On June 15, a group of activists led by a Catholic bishop staged a news conference in Austin, Texas, to promote legislation outlawing a procedure they described as the indiscriminate taking of human life. The bishop, joined by a state senator, argued that the victims of this procedure were morally equivalent to children. Vetoing the legislation two days later, the governor disagreed. "This legislation is not about whether" to end human life, he explained. "It's about who makes the determination."
Another abortion fight? Nope. This time the issue was the death penalty, and the question at hand was whether to ban the execution of retarded killers. Like the abortion debate, the death penalty debate has a pro-life side and a pro-choice side. The positions, however, are reversed. Cynics have often observed that people who want to ban the destruction of unborn life tolerate the executions of convicted murderers, while people who want to ban executions tolerate the destruction of unborn life. But increasingly, the irony extends to the concept of choice. Politicians who reject the right to choose abortion—including the governor of Texas and the president of the United States—now sidestep the unpleasant facts and dubious ethics of the most difficult death penalty cases by arguing that judges and politicians should leave decisions about capital punishment in the hands of individual jurors. The death penalty debate has become the abortion debate upside-down.
Abortion and execution differ in obvious ways. Fetuses lack the mental development and physical independence of born humans; convicted murderers lack the innocence of fetuses. An abortion ban would override the decision of the woman in whose body the life at stake resides; an execution ban would override the decision of a juror whose connection to the life at stake is, by virtue of distance, less proprietary and less self-interested. Politically, however, the dynamics of the two issues have become almost identical. Activists who want to outlaw all abortions or all executions know, from polls and legislative defeats, that most people don't share that objective. At the same time, they know that they can get majority support for outlawing some abortions or some executions. The trick is to focus the debate on the most troubling subset of cases. In the abortion debate, the subset is late-term fetuses. In the death penalty debate, the subset is mentally retarded convicts.
Like the campaign against "partial-birth" abortions, the campaign against executing retarded murderers draws its logic from polls. Death penalty opponents routinely point out that although surveys show overwhelming support for the death penalty in general, the same surveys show overwhelming opposition to executing convicts who are retarded. The implication, often spelled out, is that legislators and governors should heed these numbers. So far, the strategy is paying off. Of the 38 states that permit capital punishment, 15 have banned its application to retarded killers.
Most experts equate retardation with an IQ of 70 or below. Others dispute that number, and some prefer subtler measures of a person's ability to adapt and function in society. Scientifically, it's hard to define. But politically, that's the point. Pro-lifers on execution, like pro-lifers on abortion, have no intention of settling for such a small part of their agenda. They just want to make the first step look easy. Once you've agreed that it's wrong to kill an inmate with an IQ of 70, they'll ask why it's OK to kill an inmate with an IQ of 71. Or how about the Texas inmate—subsequently executed—who scored 64 on one IQ test and 76 on another? Two years ago, Texas state Sen. Rodney Ellis proposed a bill to outlaw the execution of anyone with an IQ of 65 or lower. Ellis claimed to support capital punishment and assured everyone that he was drawing a bright line. "If you score above 65 and you're on death row, be prepared to meet your maker," he vowed. But this year, Ellis campaigned for a bill that would have removed that threshold, allowing the magic number to rise by default to 70.
Once the standard of retardation has been stretched to encompass as many inmates as possible, the next step is to broaden the rationale for this exemption so that it applies to murderers who aren't retarded. Initially, killing retarded prisoners was said to be wrong because they couldn't understand what was being done to them and why. Then it was said to be wrong because these prisoners resembled children and shared their innocence. Now it's wrong, according to the Chicago Tribune, because retarded people are "more willing to confess to crimes they did not commit," "may not fully understand their Miranda rights," and "are less capable of participating effectively in their own defense." More broadly, according to Ellis, killing people who are afflicted with retardation isn't "compassionate." These concerns may be valid, but the point is that they aren't confined to retarded people. Once you accept them as reasons to forgo the death penalty, you're left wondering why it's OK to execute anyone who is stupid, naive, or unfortunate.
Confronted with this slippery slope, the opposition's natural impulse is to concede whatever territory can't be defended, draw a line, and dig in. For abortion rights advocates, the conceded territory is "partial births," and the line is fetal viability. For death penalty supporters, the conceded territory is retardation, and the line is comprehension of right and wrong. But politically, this strategy never works. Parsing the relative awfulness of various abortions or executions just makes the public queasy about the whole business, which is exactly what abolitionists want. Moreover, the logic of the concession always overwhelms the line of defense. Last week, President Bush and his successor in Texas, Republican Gov. Rick Perry, conceded that "we should never execute someone who is retarded." At the same time, Bush and Perry refused to extend that exemption to killers who "understand right from wrong" and "understand the nature of the crime they committed." In response, the press corps, which reviles the death penalty, pointed out that many retarded criminals possess such understanding. The White House's subsequent arguments about the true meaning of "retarded" were no more politically helpful than the Reagan White House's arguments about the true meaning of "needy."
The better strategy—the one that has stymied pro-lifers in the abortion fight—is to refuse to debate the morality of specific categories and cases. Instead, the trick is to change the question from substance to process, from ethics to jurisdiction, from what's decided to "who decides." That's the message the National Abortion and Reproductive Rights Action League has used against Bush, Perry, and other anti-abortion candidates: They want to take away your right to choose and give it to politicians and judges. They don't trust you.
And that's precisely the argument Bush and Perry are now deploying against opponents of the death penalty. Two years ago, when the Texas Legislature debated whether to ban the execution of retarded killers, then-Gov. Bush opposed the bill. "That's up to the juries to make those decisions," he reasoned. Last week, Perry announced that he was vetoing a similar bill because it gave "judges the power to overturn a jury's determination of whether a murderer is mentally retarded." Noting that Texas law already authorized jurors to consider mental incapacity as a mitigating factor, Perry insisted that "a jury is the proper and final decision-maker about the facts." The bill "basically tells the citizens of this state, 'We don't trust you to get it right,' " he charged. "This legislation is not about whether to execute mentally retarded murderers. … It is about who determines whether a defendant is mentally retarded."
Once the debate rotates from the "what" dimension to the "who" dimension, the burden of explanation shifts to pro-lifers. Why don't they trust you to make these decisions? What makes them think they know better than you do? The moral difficulty of sorting out each case—Is it OK to execute a child-killer with an IQ of 55? A killer with an IQ of 75 who was brutally beaten by his father?—becomes a rationale for jury discretion rather than for ever-broader restrictions on capital punishment. Pro-lifers have to explain not why it's tragic to kill retarded people, but why that tragedy should categorically override the other facts of each case. "Mental retardation should not be a mitigating factor, it should be the defining issue," Ellis argued in reply to Perry's veto message. "We don't want the jury or the judge to have the option to execute the mentally retarded."
Maybe Ellis can win that argument. But it's going to be a lot harder than winning an argument about the moral discomfort of killing retarded people.