Senate Floor: SUPREME COURT DECISION IN ATKINS V. VIRGINIA

Madam President, last week the Supreme Court ruled, in a case called Atkins v. Virginia, that the execution of mentally retarded persons violates the eighth amendment's prohibition of cruel and unusual punishment. The Court thereby reversed its 1989 holding in Penry v. Lynaugh, which it decided at a time when only two States with death penalty laws forbade the execution of the mentally retarded. In Atkins, the Court noted that in the 13 years following Penry, 16 additional States have enacted laws banning such executions. In addition, 12 States do not have the death penalty at all, meaning that a total of 30 States do not permit the execution of the mentally retarded. Therefore, the Court concluded that a "national consensus" has emerged against the execution of the mentally retarded. Because the Court interprets the eighth amendment in accordance with "evolving standards of decency that mark the progress of a maturing society," the Court concluded that the emergence of this national consensus rendered such executions unconstitutional.

I applaud the Supreme Court's decision. And I do so not from the perspective of one who opposes the death penalty in all its applications. Rather, I am a supporter of the death penalty. I believe that, when used appropriately, it is an effective crime-fighting tool and a deterrent. Indeed, I am the author of two major Federal crime laws that extended the availability of the death penalty. I authored the Anti-Drug Abuse Act of 1988, which extended the death penalty to drug kingpins. And I authored the Violent Crime Control and Law Enforcement Act of 1994, which extended the death penalty to roughly 60 crimes, including -- just to name a few -- terrorist homicides, murder of Federal law enforcement officers, large-scale drug trafficking, and sexual abuse resulting in death.

But I believe that when we apply this ultimate sanction -- which is, of course, irrevocable -- we must do so consistent with the values that we stand for as a nation and as a civilized people. We must be as reasonable, as fair, and as judicious as we possibly can be. And we must ensure that we reserve the death penalty only for monstrous people who have committed monstrous acts. In short, we must apply the death penalty in a way that is worthy of us as Americans.

That is why I have led the fight to make sure that the Federal death penalty -- which I strongly support -- does not apply to the mentally retarded. Just as we would not execute a 12-year-old who commits a crime, even though that 12-year-old knows the difference between right and wrong, so we should not execute a mentally retarded person. To be mentally retarded is to be deprived of the ability to comport oneself in a normal way, not because of anything that one did, but because of an accident of birth. We all know families into which children are born who do not have a high enough intelligence quotient to justly and fairly measure their actions against every other person in society. I cannot imagine strapping in a chair someone with an I.Q. of less than 70, with the mental capacity of a 12-year-old -- at most -- and telling him that he must die for his crimes.

Let me be clear: I do not believe that a mentally retarded criminal is blameless. Far from it. A mentally retarded person, like a child, may well know the difference between right and wrong, and may be able to control his actions. Therefore, I must be clear about one further point. This is not about choosing between executing mentally retarded criminals or letting them roam the streets. That is a false choice. Under the Federal laws that I have authored, as well as under State statutes, we provide for every possible penalty short of death for the mentally retarded, including life imprisonment without possibility of parole.

That was true last week, and it remains true today. The Supreme Court decision does not alter that fact one bit. It remains within our ability -- and it remains our duty -- to ensure that dangerous mentally retarded criminals are kept far away from law-abiding citizens. We have a host of penalties available to us to ensure that we are able to do so. And we have been doing so effectively. Since the 1989 Penry decision, only five States have resorted to executing mentally retarded persons. The remaining States, as well as the Federal Government, have effectively confined and deterred mentally retarded criminals by means of incarceration.

Some people have argued that we must allow executions of the mentally retarded because it is often extremely difficult to define and determine mental retardation. I disagree. That has not been the experience of the States in recent years. More importantly, whether something is difficult to do has no bearing on whether it is the right thing to do. Sparing the lives of mentally retarded criminals is manifestly the right thing to do, regardless of whether it is difficult on the margins. We ask judges and juries to make difficult decisions every day of the year, because a system of justice based upon avoiding difficult decisions would provide no justice at all.

In 1990, I led the fight against an amendment that would have changed the Federal death penalty statute to permit the execution of the mentally retarded. During the floor debate, I implored my colleagues, "Let us show that our support for the death penalty is bonded by humanity." I asked my colleagues to remember that to be mentally retarded is to be denied the ability to develop the full human faculties that the rest of us take for granted. "We do not execute children," I noted. "Let us not execute people who never get beyond that stage in their life through absolutely no fault of their own." I am proud that a majority of this body agreed with me and rejected the amendment. And I am proud that by our action, we, in our own small way, helped galvanize our brothers and sisters in State legislatures to such an extent that, 12 years later, the Supreme Court can state that a national consensus has emerged against executing the mentally retarded. As a supporter of the death penalty, I know that this ultimate sanction is justifiable only if it is administered in a way that comports with American values. Last week, the Supreme Court agreed, and we are a stronger nation for it.