This Article will demonstrate that in order to stop the practice of executing the retarded, state legislatures, and not the courts, must be the focus of advocates’ efforts. The lower courts have been no refuge for the men-tally retarded, and the Supreme Court is unlikely to overrule Penry. List-ing mental retardation as a mitigating factor in capital sentencing has failed to prevent the execution of those of greatly below-average intelligence.Although there is little culpability or deterrent effect to justify execution of the mentally retarded, this practice will continue until a large number of state legislatures specifically ban it.

In the first part of this Article, I will discuss the current and past definitions of mental retardation. Mental retardation is a confusing and often intangible affliction that many do not fully understand. In order to decide if the criminal justice system should allow this group to be executed, we must know the parameters of mental retardation. I will discuss the recent change in the definition of mental retardation that was made in part to provide a more workable definition for those outside the mental health professions.

Next, I shall offer arguments against executing the mentally retarded. I will discuss the common rationales used by supporters of the death penalty – deterrence and retribution – and I will demonstrate that neither theory justifies the execution of the mentally retarded. I will also discuss the various procedural problems that mentally retarded defendants encounter within the criminal justice system. These procedural disadvantages in-crease the probability of erroneous convictions, making irrevocable punishment inappropriate. Opponents of death penalty exceptions for the mentally retarded often argue that such a rule will be abused by those faking retardation. Yet requirements of proof of diagnosis prior to adulthood make feigning retardation very difficult. The continued racial prejudice in application of the death penalty places the mentally retarded black or Latino defendant in an almost no-win situation. Finally, some advocates for the mentally retarded believe that the issue of capital punishment should be decided for each individual case, rather than creating a blanket exception for all who are classified as retarded. They feel that such categorizations ignore the wide variation among people with mental retardation.Until individualized treatment is the standard for civil rights, however, it should not be the standard for the death penalty.

The third section of this Article will analyze the Supreme Court’s 1989 decision in Penry v. Lynaugh, in which a five-to-four majority of the Court declared that the execution of the mentally retarded did not violate the Eighth Amendment’s proscription of cruel and unusual punishment. I will then discuss how the Court determines whether or not a national consensus against a particular application of the death penalty exists. In the fourth section, I will analyze the Court’s new composition since the Penry decision and discuss what effect, if any, the new justices will have on this issue.These sections will demonstrate that the catalyst for change in this area of the law must come from the state legislatures. The Supreme Court will not alter its position unless enough states to represent a consensus declare their opposition to the use of capital punishment against the mentally retarded.

The fifth section of this Article explores how states may pass legislation to end the execution of the mentally retarded. In order to determine which strategies would be effective in achieving these reforms, I inter-viewed a number of legislators and their aides in states where these measures have either succeeded or failed. I will also compare various enacted laws to determine whether any consensus has been reached on important issues such as the burden of proof needed to demonstrate retardation, the timing of the hearing on the defendant’s alleged mental retardation, or the court appointment of mental health experts.

Finally, I will recommend model legislation banning the execution of the mentally retarded and strategies for its passage in a state legislature.This model legislation is based on the American Association on MentalRetardation’s 1992 revised definition of mental retardation as the basis of the bill. I will also propose that the IQ test be used as flexible, not dispositive, evidence of mental retardation; that the hearing on the defendant’s alleged mental retardation take place before the trial on guilt or innocence; that the court provide for two psychiatrists or psychologists, or one of each, to help determine the defendant’s mental status; that the burden of proof for mental retardation be a preponderance of the evidence, not a clear and convincing standard; and that the legislation not apply retroactively to defendants who have already been sentenced to death.

The successful passage of legislation banning the execution of the mentally retarded requires a comprehensive effort. A coalition must be formed between those who oppose the death penalty under any circumstances and those who support capital punishment but would exclude men-tally retarded defendants from its application. This coalition must build a consensus that the execution of the mentally retarded, which serves no deterrent or retributive function, has no place in a civilized society. Success of this legislation may depend on a popular sponsor, well-versed in the art of compromise; an inclusive lobbying effort uniting church groups, advocates for the mentally retarded, and state prosecutors inclined toward resistance, and persuasive documentation reflecting a clear agenda.