344
Scalia, J., dissenting
to establish consensus in earlier cases. Tison v. Arizona, 481 U. S. 137, 154, 158 (1987), upheld a state law authorizing capital punishment for major participation in a felony with reckless indifference to life where only 11 of the 37 death penalty States (30%) prohibited such punishment. Stanford, 492 U. S., at 372, upheld a state law permitting execution of defendants who committed a capital crime at age 16 where only 15 of the 36 death penalty States (42%) prohibited death for such offenders.
Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 States it relies on is still in its infancy. The oldest of the statutes is only 14 years old; 3 five were enacted last year; 4 over half were enacted within the past eight years.5 Few, if any, of the States have had sufficient experience with these laws to know whether they are sensible in the long term. It is "myopic to base sweeping constitutional principles upon the narrow experience of [a few] years." Coker, 433 U. S., at 614 (Burger, C. J., dissenting); see also Thompson, 487 U. S., at 854-855 (O'Connor, J., concurring in judgment).
The Court attempts to bolster its embarrassingly feeble evidence of "consensus" with the following: "It is not so much the number of these States that is significant, but the consistency of the direction of change." Ante, at 315 (emphasis added). But in what other direction could we possibly see change? Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound
3 Ga. Code Ann. § 17-7-131(j).
4 Ariz. Rev. Stat. Ann. § 13-703.02; Conn. Gen. Stat. § 53a-46a(h); Fla. Stat. § 921.137; Mo. Rev. Stat. §§ 565.030(4)-(7); N. C. Gen. Stat. § 15A-2005.
5 In addition to the statutes cited n. 4, supra, see S. D. Codified Laws § 23A-27A-26.1 (enacted 2000); Neb. Rev. Stat. §§ 28-105.01(2)-(5) (1998); N. Y. Crim. Proc. Law § 400.27(12) (1995); Ind. Code § 35-36-9-6 (1994); Kan. Stat. Ann. § 21-4623 (1994).
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