your name is John Paul Stevens.

***

The process can be fairly compared to your credit card statement. You open the statement every month, and what you see is an organized blending of things to which you did, and did not, directly agree. There is a list of transactions you authorized. One would hope, behind each of these transactions, some proof exists that you consented to each of these. Any transaction that does not have this underlying proof, is ripe to be challenged in the Dispute Office. Just as any legislation that The People don�t really want, is ripe to be challenged for repeal by a legislator who can figure out which way the wind is blowing.

And then there are things to which you agreed only indirectly. There is a periodic finance charge, maybe an over-limit fee, perhaps a late fee. And then there is a final balance and a minimum payment due.

My point is: When the bill is printed, your bank doesn�t call you and ask if you�re “cool” with these things. Like judicial decisions, they are simple matters of cold hard fact and cold hard logic. You had an average balance of $3,000. You consented to an APR of 12%. Your monthly periodic finance charge is $30. It can�t be anything else. If you want to get mad about it, well, you just get as mad as you want.

In Penry and Atkins, SCOTUS has done a beautiful job of mixing up those factors under The People�s discretion, with those factors not subject to that discretion. They got them absolutely 180 degrees bass-ackwards. Consider for a moment what they did here.

There is a proposal that if you execute a competent person, that�s humane, but if you execute an incompetent person that�s cruel.

Did you get to vote on that? I didn�t.

In fact, it seems to me that if the dog pound is overpopulated, healthy dogs can be put down legally and ethically because they�re not people. They don�t have our intelligence; they can�t be made to understand what is about to happen. Partially because of this, the euthanasia is merciful and humane.

Someone comes along and proposes, if we�re talking about a guilty person instead of an innocent dog; but if he possesses the same reasoning ability as the hypothetical dog, suddenly such a thing becomes cruel.

I don�t agree with that. Am I in the minority? Maybe so, but my opponents should go through a process where they have to prove that I�m out-voted. We have legislative processes in place to do that kind of proof. If a federal standard is desired let it be passed as a law, not as a SCOTUS decision.

On the other hand: We have an Eighth Amendment that outlaws cruel and unusual punishment. Does that prohibit executing the retarded? The Atkins decision says yes, but only because it perceives our sentiments have changed since the days of the Penry decision, which decided the opposite.

In other words, the Will of the People changed the status of constitutionality.

The circumstances did not change. Johnny Paul Penry and Daryl Renard Atkins are purported to possess approximately the same levels of reasoning ability.

Did the Eighth Amendment change in the last thirteen years? Certainly not.

But SCOTUS changed its answer to a question that has remained fundamentally constant – and then – it passed the buck, blaming the instability on legislatures, and by extension, on us.

This is breathtaking. It�s like taking a vote to find the freezing temperature of water.

So SCOTUS let democracy decide things that are matters of fact and logic, which are not under the purview of democracy; then it denied the voice of democracy in a matter, which is emphatically the domain of democracy. They got it absolutely, positively, one hundred percent wrong.

***

What is this all really about?

Capital punishment is legal in all but twelve of the United States. In the thirty-eight states that allow it, there are some 3,700 prisoners on death row. Not a single one of them can be emphatically excluded from that now-revered class of people called “retarded.” The volume of litigation that must be initiated, now, is nothing short of stunning.

As a Californian, I am represented by two wonderful, radical-liberal-female senators. They are my gift from 1992, that media construct called the “Year Of The Woman.” Since 2001, these two wonderful liberal female senators have spent awesome reserves of energy blocking presidential appointments to a judicial bench that has nearly a hundred empty seats. They say they�re sending a message to President Bush that they want “moderation” on the bench.

Anyone who�s been paying attention knows that Atkins represents a shining example of what they mean by “moderation.” Public sentiment ignored where it should be better respected, and public opinion reigning supreme where, by rights, it ought to be discarded outright.

“Moderation” means, to them, a castle of jurisprudence built on shifting sand of public opinion – not sober, sound, logical conclusions based on existing law – and devastating hiccups of legislation blossoming forth as a result. They are determined to send this message to the president, and with good reason. Justice Stevens, author of the Atkins decision, is one of the most liberal justices on the court. He is 82. Chief Justice Rehnquist is the next-oldest justice, and staple to the conservative wing. Rehnquist is 77.

Obviously, anyone with an ideological leaning one way or the other, who has some say about judicial placement, is clamoring to make sure their message is heard.

My wonderful radical-liberal-female senators belong to a political party which we call “Democrats.”

Democrats are funded by donations from trial lawyers. If you�re a trial lawyer who donates to political causes, most of your money goes to Democrats.

What happens to a trial lawyer�s bank account when there is more litigation? Democrats don�t want a well-oiled, smooth-running machine of justice. They want burned-out O-rings, under-lubricated bearings, fouled plugs, leaky gaskets, thrown rods, the whole works. They want chaos, because chaos leads to litigation. Litigation means more money for their constituents.

Our Constitution assumes that the Supreme Court, whose members are appointed to lifetime terms during their good behavior, is above all this. Six justices just proved that wrong.

It�s the old saying: Follow The Money.

***

So what exactly is this – some would say – badly worded and troublesome Eighth Amendment all about?

Contrary to the supposed wisdom of the Penry decision, the meaning and sentiment of the Eighth Amendment has very little to do with standards and sensibilities in 1791. Like much of the Bill of Rights, this amendment was lifted – verbatim – from the English Bill of Rights ratified in 1689.

To appreciate what “Cruel and Unusual Punishment” is all about, it is necessary to go back even further than that.

After The Restoration, the period in English history where the monarchy was restored following the Interregnum of Oliver Cromwell, Charles II ascended to the throne in 1660. He had the faith of a nation, being the first-born son of Charles I who was martyred during the Revolution in 1649. One of the most embarrassing incidents of his 25-year-reign was the Popish Plot. In more ways than one, it would be fair to compare this incident to Susan Smith�s adventure at John D. Long Lake, where she claimed a black man abducted her two young sons.

A young rogue named Titus Oates ingratiated himself with the nobility, including King Charles, by insinuating he knew of a plot to assassinate the King. Like Susan Smith, he concocted and embellished a fanciful tale, then kept adding on to it to further enhance his growing popularity.

His libelous statements resulted in the arrest, trial and execution of several innocent people. But his ultimate transgression was to embarrass both the elite and the commoners, once his deception was discovered.

By this time, Charles II had died without heirs, causing a problem of succession that would fester until the House of Stuart was eventually brought down. His younger brother became king as James II. According to contemporaries, James was just as pernicious and unreasonable as Oates, himself. As the schism between Catholics and Protestants grew to a frenzy in Great Britain, James presided over a system of justice determined to make Oates pay for the embarrassment suffered throughout the land.

Remember our widespread, vitriolic anger at Susan Smith when we discovered the real fate of her young sons? It was the same situation, and Titus Oates was less popular than that. Death was far too good for him, Parliament declared.

He was to be pilloried in Palace Yard, to be led round Westminster Hall, to be pilloried again in front of the Royal Exchange, to be whipped from Aldgate to Newgate. After two days, he was to be whipped again, from Newgate to Tyburn.

After all that, if he was to survive, he was to be kept prisoner for life. Five times every year he was to be brought forth and exposed on a pillory for more thrashings. Before his second punishment, it was discovered that the villain had somehow steeled himself against his punishment with strong drink.

In summary: Confident that his punishment could never equal his crime, the system of justice would toy with him, like a cat with a mouse. Basically, laying into his flesh with a cat-o-nine-tails until its collective arm got tired.

This was in 1687. The following year there was a revolution. The Protestants defeated the Catholics, placing Prince William of Orange on the throne. The new government of William III, determined to define its superiority over the previous, Catholic regime, drafted a Bill of Rights in 1689.

And right in the middle of it, “�excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Pretty much everyone agrees this was inspired by the Titus Oates affair. So what did they mean by this?

***

If you�re very sharp, maybe you�ve figured out from my obscure ramblings where I�m going with this. Sometimes, with late-Renaissance-era law, it is necessary to study the history of that law; completing that, you get a perspective very different from where you started.

Titus Oates petitioned officials, both Protestant and Catholic, to reduce his sentence. He had very little success. As was the case with Susan Smith, there was little-to-no desire in the nation to confer mercy on his miserable hide. This man libeled people, sending them to an undeserved death. He was regarded, throughout all factions, as deserving of whatever he got.

But the Protestants drafted this precursor to the Eighth Amendment. They didn�t give a rip about the well-being of Titus. They cared about the civilization of their society.

They knew their penal system existed, ultimately, to protect the safety and well-being of the innocent from the guilty. They knew the Oates sentence was generated from passions that cared very little for this protection-of-the-innocent; and cared very deeply for old-fashioned, sadistic, savage, thirst for hot steaming blood.

They knew this was beyond a civilized society, and beneath a civilized society.

Any interpretation outside of that spirit, is a reworking of the Eighth Amendment.

***

I�m not opposed to “evolving standards of decency,” but we have a place for the manifestation of such things.

It�s called a Congress.

Someone should tell six of our justices about it.

Leave a Reply

You must be logged in to post a comment.

Recent

Items of Interest

Monthly Archives

What They Say

Links

The Folly Of Atkins V. VirginiaFriday, April 15th, 2005

The Folly Of Atkins V. Virginia
Friday, April 15th, 2005