[Congressional Record (Bound Edition), Volume 148 (2002), Part 8]
[Senate]
[Page 10950]
[From the U.S. Government Publishing Office, www.gpo.gov]




      SUPREME COURT RULING THE EXECUTION OF THE MENTALLY RETARDED 
                            UNCONSTITUTIONAL

  Mr. FEINGOLD. Mr. President, earlier today, the United States Supreme 
Court issued one of the most significant decisions curtailing the death 
penalty since the Court first found capital punishment unconstitutional 
in 1972, and then reinstated it four years later. In a six to three 
decision in Atkins v. Virginia, the Court ruled that the execution of 
the mentally retarded is unconstitutional. The Court concluded that 
such executions are cruel and unusual punishment in violation of the 
Eighth Amendment.
  This decision is a notable turning point for our Nation.
  Indeed, a national consensus opposing such executions has been 
growing for some time. In 1989, when the Supreme Court upheld the 
execution of mentally retarded persons, only two of the 38 States that 
authorize the use of the death penalty had banned executions of the 
mentally retarded. Since then, 16 more States have enacted laws 
prohibiting the practice. Now, 18 of the 38 States that use the death 
penalty have banned the practice. And of the 20 States in the country 
that continue the practice, nearly half have pending legislation to 
halt executions of the mentally retarded. In addition, the Federal 
Government, which re-enacted the death penalty in 1988, has banned 
executions of the mentally retarded.
  A recent poll by the National Journal found that only 13 percent of 
Americans favor the death penalty for the mentally retarded. As this 
poll indicates, Americans recognize that it is cruel and unusual to 
apply the death penalty to adults who have the minds of children. In 
many cases, mentally retarded adults accused of crimes cannot fully 
understand what they have been accused of, and often do not comprehend 
the severity of the punishment that awaits them. Accused adults with 
low mental capacity are often characteristically eager-to-please, and 
more likely to falsely confess to a crime.
  Indeed, as Justice Stevens, writing for the majority, stated, 
concerning mentally retarded defendants, ``Their deficiencies do not 
warrant an exemption from criminal sanctions, but they do diminish 
their personal culpability.'' He wrote: ``Mentally retarded defendants 
may be less able to give meaningful assistance to their counsel and are 
typically poor witnesses, and their demeanor may create an unwarranted 
impression of lack of remorse for their crimes.'' Justice Stevens 
continued: ``Mentally retarded defendants in the aggregate face a 
special risk of wrongful execution.''
  The Court also reasoned that the usual justifications for capital 
punishment, retribution and deterrence, do not apply to mentally 
retarded defendants. With respect to retribution, Justice Stevens wrote 
that ``the severity of the appropriate punishment necessarily depends 
on the culpability of the offender.'' But ``[i]f the culpability of the 
average murderer is insufficient to justify the most extreme sanction 
available to the State, the lesser culpability of the mentally retarded 
offender surely does not merit that form of retribution,'' Justice 
Stevens wrote. He concluded: ``Thus, pursuant to our narrowing 
jurisprudence, which seeks to ensure that only the most deserving of 
execution are put to death, an exclusion for the mentally retarded is 
appropriate.''
  With respect to the other justification for capital punishment, 
deterrence, Justice Stevens wrote that ``executing the mentally 
retarded will not measurably further the goal of deterrence.'' The 
Court reasoned:

       The theory of deterrence in capital sentencing is 
     predicated upon the notion that the increased severity of the 
     punishment will inhibit criminal actors from carrying out 
     murderous conduct. Yet it is the same cognitive and 
     behavioral impairments that make these defendants less 
     morally culpable . . . that also make it less likely that 
     they can process the information of the possibility of 
     execution as a penalty and, as a result, control their 
     conduct based on that information.

  Today the Supreme Court reflected the sentiments of our nation on 
this important issue. As the majority stated: ``The practice [of 
executing the mentally retarded] . . . has become unusual, and it is 
fair to say that a national consensus has developed against it.'' The 
majority concluded: ``Construing and applying the Eighth Amendment in 
the light of our `evolving standards of decency,' we therefore conclude 
that such punishment is excessive and that the Constitution `places a 
substantive restriction on the State's power to take the life' of a 
mentally retarded offender.'''
  The Court's decision confirms that our Nation's standards of decency 
concerning the ultimate punishment are indeed evolving and maturing. 
Even before today's decision, we have known that the current death 
penalty system is broken and plagued by errors, including the risk of 
executing the innocent and racial and geographic disparities.
  As evidence mounts that the administration of capital punishment is 
plagued by inexcusable flaws, the American people are taking notice, 
and taking action. Illinois Governor George Ryan took the courageous 
and extraordinary step of placing a moratorium on executions two years 
ago. He also created an independent, blue ribbon commission to review 
the Illinois death penalty system. The commission released its report 
earlier this year and made 85 recommendations for improving the 
administration of the death penalty.
  More and more Americans are realizing that they can no longer simply 
look the other way when confronted with glaring injustices. And today, 
a majority of the justices on our nation's highest court have joined 
this growing chorus of Americans.
  I am proud of our Court today. I am proud of a justice system that 
recognizes that the execution of the mentally retarded is 
unconstitutional, inhumane, and simply wrong. Today we can declare an 
important and historic victory for justice.
  But, while the Supreme Court must continue to scrutinize the capital 
cases before it, Congress and the American people also have a 
responsibility to act. Today's ruling presents us with further evidence 
of the urgent need for a moratorium on executions and a full and 
thorough nationwide review of the administration of the death penalty. 
It is time for Congress to support passage of my bill, the National 
Death Penalty Moratorium Act. We simply cannot continue to look the 
other way.

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