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Jewish World Review June 26, 2002/ 16 Tamuz, 5762

Don Feder

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How would the Court fare on an IQ test? | In Atkins vs. Virginia, handed down last week, the Unites States Supreme Court substituted the judgment of six justices for that of 20 state legislatures.

The majority decided that the Eighth Amendment's ban on cruel and unusual punishment precludes the execution of murderers who are mentally retarded. Of the 38 states with capital punishment, 20 allowed execution of the retarded.

Leave aside the fact that this manifestly is not what was meant by "cruel and unusual punishment" in 1781. (The drafters were thinking of drawing and quartering and the rack, not executing the congenitally backward.)

In his majority opinion, Justice John Paul Ringo Stevens explained that the ruling is based on a "national consensus that has developed" against the practice.

You will search the Eighth Amendment in vain for even a hint that "cruel and unusual" is to be defined by a consensus, national or otherwise. In reality, the majority is saying that cruel-and-unusual is whatever it sasy it is, based on whatever evidence it can muster.

"Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," charged Justice Antonin Scalia in his dissent. Given the penchant of liberal justices for personalizing the Constitution, that's saying a lot.

Mt. Olympus (aka, the Supreme Court) provided no guidance for death-penalty states. Is the determination of retardation to be based solely on low IQ, on the opinions of so-called experts, or on whether or not the defendant is a pro wrestling fan?

The court is not only substituting its judgment for that of legislatures and governors, but also for judges and juries.

For a mentally deficient defendant to stand trial, a court must find him competent by ascertaining that he knew what he was doing and could control his actions. At sentencing, the jury can consider mental capacity as a mitigating factor.

If a retarded defendant understood that his actions were wrong, and was capable of conforming his conduct to the requirements of society -- and if a jury ruled out his substandard intelligence as a mitigating factor -- then the rationale for not executing him appears to be nothing more than pity.

But if the retarded are so deserving of our sympathy that they are not to be executed for premeditated murder, why should they be punished at all -- for this or any other crime?

Daryl Atkins, admittedly not the brightest bulb in the pack, had the mental capacity to kidnap Eric Nesbitt, who was serving his country at Langley Air Force Base in Virginia in 1996.

Atkins and an accomplice forced Nesbitt to withdraw $200 from an ATM. (It should be noted here that those who commit murder for $200 are not, as a rule, rocket scientists.)

Still, Atkins' disability didn't prevent him from driving the victim to a field and shooting him eight times.

A state psychologist who interviewed Atkins said he was of average intelligence. In his report, the psychologist noted that Atkins used some sophisticated words and could name the last two U.S. presidents, as well as the current governor of Virginia.

For the Supreme Court, the overriding consideration was Atkins' good fortune to score 59 on an IQ test. (The average adult scores around 100.)

Memo to hoods, thugs and assorted scum: Take a standard intelligence test now. Unless you play chess like a grand master and read Kierkegaard for fun, one day, it could be your get-out-of-the-gas-chamber-free card.

What does the decision in Atkins do to the proposition that the mentally retarded should be treated like everyone else?

For most jobs, you can't refuse to employ someone with a low IQ. These individuals (and most are gentle souls) can obtain drivers licenses, marriage licenses and even gun licenses. They can vote and serve on juries.

But if they commit first-degree murder, even with great cruelty, a "developing national consensus" -- discovered by the Supremes and retroactively read into the Constitution -- will not allow their execution.

Pray that Bush gets at least two Supreme Court appointments in this term and that he applies his mental powers to choosing wisely. Perhaps potential nominees should be required to take an intelligence test, with emphasis on comprehending a documents' clear and unambiguous meaning. Amendment.

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JWR contributing columnist Don Feder's latest books are Who is afraid of the Religious Right? ($15.95) and A Jewish conservative looks at pagan America ($9.95). To receive an autographed copy, send a check or money order to: Don Feder, The Boston Herald, 1 Herald Sq., Boston, Mass. 02106. Doing so will help fund JWR, if so noted. He is also available as a guest speaker. To comment on this column please click here.

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© 2002, Creators Syndicate