Cite as: 536 U. S. 304 (2002)
Scalia, J., dissenting
June 12, 2002) (showing that 12 States executed 35 allegedly mentally retarded offenders during the period 1984-2000)). See also Bonner & Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1 (reporting that 10% of death row inmates are retarded). If, however, execution of the mentally retarded is "uncommon"; and if it is not a sufficient explanation of this that the retarded constitute a tiny fraction of society (1% to 3%), Brief for American Psychological Association et al. as Amici Curiae 7; then surely the explanation is that mental retardation is a constitutionally mandated mitigating factor at sentencing, Penry, 492 U. S., at 328. For that reason, even if there were uniform national sentiment in favor of executing the retarded in appropriate cases, one would still expect execution of the mentally retarded to be "uncommon." To adapt to the present case what the Court itself said in Stanford, 492 U. S., at 374: "[I]t is not only possible, but overwhelmingly probable, that the very considerations which induce [today's majority] to believe that death should never be imposed on [mentally retarded] offenders . . . cause prosecutors and juries to believe that it should rarely be imposed."
But the Prize for the Court's Most Feeble Effort to fabricate "national consensus" must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called "world community," and respondents to opinion polls. Ante, at 316-317, n. 21. I agree with The Chief Justice, ante, at 325-328 (dissenting opinion), that the views of professional and religious organizations and the results of opinion polls are irrelevant.6 Equally irrelevant are the practices of the
6 And in some cases positively counterindicative. The Court cites, for example, the views of the United States Catholic Conference, whose members are the active Catholic Bishops of the United States. See ante, at 316, n. 21 (citing Brief for United States Catholic Conference et al. as Amici Curiae 2). The attitudes of that body regarding crime and punish-
347
Page: Index Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 NextLast modified: October 4, 2007