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“We’ll have a cow,” said George. “An’ we’ll have maybe a pig an’ chickens … an’ down the flat we’ll have a … little piece alfalfa-” Lennie begged, “Le’s do it now. Le’s get that place now.” “Sure, right now. I gotta. We gotta.” And George raised the gun and steadied it, and he brought the muzzle of it close to the back of Lennie’s head. The hand shook violently, but his face set and his hand steadied. He pulled the trigger. The crash of the shot rolled up the hills and rolled down again. Lennie jarred, and then settled slowly forward to the sand, and he lay without quivering. – John Steinbeck, “Of Mice and Men” (1937) George still seems to be with us when it comes to dealing with mentally retarded people. We’re continually conflicted: One instinct is to guide and protect them from the world, but our fears lead us to try to protect the world from them. We coddle them, and sometimes we kill them. Or, at least, we did until last month. That’s when the Supreme Court decided Atkins v. Virginia, holding that executing mentally retarded people violates the Eighth Amendment’s prohibition on cruel and unusual punishments. The opinion, written by Justice John Paul Stevens and joined by five other justices, overturned the Court’s 1989 decision in Penry v. Lynaugh, which had allowed such executions. At first blush, there seems to be nothing to object to in the new holding: Who but barbarians could reasonably think to use executions to punish or deter people who can’t control or understand what they’re doing in the first place? Until, that is, you read the very first sentence of Stevens’ majority decision: “Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes.” Think about that. Now we’re civilized enough not to kill people too mentally incapacitated to understand what they were doing, but we’re still willing to throw those people in prison for what they did. What sense does that make? PRISON INSTEAD Unfortunately, the only discussion of this irony comes in one of those blistering dissents by Justice Antonin Scalia. “Mentally retarded offenders ‘face a special risk of wrongful execution’ because they are less able ‘to make a persuasive showing of mitigation,’ ‘to give meaningful assistance to their counsel,’ and to be effective witnesses,” he quotes the majority as stating. Then the zinger: “If this unsupported claim has any substance to it (which I doubt), it might support a due process claim in all criminal prosecutions of the mentally retarded.” Well, actually, yes. But Stevens’ majority opinion assumes away the problem. Instead, it simply asserts of mentally retarded wrongdoers that “Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability,” and assures us that they “frequently know the difference between right and wrong and are competent to stand trial.” But if mentally retarded defendants really do face all those problems that Stevens and Scalia listed, why do we have any more faith in their ability to defend themselves against felony charges that could land them in prison for life than against capital crimes that could strap them to a gurney? The American Law Institute’s “Model Penal Code” — which Scalia mentions in his dissent — states that “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” That’s pretty similar to what Stevens says of mentally retarded people — that “there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan.” Yet Stevens uses that reasoning only to protect them from execution, not from prosecution. Isn’t the greater tragedy going to be not the scores or hundreds of mentally retarded people on death row, but the tens of thousands (or more) prosecuted and punished for noncapital crimes? None of the justices seem to notice that the constitutional wrong isn’t merely that juries sentence people like Daryl Atkins to death — it’s that we’ve put people like Atkins on trial in the first place. WISER NOW? What the justices — and the media — have picked up, though, is the rationale that changing societal values can have constitutional ramifications. In 1989, it was civilized to execute the mentally retarded. Now it’s cruel. What changed — and what changed so quickly? As Stevens puts it, the “consensus” of “the American public, legislators, scholars, and judges” has changed since Penry was decided. “State legislators across the country began to address the issue,” he writes, and have generally reacted against it. “The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.” There’s something intuitively reassuring about that sort of reasoning. It’s the modern-day manifestation of the late Justice William Brennan Jr.’s exhortation that “The genius of the Constitution rests not in any static meaning it may have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs.” Brennan, of course, was acknowledging that when it comes to interpreting the Constitution, most of us don’t want to be fully bound by the world of 1788. But at the same time, Scalia is onto something when he writes (in one of his milder passages) that “reliance upon ‘trends,’ even those of much longer duration than a mere 14 years, is a perilous basis for constitutional adjudication.” Constitutional values, most people would agree, should have more durability than the latest push poll. The fact is that the Constitution has always altered meaning with the times. In 1896, the Court held racial segregation to be perfectly legal. In 1954, it changed its mind. Granted, that momentous shift came after decades of social strife. But the Court has also changed its mind much more rapidly. In 1966, the Court held that it was unconstitutional for states to impose poll taxes — overruling a decision from 15 years before. In 1944, the Court held that it was unconstitutional for a state political party to exclude minorities from its primary — overruling a decision from nine years earlier. And in 1943, the Court held that Jehovah’s Witnesses had a First Amendment right to refuse to salute the American flag — reversing a decision from only three years before. Did the justices just somehow see the error of their ways in these cases? Or did they look to popular opinion? If the latter, did that opinion arise from Stevens’ cherished societal consensus? Or from Scalia’s feared trends? And was there an actual change? Or merely the justices’ perception of one? Is there really any way to tell? CONSENSUS RULES Whether the justices admit it or not, the world we all inhabit inevitably influences how they decide cases (at least some of the time, in some cases). Consensus can lead to decisions that are cause for celebration, like Brown v. Board of Education or Atkins v. Virginia. But it can also lead to cases like United States v. Drayton. That’s another opinion decided last month, in which the Court held that police officers can enter a bus, stand by the doors, and ask random passengers if they can search their luggage and what their travel plans are — all without telling the passengers that they have the right to just say no. To be sure, there was Supreme Court precedent favoring that outcome. But it’s also noteworthy that in opening remarks at oral argument the Justice Department lawyer said: “These encounters are also important in today’s environment with respect to the protection of passengers in the Nation’s public transportation system.” So while the police on the bus in Florida were concerned with stopping the spread of drugs, the government suggested that the justices should be concerned as well with stopping the next Sept. 11. And the justices, no doubt, know that Americans these days support “security” uber alles, no matter what the Constitution might say. That fear of terrorism and that new societal consensus probably aren’t going away any time soon. And thus neither is the pressure on the justices to reconsider and restrain civil liberties. Which leaves only two rays of hope for protecting our hard-won constitutional rights. It’s possible that the Court won’t entirely follow its own logic as it considers how to respond to terrorism — issuing opinions, like the one in Atkins, that jibe with societal consensus, but only so much. And it’s also possible that someday we’ll be lucky enough to look back at our current willingness to sacrifice our liberties, as we can now look back at executions of mentally retarded people, as one of those extremely unfortunate trends. Evan P. Schultz is associate opinion editor at Legal Times . His column, “Controversies & Cases,” runs regularly in Legal Times.

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