348
Souter, J., dissenting
be mentally ill, it would not explain why the former should be subject to a second prosecutor when the latter are not.
The same may be said about the Court's second suggested justification, that the mentally ill may have a need for privacy not shown by the retarded. Even assuming the ill need some additional privacy, and that participation of others in the commitment proceeding should therefore be limited "to the smallest group compatible with due process," ante, at 329, why should the retarded be subject to a second prosecutor? The Court provides no answer.9
Without plausible justification, Kentucky is being allowed to draw a distinction that is difficult to see as resting on anything other than the stereotypical assumption that the retarded are "perpetual children," an assumption that has historically been taken to justify the disrespect and "grotesque mistreatment" to which the retarded have been subjected. See Cleburne, 473 U. S., at 454 (Stevens, J., concurring) (internal quotation marks and citation omitted). As we said in Cleburne, the mentally retarded are not "all cut from the same pattern: . . . they range from those whose disability is not immediately evident to those who must be constantly cared for." Id., at 442. In recent times, at least when imposing the responsibilities of citizenship, our jurisprudence has seemed to reject the analogy between mentally retarded adults and nondisabled children. See, e. g., Penry v. Lynaugh, 492 U. S. 302, 338 (1989) (controlling opinion of O'Connor, J.) (not "all mentally retarded people . . .— by virtue of their mental retardation alone, and apart from any individualized consideration of their personal responsibility—inevitably lack the cognitive, volitional, and moral capacity to act with the degree of culpability associated with the death penalty"); see also id., at 340 ("reliance on mental
9 I also note that the Court provides no support for its speculation that an adult who develops mental illness will have a greater need or desire for privacy in an involuntary commitment proceeding than an adult who is mentally retarded.
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