THE HIDDEN INTERNATIONAL INFLUENCE IN THE SUPREME COURT DECISION BARRING EXECUTIONS OF THE MENTALLY RETARDED

Last week, in Atkins v. Virginia, the Supreme Court ruled 6-3 that the Eighth Amendment's prohibition on "cruel and unusual punishments" bars states from executing mentally retarded defendants. The decision overturned the Court's 1989 decision in Penry v. Lynaugh. There, the Justices had said that executing the mentally retarded is permissible.

Atkins was a rare Supreme Court victory for death penalty opponents, who have fared better recently in taking their case to governors and state legislatures. Accordingly, the decision has sparked intense interest, with observers asking the following key question: Why did Justices Sandra Day O'Connor and Anthony Kennedy, both of whom routinely uphold capital sentences, change sides and join Justice Stevens' majority opinion in Atkins?

The opinion itself gave a straightforward answer: Between 1989 and 2002, the majority said, a "national consensus" emerged holding that it is wrong to execute the mentally retarded. But is that really the case? Although there is a trend towards prohibition, twenty of the thirty-eight states that have a death penalty still permit execution of the mentally retarded. Thus, one might reasonably think this trend has not yet reached the point of national consensus.

With the "national consensus" rationale somewhat shaky, what factors might explain the decision? The leading suspect, buried in a footnote, is world opinion.

While the existence of a national consensus may be challenged, there does seem to be an international consensus that executing the mentally retarded is improper. And the Justices--who increasingly see themselves as part of an international community of high court jurists--may not have wished to remain too far out of step with their friends overseas.

Idiots versus Imbeciles: Justice Scalia's Proposed Historical Distinction

How should judges decide what punishments are "cruel and unusual?" At the very least, one might think that those punishments that the framers and ratifiers of the Eighth Amendment thought cruel and unusual in 1791 are barred.

In his dissent in Atkins, Justice Scalia, writing for himself, Chief Justice Rehnquist and Justice Thomas, suggested that under the historical approach, one should distinguish between idiots and imbeciles.

An "idiot," as the term was used in the Eighteenth Century, was a person who would now be classified as so severely retarded that he would be unable to form the mental state necessary for a criminal conviction. That is, he would never have the mens rea (guilty mind) the statute defining the crime required - whatever it might be. Such a person could not be executed in the Eighteenth Century or now, simply because he could not even be convicted of a crime.

Furthermore, even if an idiot managed to form the requisite intention, he would escape capital punishment under the precursor to the modern insanity defense. By virtue of his mental defect, the idiot could not tell right from wrong.

By contrast, the term "imbecile" was applied to persons of diminished intellectual capacity who nonetheless could be held criminally responsible for their conduct. Their intent might fulfill the statutory requirement of mens rea, even if in other respects they might be woefully lacking. And it could not be assumed that an imbecile would have no ability to distinguish right from wrong.

In modern nomenclature, an imbecile would be classified as mildly or moderately retarded. In the Eighteenth Century, imbeciles but not idiots could be executed for capital offenses.

Justice Scalia and the other two Atkins dissenters also contested the majority's application of modern tests. Nevertheless, for the dissenters, the Eighteenth Century understanding of the Eighth Amendment - and the ancient idiot/imbecile distinction - pretty much settled the case. Atkins claimed to be an imbecile rather than an idiot; therefore, the dissenters said, he should have lost.

For the majority of the Court however, the Eighth Amendment's meaning could not be frozen in 1791. The Bill of Rights, after all, bars "cruel and unusual punishments." It does not list specific practices that were thought cruel in 1791.

It is possible that the thumbscrew, the rack, or physical mutilation such as ear-cropping would not have been considered cruel by our forebears. Fortunately, though, the language of the Eighth Amendment invites us to decide for ourselves whether we think each of these practices is cruel - and that was what the six majority Justices in Atkins did.

Measuring Society's Evolving Standards of Decency

The Court's precedents interpreting "cruel and unusual punishments" bar those punishments inconsistent with "the evolving standards of decency that mark the progress of a maturing society." Under this approach, some punishments--such as burning at the stake--are categorically prohibited. Meanwhile, others--such as inflicting the death penalty on a shoplifter--are barred as disproportionate to the offense.

Atkins was a case about proportionality. Conceding the legitimacy of incarcerating a mentally retarded murderer, it posed the question whether in light of his disability, execution is a disproportionate punishment.

The inquiry into society's evolving standards can be quite subjective. For that reason, the Court has sought to circumscribe its moral discretion by looking first to objective indicia of society's standards. The leading indicator is legislative action.

In his majority opinion in Atkins, Justice Stevens cited the one-sided trend in Congress and the state legislatures. In 1989, only two death-penalty states barred execution of the mentally retarded. Today, the federal government and eighteen states do. Bills proposing bans are on the agenda in other states as well.

The dissenters objected that the majority's detection of a national trend was premature. More than half of the death-penalty states, they pointed out, still permit execution of the mentally retarded.

Who had the better of the numbers game? That depends on how you count. If one adds the states that have no death penalty at all to the states that exclude the mentally retarded from the death penalty, the result is 30-20 against the execution of the mentally retarded.

Moreover, only five states--Alabama, Louisiana, South Carolina, Texas, and Virginia--have actually carried out executions of the mentally retarded since the Court's 1989 decision in Penry. That calculus brings the score to 45-5.

Again, though, the numbers can be reckoned differently: for example, the five states that have executed the mentally retarded have a very substantial population.

Justice Scalia Challenges the Catholic Church's Authority

In addition to counting legislatures, the majority rested its finding of a national consensus on public opinion polls and the opinions of a diverse set of religions.

The dissenters in turn challenged the poll results and, in a remarkable footnote by Justice Scalia, dismissed the views of religious leaders. Justice Scalia, himself a practicing Catholic, had this to say about a brief filed on behalf of the Catholic Bishops of the United States: "The attitudes of that body regarding crime and punishment are so far from being representative, even of the views of Catholics, that they are currently the object of intense national (and entirely ecumenical) criticism."

How Powell and Blackmun May Have Foreshadowed O'Connor and Kennedy

Putting aside Justice Scalia's astonishing comment, let us turn to the heart of the matter, the question that is on observers' minds: Why did Justices O'Connor and Kennedy vote with the Atkins majority, and not with Scalia and the other dissenters?

Interestingly, they may be seen - consciously or unconsciously - as following a pattern set by prior moderate Republican Justices Lewis Powell and Harry Blackmun.

As a Justice, Powell carried out the death penalty, just as O'Connor and Kennedy have. But shortly after he retired, he announced that his experience with capital punishment convinced him that it should be abolished.

Justice Blackmun had a similar change of heart. Though he often voted to overturn individual death sentences, he believed that capital punishment was not per se unconstitutional and like Powell, O'Connor and Kennedy, he did carry it out, at least in some cases. But in his last year on the Court, Blackmun abandoned that view - stating memorably that he would "no longer tinker with the machinery of death."

Justice Blackmun's procedural objections to the death penalty, raised over the years, finally overwhelmed his belief in its abstract moral justifiability. The death penalty may have been acceptable in principle, he suggested, but the machinery used to carry out the penalty was hopelessly, irremediably flawed.

Although Atkins leaves the system of capital punishment intact for defendants who are not mentally retarded, it is tempting to see the journey of Justices O'Connor and Kennedy as falling within the same general pattern set by Powell and Blackmun before them: a growing dissatisfaction with carrying out the death penalty builds towards an abolitionist view based on qualms about its practical application.

The Greenhouse Effect?

More broadly, Atkins could be taken as evidence of what right-wing Court-watchers have dubbed the "Greenhouse Effect": Conservative jurists appointed by Republican Presidents come to Washington and, the pundits charge, in an effort to impress such liberal establishment figures as New York Times Court reporter Linda Greenhouse, lose the courage of their convictions.

The charge may seem particularly apt in the case of O'Connor and Kennedy. While generally voting with the conservatives on issues of states' rights and affirmative action, they have disappointed the right on abortion, gay rights, and now the death penalty.

I doubt, however, that the Greenhouse Effect was at work in Atkins. Indeed, on June 22, Greenhouse herself observed in the New York Times that "it is just as likely that the decision was a singular response to a particularly unattractive feature of the death penalty in the United States" as it was a portent of future anti-death penalty decisions. And although the Court again surprised analysts by its anti-death penalty ruling in this week's 7-2 decision in Ring v. Arizona, that case turned on quite different legal issues. How else to explain the fact that Justices Scalia and Thomas joined the anti-death penalty majority in Ring, while Justice O'Connor dissented?

But if the Greenhouse Effect was not at work in Atkins, what was? I would call it the "Strasbourg Effect" - the increasing international influence on the Justices' thinking.

What is the Strasbourg Effect?

Strasbourg, France is the home of the European Court of Human Rights, or ECHR. The ECHR is the Council of Europe's principal organ for interpreting the European Convention for the Protection of Human Rights and Personal Freedoms.

In recent years, U.S. Supreme Court Justices have attended numerous international conferences with their counterparts from the ECHR, the European Court of Justice (the judicial body of the European Union), and members of constitutional courts from other nations. Notably, Justices O'Connor and Kennedy are among the most enthusiastic participants in such conferences, and for many years Justice Kennedy has taught a summer course comparing American and European approaches to human rights in Salzburg, Austria.

What happens at these conferences? Increasingly, judges from Europe and the rest of the world have criticized the American justice system for, among other things, its reliance on the death penalty - with the execution of the mentally retarded coming in for special criticism. Perhaps Justices O'Connor and Kennedy reconsidered their prior decision upholding the execution of the mentally retarded in light of the passionate view of their European colleagues.

Granted, the Atkins majority certainly did not rule as it did so that the Justices could avoid future awkward moments at their international cocktail parties. Yet it is not difficult to imagine that world opinion weighed on their minds.

To be sure, Justice Scalia and his fellow dissenters scoffed at the idea that global practice might have some relevance to the case. The "notions of justice" of the world community, they said, "are (thankfully) not always those of our people."

But unlike the dissenters, the six-Justice majority in Atkins was unwilling to exacerbate the world view of the United States as a rogue nation. Indeed, a footnote in Justice Stevens' majority opinion approvingly cited a European Union friend-of-the-court brief describing overwhelming rejection by the world community of the execution of the mentally retarded.

Meanwhile, in another friend-of-the-court brief, a group of former high-ranking U.S. diplomats had urged the Justices to bar execution of the mentally retarded. They argued that America's deviance from the global consensus was causing substantial friction with our allies, especially in Europe. The diplomats urged the Court to, in the words of the Declaration of Independence, show "a decent respect to the opinions of mankind."

Of course, this brief - unlike the EU's brief - was not mentioned in the Court's opinion. And rightly so: It would be highly inappropriate for Justices of the Supreme Court to decide a case by trying to guess what result would advance the country's diplomatic interests.

Nevertheless, where the law invites an inquiry into "the evolving standards of decency that mark the progress of a maturing society," the Strasbourg Effect may be not only inevitable but desirable. As FindLaw columnist Akhil Amar observed last year, Americans could profit from a trans-Atlantic dialogue on capital punishment. If Justices O'Connor and Kennedy did listen carefully to the opinions of their European colleagues and use them to inform their own death penalty views - not out of a naked desire to curry favor with Europe, but because they wanted to gauge the world's evolving standards of decency - they should be commended.