Our Sense of Decency Has Evolved How Far?

The Supreme Court rejected the appeal of Elkie Lee Taylor today. He was a sixth grade dropout who tested 63 on an IQ test that generally considers under 70 as retarded. Unless the manner of execution by lethal injection is thrown out, Mr. Taylor will probably be executed.

In 2002 the Supremes decided Atkins v. Virginia and banned execution of the mentally retarded. Then, they left the decision up to the states on how to determine who is mentally retarded.

Since Texas has only killed 402 since 1982, and 403 seems like a much better number, Mr. Taylor is back on the list.

Texas has an odd way of determining mental retardation if you accept the present position of the Texas Court of Criminal Appeals. We don't need to find out ahead of time if the guy is retarded. Just try him and if he gets convicted then the jury can decide if he is retarded when they are considering sentencing.

The problem with determining mental retardation at sentencing is that the jurors’ values may not comport with a constitutional requirement to spare the mentally retarded. It may be our (America's) sense of decency has evolved far enough not to execute the retarded, but if we get some of those unevolved jurors, they may not be willing to find mental retardation to spare a killer, even if it is so.

What about a dangerous, mentally retarded man who will most likely kill again. The Constitution may now say, "No execution," but the jurors (who have already been qualified in their ability to consider the death penalty) say, "Well, especially if he is retarded, on top of being a dangerous killer, should we execute him."

Justice Brennan discussed this problem in an earlier decision:

“It appears to us that there is all the more reason to execute a killer if he is also . . . retarded. Killers often kill again; [a] retarded killer is more to be feared than a . . . normal killer. There is also far less possibility of his ever becoming a useful citizen.”

In arguing against assessing mental retardation during sentencing, Justice Brennan states, “Lack of culpability as a result of mental retardation is simply not isolated at the sentencing stage as a factor that determinatively bars a death sentence; for individualized consideration at sentencing is not designed to ensure that mentally retarded offenders are not sentenced to death if they are not culpable to the degree necessary to render execution a proportionate response to their crimes.”

So this is still the problem if the death penalty comes from Texas. Just because the shrinks may say the guy tests retarded, the jury may not want to, especially since they will know that it means letting a killer live, retarded or not.

The Supremes did not decide Mr. Taylor should die, they just refused to hear the case. Mr. Taylor may not be too excited about the distinction since he still may end up six feet under. Besides, he has an IQ of 63.

One of the mentally retarded executed before our sense of decency evolved in Atkins is said to have been given the last supper of his choice. He did not eat the dessert. When asked, "why not," he said he was saving it for later.

Life in the Fast Lane

Touring Downtown

Thanks H-E-B

HEB carts are an important means of transportation in our neighborhood. Kathy and I will sit on our balcony and watch the carts go by filled with kids or lawn care tools or personal effects--and sometimes even groceries.

There are other forms of transportation as well: a lot of walking, biking and motorized wheelchair driving from the high rise nursing home down the street. There are also cars, monster HEB grocery trucks that set off the neighbor's burglar alarms and skateboards. But the signature vehicle of the neighborhood has to be the HEB shopping cart.

I am not sure how you get one, but it is clear, when you are through with it you can leave it on the side of the street. Every day a guy with a pickup truck drives around and loads HEB carts into the truck which he apparently takes back to the store on Elizabeth Street.

At first there was no reason everyone could not leave the store with a cart, but now metal pilings have been driven in the ground to create a gate around the carts at the store. Someone told me (a clerk?, a customer?, a panhandler?) that I would have to pay a $5 deposit if I wanted one.

HEB appears to be out of character in its generosity in allowing the use of the carts. Maybe this is not true and there is cottage industry of threats and bullying surrounding the carts and who gets to use them and who brings them back. I have not tried, since both of our cars usually run and when mine doesn't, Kathy will sometimes let me borrow hers.

When I say the generosity would be out of character for HEB, I am aware that HEB advertises they give away turkeys and other food at Thanksgiving and Christmas and send food to Mexican orphanages. Good for them. But my impression of the company stems more from years of reports of mistreatment of employees and having customers arrested for shoplifting and fighting customers or employees who had the temerity to slip and fall on the premises. From nightmare experiences, HEB could strike fear in the hearts of some people just like other initials like CIA, KGB and IRS.

Charles Butt waged a political campaign to make sure no one could sue them. And pity the poor Lopez supermarket when an HEB came to the neighborhood.

I still shop there, of course. No principle of corporate bad citizenship is likely to overcome my desire for convenience and cheap groceries. Back in the day when I was trying to observe a boycott, I would sometimes eat grapes and lettuce and I readily hop on a Boeing manufactured jet and use DuPont and AT&T products although I rank those corporations with those that sold opium in China and colonized India. Anyway, I don't claim to be part of the solution as a consumer.

Grocery stores are notoriously difficult to unionize and as food delivery becomes more complex, food coops seem like romantic dreams. And every attempt I have made at a victory garden has failed, although I did enjoy the worms I got at the composting class. Alas, readers true, any thoughts about improving the way we get food?