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Rethinking the Death Penalty
by Brian S. Wise

Is the Supreme Court correct in its ruling that retarded people should not be executed? Something is fishy, considering that only in this situation are retarded people actually being called "retarded," instead of the commonly used "mentally handicapped" that has replaced its usage everywhere nowadays.


Rethinking the Death Penalty
Brian S. Wise
Tuesday, 25 June 2002

Concerning the Supreme Court decision regarding the death penalty and the retarded:

One: There was only a brief flurry of print and electronic debate over the matter, the normally very politically correct media choosing to refer to those affected – that is, those being let off the hook by the ruling – almost exclusively as “the retarded” as opposed to the more conventionally used “mentally handicapped.” The intent here is subtle: everyone’s illusion of “the retarded” is essentially the same, those unfortunate souls so horribly ravaged by one abnormality or another they cannot walk but for their bodies hunched over and cannot smile but for their tongues hanging out of their mouths. We are thinking of Special Olympians, not the actual death row inmates under consideration.

What distinguishes the retarded inmates from the others? They are dumber and slower than the average death row inmate (still, one guesses, no less guilty) and should, according to the Court, be lent special consideration. One could rationally suppose the average death row inmate isn’t among his generation’s more profound intellectuals, and so the problem rather quickly becomes how to distinguish the retarded from the borderline from the stupid from those who are pretending, trying to save their own lives. There is a solution to the problem, namely the States have at their disposal people whose job it is to determine who is retarded and who isn’t from case to case, no matter how long it will take or, in regards to this ruling, the new backlog of reevaluations.

Two: This forces us to rethink the death penalty, no matter how we may believe; if executing the retarded is cruel and unusual punishment, why isn’t executing the non-retarded cruel and unusual? Good question; whatever is cruel and unusual is truly in the eye of the beholder, as the Court has offered in this case no special guidance, other than those cases previously decided. (Equally ambiguous; crucifixions are no-no’s, so is burning at the stake; otherwise decisions have swayed this way and that, often depending on public sentiment.) The Fathers themselves offered no extraordinary direction, except that we are to avoid that which is cruel and unusual, when it comes to punishment. (Apparently cruel and unusual taxation is just fine.)

All right; but the beholder (here, the populace) has rather plainly stated its majority opinion: there are such things as crimes so hideous, those criminals should be forced to pay for them with their own lives. The oddity is the new inequity; those crimes which were last week sinister enough to draw a death sentence are today punishable according to your mental development, not the nature of the crime. In other words, two identical crimes in the same city can see one death sentence and one life sentence, depending entirely upon five intelligence quotient points.

Typically, the States have been left to straighten up the Supreme Court’s mess. From this decision will come Statehouse debates over just what is retardation and what isn’t, therefore who can be executed and who cannot. From these definitions distinct lines will be drawn, and at some point civil libertarians will take to the Supreme Court a fight over a particular State’s own standards, deeming them too strict. The Court will be forced to rule, but not on the matter of what constitutes retardation as a whole, merely on said State’s particular definition. A slippery slope has not necessarily been iced over, so much as a can of worms has been opened: we’re not descending into anything severe, just creating more borderline headaches for ourselves.

Three: The number of innocent and retarded death row inmates obviously cannot be known; one assumes the number is small, in that most of the people on death row deserve to be there, no matter their mental condition. One could make the argument the Court’s decision was partially meant to address some of the inherent flaws within capital punishment itself. Goes a certain logic, the retarded are less able to assist in their own defense, therefore at an inherent disadvantage. Well sure; the judicial system’s strongest feature is also its greatest flaw: it’s of the people, and people are occasionally going to make mistakes. No one wants to see an innocent man convicted; goes the old axiom, it’s better to release 100 guilty men than convict one innocent man. Here, here.

In this instance, no one is suggesting the inmates in question are innocent, only that they are mentally unaware of their actions, therefore not responsible for them. A certain sense of decency leads many to agree; the question is asked, Would you execute a five-year- old for the same crime? Of course not, but a five-year-old couldn’t physically force himself to commit a death penalty offense, he’s too small. Retarded men are grown men, and insofar as to suggest that even a five-year-old can be taught of the consequences of his actions, so should a retarded man be taught of the consequences of his actions.

Again, we’re not discussing whether or not States have the right to execute Special Olympians, but instead those killers exponentially slower and dumber than the majority. The difference between the two entities is clear to everyone, except, that is, the Supreme Court.



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