342
Scalia, J., dissenting
The Court pays lipservice to these precedents as it miraculously extracts a "national consensus" forbidding execution of the mentally retarded, ante, at 316, from the fact that 18 States—less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists)—have very recently enacted legislation barring execution of the mentally retarded. Even that 47% figure is a distorted one. If one is to say, as the Court does today, that all executions of the mentally retarded are so morally repugnant as to violate our national "standards of decency," surely the "consensus" it points to must be one that has set its righteous face against all such executions. Not 18 States, but only 7—18% of death penalty jurisdictions—have legislation of that scope. Eleven of those that the Court counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date of the legislation;1 those already on death row, or consigned there before the statute's effective date, or even (in those States using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches. Two of these States permit execution of the mentally retarded in other situations as well: Kansas apparently permits execution of all
1 See Ariz. Rev. Stat. Ann. § 13-703.02(I) (Supp. 2001); Ark. Code Ann. § 5-4-618(d)(1) (1997); Reams v. State, 322 Ark. 336, 340, 909 S. W. 2d 324, 326-327 (1995); Fla. Stat. § 921.137(8) (Supp. 2002); Ga. Code Ann. § 17-7-131(j) (1997); Ind. Code § 35-36-9-6 (1998); Rondon v. State, 711 N. E. 2d 506, 512 (Ind. 1999); Kan. Stat. Ann. §§ 21-4623(d), 21-4631(c) (1995); Ky. Rev. Stat. Ann. § 532.140(3) (1999); Md. Ann. Code, Art. 27, § 412(g) (1996); Booth v. State, 327 Md. 142, 166-167, 608 A. 2d 162, 174 (1992); Mo. Rev. Stat. § 565.030(7) (Supp. 2001); N. Y. Crim. Proc. Law § 400.27.12(c) (McKinney Supp. 2002); 1995 N. Y. Laws, ch. 1, § 38; Tenn. Code Ann. § 39-13-203(b) (1997); Van Tran v. State, 66 S. W. 3d 790, 798- 799 (Tenn. 2001).
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