The court’s decision, though, will depend to a considerable extent on whether a majority finds that there exists a national consensus against the execution of retarded individuals. Justice Sandra Day O’Connor has said that whether such a consensus exists could be determined by counting how many states have passed legislation prohibiting it. In a similar case in 1989, the justices ruled that no such consensus existed and concluded that executing retarded persons did not constitute a violation of the Eighth Amendment. At the time, only Maryland and Georgia barred such executions.
Since then, however, a consensus has indeed been emerging. In 2001 alone, five states (Arizona, Connecticut, Florida, Missouri and North Carolina) enacted laws against executing the retarded. Currently 12 states have no death penalty at all. Of the 38 states with the death penalty, a total of 18 forbid its use in cases involving retarded men and women. One notable holdout is Texas. Last year, both houses of the Texas legislature passed a bill that would have barred the use of the death penalty against retarded persons. The senate sponsor, Rodney Ellis, claimed that six had been put to death since the state resumed executions in 1982. Nevertheless, Governor Rick Perry vetoed the bill in June, contending that no one with mental retardation had been executed, because the six who died knew the difference between right and wrong. Commentators, however, have pointed out that knowing the difference between right and wrong is primarily used as a test to determine criminal insanity, not retardation. People who are mentally retarded do generally know the difference between right and wrong.
A report released last spring by Human Rights Watch, entitled Beyond Reason: The Death Penalty and Offenders with Mental Retardation, concluded that since the Supreme Court reinstituted capital punishment in 1976, at least 35 people with mental retardation have been executed nationwide. The report observes that while “the exact number of mentally retarded people with mental disability...on death row awaiting execution is not known, experts believe there may be two or three hundred.” Mr. Atkins confessed to his crime, and so there is no question as to his guilt. But the issue of confessions by mentally retarded defendants itself raises further issues. As the report notes, persons with this disability “are susceptible to non-physical forms of coercive pressure and intimidation by the police that people with normal intelligence can more easily withstand.” It documents cases in which mentally retarded persons have confessed to crimes that subsequent investigation showed they had not committed. In a section of the report called “Mental Retardation and Criminal Culpability,” the report also observes that a retarded defendant may be unable to understand the seriousness of the situation—a circumstance that can make it difficult or impossible for the defendant to assist in his or her own defense.
Last year, the United States Conference of Catholic Bishops, together with a number of other religious and civil groups, filed an amicus curiae (“friend of the court”) brief with the Supreme Court. “We are convinced,” the brief stated, “that applying the death penalty...to persons with mental retardation...is the very embodiment of arbitrariness and disproportionality which this Court rejected in other cases...[and is] contrary to contemporary standards of decency.” A Supreme Court decision barring the use of the death penalty against retarded people will still leave the bulk of what the late Justice Harry Blackmun called “the machinery of death” in place. Nevertheless, it would represent a notable step toward ending the death penalty in the United States once and for all. There continue to be signs of hope in this direction. The Death Penalty Information Center in Washington, D.C., has noted that a May 2001 Gallup poll found that support for the death penalty had fallen to 65 percent—its lowest level in 23 years. Among other signs pointing to a growing public awareness of unfairness in the system, five more death-row inmates were exonerated and freed last year, bringing the present total to 100 since 1973.