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Opinion of the Court
ment of the first state statute prohibiting such executions.9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a "sentence of death shall not be carried out upon a person who is mentally retarded." 10 In 1989, Maryland enacted a similar prohibition.11 It was in that year that we decided Penry, and concluded that those two state enactments, "even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus." 492 U. S., at 334.
Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue. In 1990, Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994.12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded.13 Nebraska followed suit in 1998.14 There appear
9 Ga. Code Ann. § 17-7-131(j) (Supp. 1988).
10 The Anti-Drug Abuse Act of 1988, Pub. L. 100-690, § 7001(l), 102 Stat. 4390, 21 U. S. C. § 848(l). Congress expanded the federal death penalty law in 1994. It again included a provision that prohibited any individual with mental retardation from being sentenced to death or executed. Federal Death Penalty Act of 1994, 18 U. S. C. § 3596(c).
11 Md. Ann. Code, Art. 27, § 412(f)(1) (1989).
12 Ky. Rev. Stat. Ann. §§ 532.130, 532.135, 532.140; Tenn. Code Ann. § 39- 13-203; N. M. Stat. Ann. § 31-20A-2.1; Ark. Code Ann. § 5-4-618; Colo. Rev. Stat. § 16-9-401; Wash. Rev. Code § 10.95.030; Ind. Code §§ 35-36-9-2 through 35-36-9-6; Kan. Stat. Ann. § 21-4623.
13 N. Y. Crim. Proc. Law § 400.27. However, New York law provides that a sentence of death "may not be set aside . . . upon the ground that the defendant is mentally retarded" if "the killing occurred while the defendant was confined or under custody in a state correctional facility or local correctional institution." N. Y. Crim. Proc. Law § 400.27.12(d) (McKinney 2001-2002 Interim Pocket Part).
14 Neb. Rev. Stat. § 28-105.01.
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