The Ultimate Outrage

With its decision Monday that the Constitution does not forbid the execution of teen-agers and the mentally retarded, the U.S Supreme Court has done violence not only to the Eighth Amendment, but also to the ability of Americans to stand unblushing among the civilized peoples of the world.

If the constitutional prohibition of “cruel and unusual punishment” does not preclude the state-sanctioned killings of those who only have attained a child’s years and never will attain more than a child’s mind, it is difficult to determine what--short of drawing and quartering--it does forbid. Perhaps stoning, though the question has not been put to the court’s new conservative majority.

What it might decide in such an event cannot be adduced by the international company in which the court now has placed the United States. Among the 159 members of the United Nations, only five others--Iran, Iraq, Pakistan, Bangladesh and Barbados--permit the execution of those whose crimes were committed before the age of 18. No other reasonably advanced country with the capacity to agree upon and measure mature intelligence allows those found deficient to be liable for the death penalty.

The humane and logical conclusions suggested by these facts, as well as ordinary decency, were lost on Justice Antonin Scalia, who, writing for the 5-4 majority in the cases of Kevin Stanford vs. Commonwealth of Kentucky and Heath A. Wilkins vs. Missouri, held that he found “neither a historical nor a modern social consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age. Accordingly, we conclude that such punishment does not offend the Eighth Amendment’s prohibition against cruel and unusual punishment.”

Similarly, Justice Sandra Day O’Connor, writing in the case of Penry vs. Lynaugh, found that “mental retardation is a factor that may well lessen a defendant’s culpability for a capital offense. But we cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person . . . simply by virtue of their mental retardation alone . . . An individualized determination of whether ‘death is an appropriate punishment’ can be made in each particular case.”

As a consequence of that thinking, the state of Texas may one day take John Paul Penry, a 32-year-old man with the intellect of a 7-year-old, strap him, frightened and uncomprehending, to a gurney and kill him with an injection of poison. That will be a moment of dishonor to the United States of America and to a system of justice that increasingly is without mercy.