Hamm v. Smith · ¶111

The only possible historical analogue to Atkins's doctrine was a common-law protection that cannot justify it. At common law, the severely mentally retarded—whom the common law called “idiots”—could not be punished. 4 Blackstone 24–25. The common law protected such people from punishment because their disability is so severe that they lack “knowledge to distinguish between good and evil”—“[t]hey are forgiven for they know not what they do!” A. High- more, Law of Idiocy and Lunacy 195 (1807) (Highmore). Idiots, said Hale, have “no possibility to understand, what is forbidden by law to be done, or under what penalties.” 1 M. Hale, Pleas of the Crown 34 (1736) (Hale).

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