[Congressional Record Volume 148, Number 86 (Tuesday, June 25, 2002)]
[Senate]
[Pages S6008-S6009]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              SUPREME COURT DECISION IN ATKINS V. VIRGINIA

  Mr. BIDEN. Madam President, last week the Supreme Court ruled, in a 
case called Atkins v. Virginia, that the execution of mentally retarded 
persons violates the eighth amendment's prohibition of cruel and 
unusual punishment. The Court thereby reversed its 1989 holding in 
Penry v. Lynaugh, which it decided at a time when only two States with 
death penalty laws forbade the execution of the mentally retarded. In 
Atkins, the Court noted that in the 13 years following Penry, 16 
additional States have enacted laws banning such executions. In 
addition, 12 States do not have the death penalty at all, meaning that 
a total of 30 States do not permit the execution of the mentally 
retarded. Therefore, the Court concluded that a ``national consensus'' 
has emerged against the execution of the mentally retarded. Because the 
Court interprets the eighth amendment in accordance with ``evolving 
standards of decency that mark the progress of a maturing society,'' 
the Court concluded that the emergence of this national consensus 
rendered such executions unconstitutional.
  I applaud the Supreme Court's decision. And I do so not from the 
perspective of one who opposes the death penalty in all its 
applications. Rather, I am a supporter of the death penalty. I believe 
that, when used appropriately, it is an effective crime-fighting tool 
and a deterrent. Indeed, I am the author of two major Federal crime 
laws that extended the availability of the death penalty. I authored 
the Anti-Drug Abuse Act of 1988, which extended the death penalty to 
drug kingpins. And I authored the Violent Crime Control and Law 
Enforcement Act of 1994, which extended the death penalty to roughly 60 
crimes, including--just to name a few--terrorist homicides, murder of 
Federal law enforcement officers, large-scale drug trafficking, and 
sexual abuse resulting in death.
  But I believe that when we apply this ultimate sanction--which is, of 
course, irrevocable--we must do so consistent with the values that we 
stand for as a nation and as a civilized people. We must be as 
reasonable, as fair, and as judicious as we possibly can be. And we 
must ensure that we reserve the death penalty only for monstrous people 
who have committed monstrous acts. In short, we must apply the death 
penalty in a way that is worthy of us as Americans.
  That is why I have led the fight to make sure that the Federal death 
penalty--which I strongly support--does not apply to the mentally 
retarded. Just as we would not execute a 12-year-old who commits a 
crime, even though that 12-year-old knows the difference between right 
and wrong, so we should not execute a mentally retarded person. To be 
mentally retarded is to be deprived of the ability to comport oneself 
in a normal way, not because of anything that one did, but because of 
an accident of birth. We all know families into which children are born 
who do not have a high enough intelligence quotient to justly and 
fairly measure their actions against every other person in society. I 
cannot imagine strapping in a chair someone with an I.Q. of less than 
70, with the mental capacity of a 12-year-old--at most--and telling him 
that he must die for his crimes.
  Let me be clear: I do not believe that a mentally retarded criminal 
is blameless. Far from it. A mentally retarded person, like a child, 
may well know the difference between right and wrong, and may be able 
to control his actions. Therefore, I must be clear about one further 
point. This is not about choosing between executing mentally retarded 
criminals or letting them roam the streets. That is a false choice. 
Under the Federal laws that I have authored, as well as under State 
statutes, we provide for every possible penalty short of death for the 
mentally retarded, including life imprisonment without possibility of 
parole.
  That was true last week, and it remains true today. The Supreme Court 
decision does not alter that fact one bit. It remains within our 
ability--and it remains our duty--to ensure that dangerous mentally 
retarded criminals are kept far away from law-abiding citizens. We have 
a host of penalties available to us to ensure that we are able to do 
so. And we have been doing so effectively. Since the 1989 Penry 
decision, only five States have resorted to executing mentally retarded 
persons. The remaining States, as well as the Federal Government, have 
effectively confined and deterred mentally retarded criminals by means 
of incarceration.
  Some people have argued that we must allow executions of the mentally 
retarded because it is often extremely difficult to define and 
determine mental retardation. I disagree. That has not been the 
experience of the States in recent years. More importantly, whether 
something is difficult to do has no bearing on whether it is the right 
thing to do. Sparing the lives of mentally retarded criminals is 
manifestly the right thing to do, regardless of whether it is difficult 
on the margins. We ask judges and juries to make

[[Page S6009]]

difficult decisions every day of the year, because a system of justice 
based upon avoiding difficult decisions would provide no justice at 
all.
  In 1990, I led the fight against an amendment that would have changed 
the Federal death penalty statute to permit the execution of the 
mentally retarded. During the floor debate, I implored my colleagues, 
``Let us show that our support for the death penalty is bonded by 
humanity.'' I asked my colleagues to remember that to be mentally 
retarded is to be denied the ability to develop the full human 
faculties that the rest of us take for granted. ``We do not execute 
children,'' I noted. ``Let us not execute people who never get beyond 
that stage in their life through absolutely no fault of their own.''
  I am proud that a majority of this body agreed with me and rejected 
the amendment. And I am proud that by our action, we, in our own small 
way, helped galvanize our brothers and sisters in State legislatures to 
such an extent that, 12 years later, the Supreme Court can state that a 
national consensus has emerged against executing the mentally retarded. 
As a supporter of the death penalty, I know that this ultimate sanction 
is justifiable only if it is administered in a way that comports with 
American values. Last week, the Supreme Court agreed, and we are a 
stronger nation for it.

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