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Much has been written about the acrimony characterizing many of the Supreme Court’s death penalty decisions in recent years. Indeed, the dissenting opinions in Atkins are extraordinarily pointed, with Justice Antonin Scalia writing: “Today’s decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” Atkins v. Virginia, 122 S. Ct. 2242, 2257 (2002). The dissent goes on to characterize the majority opinion in terms such as, “pretty flabby language,” “grab bag of reasons” and “the Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus.’” This linguistic overkill has become typical — and, if one admits to a guilty reading pleasure, adds a bit of flair and humor to the Supreme Court Reporter. However, a little-noted dissent, issued in a case just 17 days before Atkins, casts a much more ominous light on the hostility that characterizes the Court’s death penalty debate. In Moore v. Texas and Davis v. Texas, 122 S. Ct. 2350 (2002), two death row inmates filed last-minute petitions, asking the Court to stay their executions pending the outcome of Atkins. Both petitioners claimed that they were mentally retarded and would not be eligible for execution if the imminent decision in Atkins declared execution of the retarded unconstitutional. On May 1 and 7, the Court granted the stays. On June 3, justices Scalia, Clarence Thomas and Chief Justice William Rehnquist published a strong dissent from the grant of the stays, characterizing the majority’s decision as “unprecedented.” Had Atkins been decided in favor of the state, the dissent in Moore and Davis would be quickly forgotten, the stay vacated and the petitioners dead. But Atkins was not decided in favor of the state, and by a 6-3 majority, the Court declared the execution of retarded people unconstitutional. The dissenters in Atkins were Scalia, Thomas and Rehnquist, the same three jurists who dissented from the Moore and Davis stays. This raises an interesting question: At the time they urged denying the stay to Curtis Moore and Brian E. Davis, did the dissenters know that Atkins was about to bar execution of the retarded? It is, of course, impossible for any outsider to know when the Supreme Court reaches a firm and final decision on a case. A cynic might think, however, that 17 days before Atkins was published, the three dissenters were aware of what the decision would be. And if that is the case, it certainly looks unseemly for three justices to urge the immediate execution of a petitioner, when they know that the legal grounds he wants to assert are about to be given the stamp of approval from the rest of the Supreme Court. Scalia is surely correct when he points to the enormous procedural hurdles Moore and Davis must still overcome to get relief. And even if they manage to get beyond the bars on successor petitions, the preservation and exhaustion questions and other claims of procedural default, they will still have to convince a court that they are mentally retarded — no sure thing, considering the inconsistent evidence on that issue cited by the dissent. But it is also surely correct that no one knows how the decision in Atkins will fit within the incredibly complex procedural and substantive post-conviction rules in the various states. Denying a stay of execution to a death row inmate who is trying to avail himself of the new decision seems excessively zealous, even for the strongest advocates of capital punishment. The reason for much of the ferocity in the Court’s death penalty jurisprudence might be found in a small footnote to the majority opinion. Justice John Paul Stevens noted that “[d]espite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit.” 122 S. Ct. at 2252 n.25. This doubt about the ultimate accuracy of death penalty verdicts may be what fueled the remarkable trio of capital cases in the 2001-2002 term. It may well be that the rancor on the Court over capital punishment cases results from several justices having been moved by the mounting evidence of death row exonerations, and from at least three justices who have not.

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