When you think about it — and, promisingly, an increasing number of us are — it is distinctly odd that the U.S. Supreme Court should even be taking up two cases questioning the execution of the retarded. This is one of two lines that should mark the death penalty off as unthinkable even to its supporters.
If there can be any case for execution, the case must be founded on a moral bedrock that holds only the knowing and the capable to the ultimate account for capital crimes. The extreme penalty cannot by any decent rationale be extracted from persons on whom the presumed lesson is lost, who because of their immaturity could understand neither the sanctions against their crime nor the consequences of its commission.
Yet here we are, one of only a handful of nations — and those are embarrassingly shabby company — that still kill the retarded and juveniles.
Only six nations since 1990 have executed offenders for crimes committed as juveniles — us, of course, and Pakistan, Iran, Nigeria, Saudi Arabia and Yemen. Sorry if this is not P.C., but that is not a roll call of enlightened societies. We had, at last count, 74 on our death rows in line for execution for juvenile crimes.
Of the 38 states with capital punishment, 23 execute for juvenile crime, with no apparent widespread revulsion at the idea. Indeed, we seem ever keener to treat our erring children as adult criminals, even, as in a recent Florida case, middle-school kids.
Perhaps it is because, in contrast, there's evidence that opinion is shifting away from executing the retarded that the Supreme Court is revisiting that issue at last.
The justices ruled only 12 years ago that it was constitutionally just fine to kill the retarded. At the time, only two states forbade the practice, but now 13 do and Congress has barred such executions for federal crimes.
The court recently heard the claim in a Texas case that juries should be told clearly they can take a convict's retardation into account in deciding the sentence. The defendant in that case has the IQ of a 7-year-old. In a pending North Carolina case, the justices will reconsider the very constitutionality of executing the retarded.
Executions do no deter crime. Their knowledgeable supporters no longer even bother to try to make that case. The evidence is definitive.
If, then, the death penalty is to be anything more than simple revenge — a state-sanctioned act of theatrical bloody-mindedness — it must be rooted in a moral argument.
The execution of juveniles and the retarded have, to credit them, typically nothing better than the crudest political opportunism, the clamor of grandstanding candidates. Bill Clinton, to prove his capital punishment bona fides when he was first running for president, flew to Arkansas to be present for the execution of a man so profoundly brain damaged he wanted to save the dessert from his last meal to have after his execution.
Justice is shamed when we kill the uncomprehending and the incompetent in its name.
Tom Teepen is a columnist for Cox Newspapers. He is based in Atlanta. E-mail: teepencolumn(at)coxnews.com.