- 28/08/01

Catholics Against Capital Punishment

EXECUTING THE MENTALLY RETARDED IS UNCONSTITUTIONAL, RELIGIOUS GROUPS ARGUE IN SUPREME COURT BRIEF

Following are excerpts from an amicus curiae (friend of the court) brief filed June 8 in the U.S. Supreme Court by attorneys for the United States Conference of Catholic Bishops and other religious organizations in the case of McCarver v. State of North Carolina. Petitioners in that case argue that the execution of persons with mental retardation violates the standards of decency of American society and the Eighth Amendment's guarantee against cruel and unusual punishment.

The high court was expected to hear arguments in the case this fall, but, as this issue of CACP News Notes goes to press, it is not certain whether such hearings will take place. The case involves a North Carolina death row inmate, Ernest P. McCarver, whose lawyers say has an IQ of 67. In early August, North Carolina enacted a law barring executions of persons with IQs below 70, and state officials now contend that the new law, which is retroactive, makes the McCarver case moot. Observers say that even if the court agrees not to hear the McCarver case, they could use two other cases - one in Alabama, the other in Missouri - to address the issue.

 In a 1989 case, Penry v. Lynaugh, the Supreme Court ruled 5-4 that executions of the mentally retarded did not violate the Eighth Amendment, since a "national consensus" had not developed against such executions. At that time, only two states with death penalty laws banned such executions. Today, 18 of the 38 death penalty states have such laws, and 12 states ban the death penalty completely -for a total of 30 in which execution of the mentally retarded is prohibited.

Excerpts from the brief follow:

 Representatives of widely diverse religious communities in the United States - reflecting Christian, Jewish, Muslim, and Buddhist traditions - unite here as amici curiae on behalf of the Petitioner. These amici have differing views about the death penalty as a whole. Some object to it in principle, opposing it at all times and in all circumstances; others do not.

 Notwithstanding complex and often highly nuanced differences in theology and moral outlook, all of these amici share a conviction that the execution of persons with mental retardation cannot be morally justified. In our view, such executions violate the standards of decency of American society and the Eighth Amendment guarantee against cruel and unusual punishment.

 Historically, the religious community has always worked to set and improve social standards of justice, equity, behavior, and decency. From the Nation's founding, and especially during times of intense debate on moral issues, the religious community has played a pivotal role in shaping the national conscience. The amici's collective views are therefore an important benchmark of the Nation's evolving standards of decency.

 Moreover, the amici by their nature have experience and expertise in evaluating moral questions such as capital punishment. Drawing on that experience and expertise, we are convinced that applying the death penalty, a punishment that this Court has said must be reserved for the most blameworthy, to persons with mental retardation - those whose intellectual and adaptive impairments by definition render them among the least blameworthy - is the very embodiment of arbitrariness and disproportionality which this Court rejected in Furman and other cases.

 Such a practice also fails to serve the legitimate ends for which punishment may be imposed. The execution of persons with mental retardation in those jurisdictions that do not yet affirmatively forbid it violates the central lessons of this Court's death penalty decisions and is contrary to contemporary standards of decency.

 As religious bodies and religiously-affiliated organizations, we are uniquely qualified to comment on moral issues such as the death penalty. Few (if any) institutions can claim a greater tradition of working with and studying the conscience of the human person and related questions of guilt, blame and punishment than the religious community. These amici have developed a rich tradition of reflection and scholarship that has informed and been informed by the experience of countless millions of people over centuries. Failure to consider these views would diminish the authority this Court would bring to the resolution of these essentially moral questions.

 The Court must look to the views of expert and moral authorities to resolve Eighth Amendment questions. When, for example, the Court considered the constitutionality of the death penalty as applied to 16- and 17-year-old offenders, four Justices examined the views of various religious organizations, including some of the amici here.

 Respected professional organizations are among the sources this Court has consulted in assessing whether punishment is disproportionate and in identifying evolving standards of decency. Twelve years ago, for example, when this Court first took up the question of the constitutionality of executing persons with mental retardation, it considered and placed particular emphasis on the views of the American Association on Mental Retardation.

 It would be unwise to dismiss as "uncertain" or "unobjective" the considered judgment of the Nation's churches, synagogues, mosques, and temples. These bodies exist for the very purpose of educating, uplifting, and inspiring our citizenry and, perhaps more than any other institutions, they shape the evolving standards of morality and decency to which the Eighth Amendment's requirements are inextricably tied. As developed immediately below, the views of religious organizations are an especially helpful means of identifying forms of punishment that do and do not constitute a "reasoned moral response" (Penry v. Lynaugh, 1989), that conform to "evolving standards of decency."

Morality and decency are subjects on which religious bodies legitimately can claim a particular experience and competence. Every revival of the conscience of the country has had as its center religious leaders and congregation. Whether the call was for abolition, or temperance, or equal rights under law, religious leaders have been in the forefront of these movements. We have not abandoned our prophetic voice as we exhort our people and our fellow citizens to abandon the paths of war or to show solidarity with the least fortunate among us. Although we disagree among ourselves on the morality of capital punishment generally, we join our voices to urge the Court to see the indecency of executing persons with mental retardation.

 This Court's insistence on "individualized consideration as a constitutional requirement in imposing the death sentence," (Lockett v. Ohio, 1978), has never prevented it from declaring that certain categories of crimes and certain classes of defendants are constitutionally beyond reach of the death penalty. A similar exemption for persons with mental retardation is warranted by virtue of the Nation's evolving standards of decency, as demonstrated by the views of these amici.

 All the amici agree that the death penalty - a penalty this Court has said must be reserved for the most blameworthy - should not be imposed upon persons with mental retardation because of their diminished capacity. Furman's command that arbitrariness be avoided in capital sentencing dictates this result, for nothing could be more arbitrary than to subject those who are least blameworthy to a form of punishment reserved for the most blameworthy.

 The same low levels of intellectual functioning that characterize children and differentiate them from adults of normal functioning are present in all persons with mental retardation. If, as this Court said in Thompson v. Oklahoma (1988), there is some chronological age below which execution would "self-evident[ly]" violate the Eighth Amendment, then necessarily there is some level of intellectual functioning below which it would be unconstitutional to carry out the death penalty. We believe the execution of any person with mental retardation is unconstitutional.

 For these reasons, and for the other reasons set forth in this Brief, we respectfully request that the judgment be reversed.

 List of participating religious groups and text of bishops' conference views:

The accompanying U.S. Supreme Court brief included explanations of the various amici's views on the death penalty, and noted that such views varied. For example, the view expressed by Masjid Malcolm Shabazz, a Muslim religious house of worship in New York City founded in 1956 by the late Malcolm X, pointed out that Islamic law generally permits the death penalty for serious, knowingly committed capital crimes, but forbids the execution of persons with mental retardation.

 In addition to the U.S. Conference of Catholic Bishops and the Muslim group, ten other religious organizations were represented in the brief. All argued that the execution of persons with mental retardation violates contemporary standards of decency. They included the American Jewish Committee; the Commission on Social Action of Reform Judaism; the Evangelical Lutheran Church in America (ELCA); the Foundation for the Preservation of the Mahayana Tradition, Inc.; the General Board of Church and Society and the General Board of Global Ministries of the United Methodist Church; the General Synod of the United Church of Christ; Clifton Kirkpatrick, as Stated Clerk of the General Assembly of the Presbyterian Church (USA).; the Mennonite Central Committee (MCC), U.S. Washington Office; the Progressive Jewish Alliance (PJA); and the Unitarian Universalist Association.

 Following are the views expressed in the brief by the U.S. Conference of Catholic Bishops:

 The Catholic Church accepts in "principle that the state has the right to take the life of a person guilty of an extremely serious crime...." (U.S. Bishops' Statement on Capital Punishment, Nov. 1980). But the execution of an offender, the Church teaches, can be justified only "in cases of absolute necessity," that is, when "it would not be possible otherwise to defend society." (Pope John Paul II, Evangelium Vitae (The Gospel of Life) � 56). "Today ... as a result of steady improvements in the organization of the penal system, such cases are very rare if not practically non-existent." (Id. See also Catechism of the Catholic Church � 2267 (2d ed. 1997) ("the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the ONLY POSSIBLE WAY of effectively defending human lives against the unjust aggressor") (emphasis added).*

 In the United States, those Catholic bishops who have addressed the issue have concluded that the execution of persons with mental retardation is especially inappropriate. In 1999, for example, while reiterating their opposition to the death penalty generally, the Catholic bishops of Texas issued a statement urging an end to the execution of persons with mental retardation. The bishops began by comparing the lesser culpability ascribed to persons with mental retardation with that of children:

"Children aren't held to a standard beyond their mental capacity. To hold them to such a standard would be clearly unreasonable.

 "Mentally retarded persons by definition have sub-average intellectual functioning with concurrent deficits in socially adaptive behavior. That is not to say such persons cannot tell right from wrong or should not be held responsible for criminal behavior. However, the death penalty is the most extreme sanction available to the state, and is therefore reserved for offenders who have the highest degree of blameworthiness for an extraordinarily aggravated crime.

 "How can an individual who by definition is significantly intellectually impaired ever meet the highest standard of blame required for such a penalty? It is not a simple question of knowing right from wrong. It is rather an issue of proportionality and equity...."

 (Statement by the Catholic Bishops of Texas Opposing Execution of the Mentally Retarded, Jan. 21, 1999).**

Footnotes:

* This universal teaching of the Church is mirrored in the statements of the Catholic bishops of the United States who, "[f]or more than 25 years," have "called for an end to the death penalty in our land." (Statement of the Administrative Board, United States Catholic Conference, "A Good Friday Appeal to End the Death Penalty," March 1999). The bishops' appeal to abolish the death penalty is based on their conviction that "in the conditions of contemporary American society, the legitimate purposes of punishment do not justify the imposition of the death penalty." (U.S. Bishops' Statement on Capital Punishment, Nov. 1980).

** See also Catholic Bishops of Oklahoma, Statement in Opposition to Capital Punishment (1983) (noting that, even when a person is found guilty beyond a reasonable doubt, real errors can occur, such as an "inappropriate assessment of culpability as in the case of mentally retarded persons"), reprinted in J. Gordon Melton, Capital Punishment: Official Statements from Religious Bodies and Ecumenical Organizations (1989).

Diplomats call practice 'cruel and uncivilized':

Also submitting a friend-of-the-court brief in the McCarver case was a group of nine American diplomats with more than 200 years of combined service. The former ambassadors termed executing the mentally retarded a "cruel and uncivilized practice," arguing that it diminishes the moral authority of the U.S. and makes it easier for authoritarian countries to dodge criticism of their human rights records.