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The American people first became aware of the issue of mental retardation and the death penalty around the time of this Court’s decision in Penry. In the intervening years, all available forms of evidence demonstrate an unmistakable national consensus that people with mental retardation should not be executed. Petitioner, as well as other supporting amici, will present this Court with the compelling clinical, moral, and constitutional reasons why such executions violate the Eighth Amendment. Amici American Association on Mental Retardation (AAMR) et al. offer a somewhat different perspective. Since the Court’s evaluation of whether a national consensus exists is essentially an evidentiary question, this brief will provide detailed information concerning the emergence of that consensus over the last decade and a half. The evidence is clear. It shows virtually no support for executing people with mental retardation among legislators, either State or Federal. It shows almost no prosecutors or judges willing to state that they believe individuals with mental retardation should receive the death penalty. It shows governors exercising their clemency powers to prevent execution when they come to understand that a defendant has mental retardation. And in an extraordinary array of public opinion surveys, spread across the country, taken by different organizations over a substantial span of time, it shows overwhelming opposition among the American people to the execution of any person who has mental retardation. A clear majority of those Americans who support the death penalty oppose its use for defendants who have mental retardation. The principal reason for this remarkable level of agreement is our shared moral judgment as a Nation that individuals with mental retardation do not have the requisite level of culpability to warrant execution. This moral sentiment has been expressed by legislators and others in various ways, but the clarity of the message is unmistakable. Opposition to the execution of people with mental retardation has been reinforced by awareness of the fact that a defendant’s disability increases the likelihood that a factually innocent defendant may be executed. The specter of such an intolerable injustice has strengthened the resolve of a Nation that already opposed capital punishment for these defendants on moral grounds. This Court has applied the Punishments Clause of the Eighth Amendment sparingly. Where, as here, there is no identifiable support for a punishment in the country, but the system proves itself incapable of reflecting the national consensus, the Court should prohibit the practice as the cruel and unusual punishment that it is.


No. 00-8727

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Ernest Paul McCarver (Petitioner) v. State of North Carolina; On Writ of Certiorari to the Supreme Court of North Carolina

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