Justice Alito Sure Wants to Kill the "Mentally Retarded"

Yesterday, the Supreme Court, by a 5-4 margin, decided that if a prisoner's IQ is within a margin of error of "mentally retarded," the prisoner should not be executed. That's pretty much it. Just a touch more humanity, if you can use that word, when it comes to capital punishment. It's significant in that the majority, led by Anthony Kennedy, said that individual states should not get to decide, arbitrarily and rigidly, what "retarded" is for people convicted of crimes punishable by the death penalty. It makes sense, if you think about it. If you're "retarded" in Massachusetts, you should be "retarded" in Florida (make your own Florida joke there).

All in all, the decision reaffirmed the 2002 judgment in Atkins v. Virginia, which was 6-3 against the state killing people with the IQ of a particularly well-trained schnauzer. Yesterday's Hall v. Florida ruling also affirmed that more than IQ should be taken into consideration when determining the relative "retardation" of the "retarded." (Note: "Retard" and its variations are used dozens of times in the opinion and the dissent, always in quotation marks.)

Of course, there's the four who disagreed, and, in a dissent written by Justice Samuel "You better not talk shit about SCOTUS" Alito, the conservative members of the court said, more or less, "C'mon. Let us kill us some motherfuckin' retards."

The biggest point of contention for the dissenters is that the majority wants to rely on "experts" and "science" to determine who is mentally challenged and who is not. Alito says that the unwashed mob should get to say who is or isn't: "Under our modern Eighth Amendment [no cruel and unusual punishment] cases, what counts are our society's standards-which is to say, the standards of the American people-not the standards of professional associations, which at best represent the views of a small professional elite." That's a line that could have been written by a Tea Party politician in his sleep. Oh, we certainly don't want the elite (or, you know, "the best") making decisions that are better settled by people scratching their nuts while watching Fox "news." We don't want scientist losers telling us all what the science says.

Alito lists the reasons this is bad. That includes: "because the views of professional associations often change, tying Eighth Amendment law to these views will lead to instability and continue to fuel protracted litigation." Yes, and the whims of society are fixed and immutable. It's not like we ever executed people for idiotic reasons in the past, like being an escaped slave or a witch or gay. Alito wants state legislators to make a determination based on the going rate of "retardation." In that case, sure, maybe Massachusetts stupid isn't quite as stupid as Florida stupid. "Practical problems like these call for legislative judgments, not judicial resolution," Alito writes.

Even more disturbing, Alito says, "[T]he Court binds Eighth Amendment law to definitions of intellectual disability that are promulgated for use in making a variety of decisions that are quite different from the decision whether the imposition of a death sentence in a particular case would serve a valid penological end." So now, for Alito, there's "smart enough to kill" versus "smart enough to get a job." The former would be a much lower threshold than the latter. That's some fine jurisprudence there.

What's bizarre is just how badly Alito, Roberts, Scalia, and Thomas want to ensure that the most people possible are executed by state governments. The majority is saying, "Hey, what the fuck? Just take a fuckin' breath and let's make sure we're doing our barbaric punishment in the best way possible." That's not enough for the conservative justices. They want blood, goddamnit. They want to bathe in blood, get drunk on blood, pass blood around for all to enjoy.

Remember, too, that Scalia and Thomas were part of the losing side in 2002. They don't fuckin' care who is murdered by the state. In his dissent on that case, Scalia, pretending to be an originalist, really wrote, "The Court makes no pretense that execution of the mildly mentally retarded would have been considered 'cruel and unusual' in 1791. Only the severely or profoundly mentally retarded, commonly known as 'idiots,' enjoyed any special status under the law at that time." (Note: In that decision, "retard" and its variations were used without quotation marks. Times change.) Ten years ago, Scalia said that we should execute the same people that the founders would have executed.

Of course, Scalia would probably want them hanged on public gallows, old-school style, "retarded" or not. Hell, he'd probably pull the lever and then hump the corpse.