The uneven application of the death penalty has forced many judges and states to frequently rethink its very purpose. Illinois and Maryland, for example, have suspended executions to probe irregular practices that lead up to them.
Americans generally are having more doubts about the way capital cases are handled, especially when death row is found to include many innocents. Among other issues: inadequate legal representation, possible withholding of exculpatory evidence by prosecutors or police, statistical evidence that racial minorities are more likely to face a death penalty, and the mental competence of the accused.
Last week's 6-to-3 ruling by the US Supreme Court must be viewed in this context. By making the execution of mentally impaired individuals unconstitutional reversing its own ruling of just 13 years ago the court adds to the debate over how to apply the ultimate punishment more justly.
State-sanctioned killing of people who may not be able to understand the gravity of their acts or aid in their own defense is repugnant. They, like children, shouldn't be subject to capital punishment because they're not as culpable for their crimes.
But drawing a line between those who should be subject to a death sentence and those who shouldn't calls for precision where precision is elusive. Some states that currently ban capital punishment for the retarded rely simply on I.Q. tests. Such measures are hardly infallible.
The court emphasized that its ruling was impelled by an evolving "national consensus" over what is "cruel and unusual punishment." But can the ultimate sanction be based on so fickle a standard as opinion polls?
The court, by citing an evolution of standards to justify a ban on executions of the retarded, has thus made it even more difficult to apply the death penalty in a consistent way. It may use the same reasoning in a case before it that challenges a Kentucky law allowing the execution of people as young as 16 years old.
Ironically, this latest decision may further push public opinion to outlaw the death penalty, leaving the courts out of the debate altogether.