# EIGHTH AMENDMENT MATHEMATICS (PART TWO): How The Atkins Justices Divided While Summing

## By AKHIL REED AMAR AND VIKRAM DAVID AMAR

Friday, Jul. 12, 2002

This is Part Two of a two-part series on the mathematical questions raised by Atkins v. Virginia, the Supreme Court's decision banning execution of mentally retarded convicts. - Ed.

All nine Justices in Atkins v. Virginia agreed that modern sources are properly consulted to determine which punishments today count as unconstitutionally "cruel and unusual." But the Justices divided over what sources to consult, and how to sum up the data. In our last column, we analyzed four broad methodological and mathematical issues dividing the Court. Today, we discuss five more.

Question 5: Do Recent Trends Count?

In 1989, when the Court upheld executions for mentally retarded convicts in Penry v. Lynaugh, only 16 states prohibited such executions-14 because they banned all executions, and 2 because of special rules shielding low-IQ inmates. (Actually, on the day Penry was decided, the Court's unofficial slip opinion mentioned only one special state shield law, enacted by Georgia in the late 1980s. But later the Court took notice of a second state-Maryland-whose new shield law was due to go into effect, and changed the language of the majority opinion before publication of the final version of the case report.)

In the years since Penry, however, the group of 16 states prohibiting executions of the mentally retarded has swelled to 30. Moreover, only 5 states have actually executed inmates known to be mentally retarded.

But trend line cannot be the whole story. Suppose, to take a hypothetical example, that the number of states banning a given practice goes from 3 to 15 in a decade, with no state backsliding (that is, allowing the practice after once banning it). And assume for simplicity's sake that the 15 states have roughly their proportionate share-30%-of the 50 states' population and crime.

In this hypothetical, the direction of the change would be clear, with an increase from 3 to 15, and so would the trend's consistency, given that there was no backsliding . But would the prohibited practice have thereby become truly "unusual" or merely "less common"? Remember, 35 states still do not prohibit it, and those states represent 70% of the country's population, according to our hypothetical.

As this hypothetical makes clear, trend alone, without overall current consensus, should not suffice. But with a current consensus, what does trend line add?

Suppose the existence of a current consensus is otherwise unclear. Then perhaps a strong and consistent recent trend might resolve judicial doubt in favor of recognizing the consensus. For one thing, data points from states where an issue has been recently and openly debated may be more reliable measures of contemporary views of cruelty than older, less merciful policies.

After all, these older policies may simply reflect the inertia of political judgments made long ago, and thus may no longer be representative of current social norms.

Perhaps the Atkins majority also emphasized trends to avoid overruling the basic holding of Stanford v. Kentucky. Stanford, which was decided the same day as Penry, upheld the death penalty for those who murdered at the tender age of 16. When Stanford was decided, more than half the states banned such executions-and more than half continue to ban them-but there has apparently been no dramatic and consistent trend on the issue of executing youthful offenders, as the Atkins Court pointedly observed in a footnote.

Justices Kennedy and O'Connor were members of the Stanford majority. They also joined Justice Stevens's Atkins opinion. These two Justices may not yet be willing to abandon the core holding of Stanford in the absence of strong evidence that popular sentiment on the issue of youthful offenders is shifting dramatically.

In other words, if the question is, "what does trend line add?" perhaps the answer is, "one or two key votes for the Atkins majority."

Finally, Justice Scalia aims another important criticism at Stevens's reliance on recent trends. Scalia claims that because no death-penalty states before the late 1980s shielded the mentally retarded, shield laws had nowhere to go but up-you can't go down from zero.

And this number-fourteen-could have gone up or down since 1989. (Scalia in fact specifically discusses New York, which became a death penalty state after Penry, but fails to appreciate how this state undercuts his "nowhere to go but up" claim.)

The fact that the overall number of states-including abolitionist states-banning executions of the mentally retarded has dramatically increased since 1989 is thus not just a statistical gimmick but a genuine trend.

Question 6: Should Judicial Lock-Ins Be Taken Into Account?

Scalia also accuses the majority of jumping the gun by constitutionalizing a rule that will be hard to undo if Americans change their mind in the future. By prohibiting death sentences for low-IQ inmates, the Atkins majority in effect guarantees that this punishment will henceforth be unusual. And this kind of lock-in, Scalia suggests, is cheating: punishments should be judicially invalidated because they are unusual, not unusual because they have been judicially invalidated.

Scalia is right to worry about lock-ins; but he fails to acknowledge that lock-ins also present problems under his own approach. Imagine that some punishment has overwhelmingly been condemned by Americans for decades. Such a punishment would constitute cruel and unusual punishment under Scalia's own test; but once banned, how could such punishment ever be revived if American attitudes change?

To solve the lock-in problem, the Justices (on both sides of the Atkins debate) need to be open to future evidence that Americans have changed their minds in pro-punishment ways. How might such changed views express themselves? Perhaps in nonbinding state legislative resolutions, or new statutes with delayed starting dates, or grand jury reports, or the very sort of poll data that Scalia and the other dissenters reject, but that the majority considers.

Which brings us to our next question.

Question 7: Do Poll Data Count?

Justice Stevens cites "polling data" showing "a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong." The dissenters dismiss these opinion polls as unreliable--highly sensitive to the precise wording of a given pollster's question and other subtleties

If actual patterns of current punishment help define what is considered "unusual," shouldn't actual sentiments of current Americans likewise help define what is considered "cruel"? In other words, given that the word "unusual" calls for attention to modern practice, shouldn't the companion word "cruel" direct judicial attention to modern moral sentiments? Aren't polls one plausible way of discerning such sentiments?

In relying on polls, Atkins went beyond Stanford and Penry. In Stanford, a Court plurality explicitly disavowed "rest[ing] constitutional law upon such uncertain foundations." In Penry, a Court majority cited various polls but gently downplayed their legal significance.

Of course, the specter of judges reading polls does raise questions of judicial propriety and competence. One might ask: Shouldn't legislators be the ones gauging popular opinion?

But such a question forgets that in the years since Penry and Stanford, the Court has improperly denied national legislators broad authority to proclaim a national consensus of fundamental rights and liberties binding upon the states.

Under the Court's 1997 decision in City of Boerne v. Flores, Congress would probably not be allowed to rely on the polls or on the dramatic recent trend among the states (or on much else) to declare that the right of the mentally retarded to be free from execution is part of due process and fundamental liberty-one of many "privileges" and "immunities" that no state should hereafter abridge.

The framers of the Fourteenth Amendment clearly meant to give Congress-the body that drafted and proposed the Amendment, and the only national institution explicitly vested with enforcement power in the text of the Amendment itself-broad power to prevent cruel and abusive state practices, and other state threats to fundamental rights. Thus, Boerne was wrongly decided. But it still stands as a major stumbling block to national legislative action limiting state death penalty law.

In light of that fact, the complaint of the Atkins dissenters-that legislators should be the ones translating popular will into legal command-rings hollow. The Court itself, with the enthusiastic support of the Atkins dissenters, earlier prevented national legislators from doing just that: translating the national consensus on fundamental fairness and human dignity into a national law reining in outlier states.

Question 8: Does World Opinion Count?

Justice Stevens notes that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." In fact, no other civilized democracy in the world (with the possible exception of Japan) executes mentally retarded offenders.

But not so fast. Before this footnote appeared, the Court had, in various majority and plurality opinions, repeatedly appealed to world practice in construing the Eighth Amendment. (One of the clearest statements appears in the 1982 case, Enmund v. Florida. This and other cases are discussed in a recent lecture by Yale Law School Professor Harold Koh, who served as Assistant Secretary of State for Democracy, Human Rights, and Labor from 1998 to 2001.)

The best historical case for consulting world practice whenever it is more demanding than American practice would run something like this: The Founders themselves drafted their Constitution with an eye to world opinion. Their Declaration of Independence appealed to a world audience: Out of "a decent respect to the opinion of mankind" Americans submitted their case to "a candid world."

Furthermore, the Founders cared about world opinion not just in general, but on questions of punishment in particular. As children of the Enlightenment and students of penal reformers such as Cesare Beccaria, they abhorred much of the barbarism and blood-thirst of the Old World, and took pride in the fact that New World punishments were far less savage than elsewhere. They wanted America to be a leader in humane punishment, not a laggard-and they implicitly infused this world leadership ideal into the broad language of the Eighth Amendment.

Moreover, this implicit Founding ideal received strong reinforcement from the Fourteenth Amendment, which aimed to bring an end to savage punishment policies of the Old South. ( For what it's worth, all five of the states that have recently executed mentally retarded inmates come from the former Confederacy.) Indeed, at least one congressional supporter of the Fourteenth Amendment openly appealed to world practice among civilized democracies. He condemned Southern "whips and scourges" by challenging his colleagues to "point me to any country in the world, governed popularly in its legislative branch, that imposes today physical chastisement, physical torture, as the punishment of crime. There is no answer. No gentleman can point to such a country."

Whether or not such a historical argument for consulting world opinion should ultimately carry the day, it was worthy of far more attention than either the majority or the dissent gave it. Interested readers looking for more discussion here should consult Professor Koh's fine lecture.

Question 9: Do the Justices' Opinions Count?

Justice Stevens admits that he and his colleagues in the majority have brought "our own judgment to bear" on the Eighth Amendment issue, above and beyond all the facts and figures from the broader society. Scalia sharply criticizes this reliance on the "personal views" of the Justices.

In general, we share Justice Scalia's concern that Justices too often read their own personal views into the Constitution, and then impose those views on the rest of us. But unlike so many issues it confronts-When does human life begin, and how might government regulate abortion? What searches and seizures are reasonable? Are vouchers permissible?-the issue of punishment is one that affects judges in a distinctly personal way, and one in which they may plausibly claim distinctive expertise.

The Eighth Amendment is directly written to and about judges. Historically, it grew out of a concern that professional judges could at times be cruel and hardhearted-and lawless, too-in inflicting suffering on fellow humans.

There are reasons why the judiciary should hesitate to rely on personal experience to ban punishments the people emphatically favor. But even restrained judges who, for reasons of democratic deference, uphold harsh criminal sanctions should be willing to write forthright opinions explaining to their fellow citizens-in detail, based on their firsthand experience-some of the real problems posed by the death penalty, and by other penalties, in modern America.

The Eighth Amendment tells judicial officers to heed the larger society's sense of humanity. But the Amendment nowhere forbids judges-and if anything, it encourages them-to cultivate a spirit of decency and humility, and to share their moral and professional concerns about punishment with the American people who are, in the largest sense, America's Ultimate Supreme Court.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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