Atkins v. Virginia, 536 U.S. 304, 12 (2002)

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Cite as: 536 U. S. 304 (2002)

Opinion of the Court

to have been no similar enactments during the next two years, but in 2000 and 2001 six more States—South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina—joined the procession.15 The Texas Legislature unanimously adopted a similar bill,16 and bills have passed at least one house in other States, including Virginia and Nevada.17

It is not so much the number of these States that is significant, but the consistency of the direction of change.18

Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the

15 S. D. Codified Laws 23A-27A-26.1; Ariz. Rev. Stat. Ann. 13-703.02; Conn. Gen. Stat. 53a-46a; Fla. Stat. 921.137; Mo. Rev. Stat. 565.030; 2001-346 N. C. Sess. Laws p. 45.

16 House Bill No. 236 passed the Texas House on April 24, 2001, and the Senate version, S. 686, passed the Texas Senate on May 16, 2001. Governor Perry vetoed the legislation on June 17, 2001. In his veto statement, the Texas Governor did not express dissatisfaction with the principle of categorically excluding the mentally retarded from the death penalty. In fact, he stated: "We do not execute mentally retarded murderers today." See Veto Proclamation for H. B. No. 236. Instead, his motivation to veto the bill was based upon what he perceived as a procedural flaw: "My opposition to this legislation focuses on a serious legal flaw in the bill. House Bill No. 236 would create a system whereby the jury and judge are asked to make the same determination based on two different sets of facts. . . . Also of grave concern is the fact that the provision that sets up this legally flawed process never received a public hearing during the legislative process." Ibid.

17 Virginia Senate Bill No. 497 (2002); House Bill No. 957 (2002); see also Nevada Assembly Bill 353 (2001). Furthermore, a commission on capital punishment in Illinois has recently recommended that Illinois adopt a statute prohibiting the execution of mentally retarded offenders. Report of the Governor's Commission on Capital Punishment 156 (Apr. 2002).

18 A comparison to Stanford v. Kentucky, 492 U. S. 361 (1989), in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty. Mont. Code Ann. 45-5-102 (1999); Ind. Code 35-50-2-3 (1998).

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