Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are "cruel and unusual punishments" prohibited by the Eighth Amendment to the Federal Constitution.

* Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Jones and Atkins both testified in the guilt phase of Atkins' trial.1 Each confirmed most of the details in the other's account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones' testimony, which was both more coherent and credible than Atkins', was obviously credited by the jury and was sufficient to establish Atkins' guilt.2 At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and "vileness of the offense." To prove future dangerousness, the State relied on Atkins' prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased's body and the autopsy report.

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was "mildly mentally retarded."3 His conclusion was based on interviews with people who knew Atkins,4 a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59.5

The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 (1999). At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of "average intelligence, at least," and diagnosable as having antisocial personality disorder.6 App. 476. The jury again sentenced Atkins to death.

The Supreme Court of Virginia affirmed the imposition of the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend "that he is mentally retarded and thus cannot be sentenced to death." Id., at 386, 534 S. E. 2d, at 318. The majority of the state court rejected this contention, relying on our holding in Penry. 260 Va., at 387, 534 S. E. 2d, at 319. The court was "not willing to commute Atkins' sentence of death to life imprisonment merely because of his IQ score." Id., at 390, 534 S. E. 2d, at 321.

Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow's opinion that Atkins possesses average intelligence as "incredulous as a matter of law," and concluded that "the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive." Id., at 394, 395-396, 534 S. E. 2d, at 323-324. In their opinion, "it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way." Id., at 397, 534 S. E. 2d, at 325.

Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case. 533 U. S. 976 (2001).

The Eighth Amendment succinctly prohibits "[e]xcessive" sanctions. It provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In Weems v. United States, 217 U. S. 349 (1910), we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained "that it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense." Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U. S. 957, 997-998 (1991) (KENNEDY, J., concurring in part and concurring in judgment); see also id., at 1009-1011 (White, J., dissenting).7 Thus, even though "imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual," it may not be imposed as a penalty for "the `status' of narcotic addiction," Robinson v. California, 370 U. S. 660, 666-667 (1962), because such a sanction would be excessive. As Justice Stewart explained in Robinson: "Even one day in prison would be a cruel and unusual punishment for the `crime' of having a common cold." Id., at 667.

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the "Bloody Assizes" or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958): "The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.... The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Id., at 100-101.

Proportionality review under those evolving standards should be informed by "`objective factors to the maximum possible extent,'" see Harmelin, 501 U. S., at 1000 (quoting Rummel v. Estelle, 445 U. S. 263, 274-275 (1980)). We have pinpointed that the "clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures." Penry, 492 U. S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593-596 (1977), or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789-793 (1982). In Coker, we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to support the conclusion that the "current judgment," though "not wholly unanimous," weighed very heavily on the side of rejecting capital punishment as a "suitable penalty for raping an adult woman." Coker, 433 U. S., at 596. The "current legislative judgment" relevant to our decision in Enmund was less clear than in Coker but "nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue." Enmund, 458 U. S., at 793.

We also acknowledged in Coker that the objective evidence, though of great importance, did not "wholly determine" the controversy, "for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." 433 U. S., at 597. For example, in Enmund, we concluded by expressing our own judgment about the issue:

"For purposes of imposing the death penalty, Enmund's criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment." 458 U. S., at 801 (emphasis added).

Thus, in cases involving a consensus, our own judgment is "brought to bear," Coker, 433 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia8 apparently led to the enactment of the first state statute prohibiting such executions.9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a "sentence of death shall not be carried out upon a person who is mentally retarded."10 In 1989, Maryland enacted a similar prohibition.11 It was in that year that we decided Penry, and concluded that those two state enactments, "even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus." 492 U. S., at 334.

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue. In 1990, Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994.12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded.13 Nebraska followed suit in 1998.14 There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States — South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina — joined the procession.15 The Texas Legislature unanimously adopted a similar bill,16 and bills have passed at least one house in other States, including Virginia and Nevada.17

It is not so much the number of these States that is significant, but the consistency of the direction of change.18 Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition.19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry.20 The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.21

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U. S. 399 (1986), with regard to insanity, "we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." Id., at 405, 416-417.22

This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.

As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.23 There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.24 Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.), identified "retribution and deterrence of capital crimes by prospective offenders" as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person "measurably contributes to one or both of these goals, it `is nothing more than the purposeless and needless imposition of pain and suffering,' and hence an unconstitutional punishment." Enmund, 458 U. S., at 798.

With respect to retribution — the interest in seeing that the offender gets his "just deserts" — the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980), we set aside a death sentence because the petitioner's crimes did not reflect "a consciousness materially more `depraved' than that of any person guilty of murder." Id., at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence — the interest in preventing capital crimes by prospective offenders — "it seems likely that `capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,'" Enmund, 458 U. S., at 799. Exempting the mentally retarded from that punishment will not affect the "cold calculus that precedes the decision" of other potential murderers. Gregg, 428 U. S., at 186. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable — for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses — that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk "that the death penalty will be imposed in spite of factors which may call for a less severe penalty," Lockett v. Ohio, 438 U. S. 586, 605 (1978), is enhanced, not only by the possibility of false confessions,25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 492 U. S., at 323-325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason the legislatures that have"to disagree with the judgment of recently addressed the matter" and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our "evolving standards of decency," we therefore conclude that such punishment is excessive and that the Constitution "places a substantive restriction on the State's power to take the life" of a mentally retarded offender. Ford, 477 U. S., at 405.

The judgment of the Virginia Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i. e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante, at 314-315.

I agree with JUSTICE SCALIA, post, at 337-338 (dissenting opinion), that the Court's assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority's subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court's decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante, at 316-317, n. 21. The Court's suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any "permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved." Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court's uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is "cruel and unusual" under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the "clearest and most reliable objective evidence of contemporary values." Penry v. Lynaugh, 492 U. S. 302, 331 (1989). See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987). The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. "`[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.'" Gregg v. Georgia, 428 U. S. 153, 175-176 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger, C. J., dissenting)). And because the specifications of punishments are "peculiarly questions of legislative policy," Gore v. United States, 357 U. S. 386, 393 (1958), our cases have cautioned against using "`the aegis of the Cruel and Unusual Punishment Clause'" to cut off the normal democratic processes, Gregg, supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, "`is a significant and reliable objective index of contemporary values,'" Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg, supra, at 181), because of the jury's intimate involvement in the case and its function of "`maintain[ing] a link between contemporary community values and the penal system,'" Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)). In Coker, supra, at 596-597, for example, we credited data showing that "at least 9 out of 10" juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793-794 (1982), where evidence of the current legislative as that in Coker (but more " judgment was not as"compelling so than that here), we were persuaded by "overwhelming [evidence] that American juries ... repudiated imposition of the death penalty" for a defendant who neither took life nor attempted or intended to take life.

In my view, these two sources — the work product of legislatures and sentencing jury determinations — ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante, at 316-317, n. 21 (citing the Brief for European Union as Amicus Curiae 2). I fail to see, however, ever, how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination. While it is true that some of our the climate of international"prior opinions have looked to opinion," Coker, supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund, supra, at 796-797, n. 22; Trop v. Dulles, 356 U. S. 86, 102-103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could "serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people." Stanford, supra, at 369, n. 1 (emphasizing that "American conceptions of decency ... are dispositive" (emphasis in original)).

Stanford's reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund, Coker, or Trop suggests otherwise. Thompson, Enmund, and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries' sentencing choices germane. But the Trop plurality — representing the view of only a minority of the Court — offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford.

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante, at 316-317, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae; Brief for American Association on Mental Retardation et al. as Amici Curiae; noting that "representatives of widely diverse religious communities ... reflecting Christian, Jewish, Muslim, and Buddhist traditions ... `share a conviction that the execution of persons with mental retardation cannot be morally justified'"; and stating that "polling data shows a widespread consensus among Americans ... that executing the mentally retarded is wrong"). In my view, none should be accorded any weight on the Eighth Amendment scale when the elected representatives of a State's populace have not deemed them persuasive enough to prompt legislative action. In Penry, 492 U. S., at 334-335, we were cited similar data and declined to take them into consideration where the "public sentiment expressed in [them]" had yet to find expression in state law. See also Stanford, 492 U. S., at 377 (plurality opinion) (refusing "the invitation to rest constitutional law upon such uncertain foundations" as "public opinion polls, the views of interest groups, and the positions adopted by various professional associations"). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat — at the behest of private organizations speaking only for themselves — a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court's decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e. g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center's Reference Manual on Scientific Evidence 221-271 (1994) and its Manual for Complex Litigation § 21.493, pp. 101-103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical (e. g., "Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?"), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds "further support to [its] conclusion" that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante, at 317, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae 3a-7a, and cited by the Court, ante, at 317, n. 21:

STATE   POLL                    DATE    RESPONSE                QUESTION
        
        AR      Arkansans'              1992    61% never               "Some people say
                Opinion on the                  appropriate             that there is nothing
                Death Penalty,                  17% is appropriate      wrong with
                Opinion                         5% opposed to           executing a person
                Research                        all executions          who is mentally
                Associates, Inc.,               17% undecided           retarded. Others
                Q. 13 (July 1992)                                       say that the death
                                                                        penalty should never
                John DiPippa,                                           be imposed on a
                Will Fairchild's                                        person who is
                Death Violate                                           mentally retarded.
                the Constitution,                                       Which of these
                or Simply                                               positions comes
                Our Morality?,                                          closest to your
                Arkansas                                                own?"
                Forum,
                Sept. 1993

AZ      Behavior                2000    71% oppose              "For persons
                Research                        12% favor               convicted of murder,
                Center, Survey                  11% depends             do you favor or
                2000, Q. 3                      6% ref/unsure           oppose use of the
                (July 2000)                                             death penalty when
                                                                        the defendant is
                                                                        mentally retarded?"
        
        CA      Field Research          1989    64.8% not all           "Some people feel
                Corp., California               right                   there is nothing
                Death Penalty                   25.7% is all            wrong with
                Survey, Q. 22                   right                   imposing the death
                (Dec. 1989)                     9.5% no                 penalty on persons
                                                opinion                 who are mentally
                Frank Hill,                                             retarded depending
                Death Penalty                                           on the circumstances.
                For The                                                 Others
                Retarded, San                                           feel the death
                Diego                                                   penalty should never
                Union-Tribune,                                          be imposed on
                Mar. 28, 1993,                                          persons who are
                at G3                                                   mentally retarded
                                                                        under any
                                                                        circumstance. The
                                                                        death penalty on a
                                                                        mentally retarded
                                                                        person is ...?"
        
        CA      Field Research          1997    74% disagree            "Mentally retarded
                Corp., California               17% agree               defendants should be
                Death Penalty                   9% no opinion           given the death
                Survey, Q. 62D                                          penalty when they
                (Feb. 1997)                                             commit capital
                                                                        crimes."
                Paul Van
                Slambrouck,
                Execution and a
                Convict's
                Mental State,
                The Christian
                Science Monitor,
                Apr. 27, 1998,
                at 1
        
        CT      Quinnipac               2001    77% no                  "Do you think that
                University                      12% yes                 persons convicted of

        Polling                         11% don't               murder who are
                Institute, Death                know                    mentally retarded
                Penalty Survey                                          should or should not
                Info., Q. 35                                            receive the death
                (Apr. 23, 2001)                                         penalty?"
        
        FL      Amnesty                 1986    71% opposed             [not provided]
                International
        
                Martin
                Dyckman, Death
                Penalty's High
                Price,
                St. Petersburg
                Times, Apr. 19,
                1992, at 3D
        
        GA      Georgia State           1987    66% opposed             [not provided]
                University                      17% favor
                                                16% depends
                Tracy
                Thompson,
                Executions of
                Retarded
                Opposed,
                Atlanta Journal,
                Jan. 6, 1987,
                at 1B
        
        LA      Marketing               1993    77.7% no                "Would you vote for
                Research Inst.,                 9.2% yes                the death penalty if
                Loyola Death                    13% uncertain           the convicted person
                Penalty Survey,                                         is mentally
                Q. 7 (Feb. 1993)                                        retarded?"
        
        LA      Louisiana Poll,         2001    68% no                  "Do you believe
                Poll 104, Q. 9                  19% yes                 mentally retarded
                (Apr. 2001)                     11% no opinion          people, who are
                                                2% won't say            convicted of capital
                                                                        murder, should be
                                                                        executed?"
        
        MD      Survey                  1988    82% opposed             "Would you favor or
                Research                        8% favor                oppose the death
                Center,                         10% other               penalty for a person
                University of                                           convicted of murder
                Maryland                                                if he or she is
                (Nov. 1988)                                             mentally retarded?"

MO      Missouri Mental         1993    61.3% not all           "Some people feel
                Retardation and                 right                   there is nothing
                Death Penalty                   23.7% is all            wrong with
                Survey, Q. 5                    right                   imposing the death
                (Oct. 1993)                     15% don't               penalty on persons
                                                know                    who are mentally
                                                                        retarded depending
                                                                        on the circumstances.
                                                                        Others
                                                                        feel that the death
                                                                        penalty should never
                                                                        be imposed on
                                                                        persons who are
                                                                        mentally retarded
                                                                        under any circumstances.
                                                                        Do you
                                                                        think it IS or IS
                                                                        NOT all right to
                                                                        impose the death
                                                                        penalty on a
                                                                        mentally retarded
                                                                        person?"
        
        NC/SC   Charlotte               2000    64% yes                 "Should the
                Observer-WMTV                   21% no                  Carolinas ban the
                News                            14% not sure            execution of people
                Poll (Sept. 2000)                                       with mental
                                                                        retardation?"
                Diane Suchetka,
                Carolinas Join
                Emotional
                Debate Over
                Executing
                Mentally
                Retarded,
                Charlotte
                Observer,
                Sept. 13, 2000
        
        NM      Research &              1990    57.1% oppose            62% support the
                Polling Inc., Use               10.5% support           death penalty.
                of the Death                    26.2% depends           Asked of those that
                Penalty Public                  6.1% don't              support it, "for
                Opinion Poll,                   know                    which of the
                Q. 2 (Dec. 1990)                                        following do you
                                                                        support use of the

                                                                death penalty ...
                                                                        when the convicted
                                                                        person is mentally
                                                                        retarded?"
        
        NY      Patrick Caddell         1989    82% oppose              "I'd like you to
                Enterprises, NY                 10% favor               imagine you are a
                Public Opinion                  9% don't know           member of a jury.
                Poll, The Death                                         The jury has found
                Penalty: An                                             the defendant guilty
                Executive                                               of murder beyond a
                Summary, Q. 27                                          reasonable doubt
                (May 1989)                                              and now needs to
                                                                        decide about
                Ronald Tabak &                                          sentencing. You
                J. Mark Lane,                                           are the last juror to
                The Execution                                           decide and your
                of Injustice: A                                         decision will
                Cost and                                                determine whether
                Lack-of-Benefit                                         or not the offender
                Analysis of the                                         will receive the
                Death Penalty,                                          death penalty.
                23 Loyola (LA)                                          Would you favor or
                L. Rev. 59, 93                                          oppose sentencing
                (1989)                                                  the offender to the
                                                                        death penalty if ...
                                                                        the convicted person
                                                                        were mentally
                                                                        retarded?"
        
        OK      Survey of               1999    83.5% should            "Some people think
                Oklahoma                        not be                  that persons
                Attitudes                       executed                convicted of murder
                Regarding                       10.8% should            who are mentally
                Capital                         be executed             retarded (or have a
                Punishment:                     5.7% depends            mental age of
                Survey                                                  between 5 and 10
                Conducted for                                           years) should not be
                Oklahoma                                                executed. Other
                Indigent                                                people think that
                Defense System,                                         `retarded' persons
                Q. C (July 1999)                                        should be subject to
                                                                        the death penalty
                                                                        like anyone else.
                                                                        Which is closer to

                                                                the way you feel,
                                                                        that `retarded'
                                                                        persons should not
                                                                        be executed, or that
                                                                        `retarded' persons
                                                                        should be subject to
                                                                        the death penalty
                                                                        like everyone else?"
        
        TX      Austin                  1988    73% opposed             [not provided]
                American
                Statesman, Nov.
                15, 1988, at B3
        
        TX      Sam Houston             1995    61% more                "For each of the
                State                           likely to               following items that
                University,                     oppose                  have been found to
                College of                                              affect people's
                Criminal                                                attitude about the
                Justice, Texas                                          death penalty, please
                Crime Poll                                              state if you would be
                On-line (1995)                                          more likely to favor
                                                                        or more likely to
                Domingo                                                 oppose the death
                Ramirez, Jr.,                                           penalty, or wouldn't
                Murder Trial                                            it matter ... if the
                May Hinge on                                            murderer is severely
                Defendant's IQ,                                         mentally retarded?"
                The Fort Worth
                Star-Telegram,
                Oct. 6, 1997, at 1
        
        TX      Scripps-Howard          2001    66% no                  "Should the state
                Texas Poll:                     17% yes                 use the death
                Death Penalty                   17% don't               penalty when the
                (Mar. 2001)                     know/no                 inmate is considered
                                                answer                  mentally retarded?"
                Dan Parker,
                Most Texans
                Support Death
                Penalty, Corpus
                Christi
                Caller-Times,
                Mar. 2, 2001, at
                A1

TX      Houston                 2001    59.9% no                "Would you support
                Chronicle (Feb.                 support                 the death penalty if
                2001)                           19.3% support           you were convinced
                                                20.7% not sure/         the defendant were
                Stephen                         no answer               guilty, but the
                Brewer & Mike                                           defendant is
                Tolson, A                                               mentally impaired?"
                Deadly
                Distinction:
                Part III, Debate
                Fervent in
                Mental Cases,
                Johnny Paul
                Penry
                Illustrates a
                Lingering
                Capital
                Conundrum,
                The Houston
                Chronicle, Feb.
                6, 2001, at A6
        
        US      Harris Poll,            1988    71% should not          "Some people think
                Unfinished                      be executed             that persons
                Agenda on                       21% should be           convicted of murder
                Race, Q. 32                     executed                who have a mental
                (Sept. 1988)                    4% depends              age of less than 18
                                                3% not sure/            (or the `retarded')
                Saundra Torry,                  refused                 should not be
                High Court to                                           executed. Other
                Hear Case on                                            people think that
                Retarded                                                `retarded' persons
                Slayer, The                                             should be subject to
                Washington                                              the death penalty
                Post, Jan. 11,                                          like anyone else.
                1989, at A6                                             Which is closer to
                                                                        the way you feel,
                                                                        that `retarded'
                                                                        persons should not
                                                                        be executed, or that
                                                                        `retarded' persons
                                                                        should be subject to
                                                                        the death penalty
                                                                        like anyone else?"

US      Yankelovich             1989    61% oppose              "Do you favor or
                Clancy Shulman,                 27% favor               oppose the death
                Time/CNN Poll,                  12% not sure            penalty for mentally
                Q. 14 (July 7,                                          retarded individuals
                1989)                                                   convicted of serious
                                                                        crimes, such as
                Samuel R.                                               murder?"
                Gross, Second
                Thoughts:
                Americans'
                Views on the
                Death Penalty
                at the Turn of
                the Century,
                Capital
                Punishment and
                the American
                Future
                (Feb. 2001)
        
        US      The Tarrance            1993    56% not all             "Some people feel
                Group, Death                    right                   that there is nothing
                Penalty Poll,                   32% is all right        wrong with
                Q. 9 (Mar. 1993)                11% unsure              imposing the death
                                                                        penalty on persons
                Samuel R.                                               who are mentally
                Gross, Update:                                          retarded, depending
                American                                                on the
                Public Opinion                                          circumstances.
                on the Death                                            Others feel that the
                Penalty — It's                                           death penalty should
                Getting                                                 never be imposed on
                Personal, 83                                            persons who are
                Cornell L. Rev.                                         mentally retarded
                1448, 1467 (1998)                                       under any
                                                                        circumstances.
                                                                        Which of these
                                                                        views comes closest
                                                                        to your own?"
        
        US      Public Policy           1995    67% likely to           "For each item
                Research, Crime                 oppose                  please tell me if you
                in America,                     7% likely to            would be more likely
                Q. 72 (July 1995)               favor                   to favor the death
                                                26% wouldn't            penalty, more likely
                                                matter                  to oppose the death

                                                                penalty or it
                                                                        wouldn't matter ...
                                                                        if it is true that the
                                                                        murderer is severely
                                                                        mentally retarded?"
        
        US      Princeton               1995    83% oppose              "If the convicted
                Research,                       9% favor                person was ...
                Newsweek Poll,                  8% don't know           mentally retarded,
                Q. 16 (Nov. 1995)               refused                 would you favor or
                                                                        oppose the death
                Samuel R.                                               penalty?"
                Gross, Update:
                American
                Public Opinion
                on the Death
                Penalty — It's
                Getting
                Personal, 83
                Cornell L. Rev.
                1448, 1468 (1998)
        
        US      Peter Hart              1999    58% strongly/           "... [F]or each
                Research                        somewhat                proposal I read,
                Associates, Inc.,               favor                   please tell me
                Innocence                       26% strongly/           whether you
                Survey, Q. 12                   somewhat                strongly favor,
                (Dec. 1999)                     oppose                  somewhat favor,
                                                12% mixed/              have mixed or
                                                neutral                 neutral feelings,
                                                4% not sure             somewhat oppose, or
                                                                        strongly oppose that
                                                                        proposal ....
                                                                        [P]rohibit the death
                                                                        penalty for
                                                                        defendants who are
                                                                        mentally retarded."
        
        US      Peter Hart              1999    72% much/               "Suppose you were
                Research                        somewhat less           on a jury and a
                Associates, Inc.,               likely                  defendant was
                Innocence                       19% no                  convicted of murder.
                Survey, Q. 9                    difference              "Now it is time to
                (Dec. 1999)                     9% not sure             determine the
                                                47% much less           sentence. If you
                                                likely                  knew that the

                                        25% somewhat            defendant was
                                                less likely             mentally retarded or
                                                                        otherwise mentally
                                                                        impaired in a serious
                                                                        way, would you be
                                                                        much less likely to
                                                                        support the use of
                                                                        the death penalty in
                                                                        this specific case,
                                                                        somewhat less likely,
                                                                        or would it make no
                                                                        difference to you?"
        
        US      Houston                 2001    63.8% no                "Would you support
                Chronicle                       support                 the death penalty if
                (Feb. 2001)                     16.4% support           you were convinced
                                                19.8% not sure/         the defendant were
                Stephen                         no answer               guilty, but the
                Brewer &                                                defendant is
                Mike Tolson,                                            mentally impaired?"
                A Deadly
                Distinction:
                Part III, Debate
                Fervent in
                Mental Cases,
                Johnny Paul
                Penry
                Illustrates a
                Lingering
                Capital
                Conundrum,
                The Houston
                Chronicle, Feb.
                6, 2001, at A6

[DS] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.

Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.

* I begin with a brief restatement of facts that are abridged by the Court but important to understanding this case. After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.

The jury convicted Atkins of capital murder. At resentencing (the Virginia Supreme Court affirmed his conviction but remanded for resentencing because the trial court had used an improper verdict form, 257 Va. 160, 179, 510 S. E. 2d 445, 457 (1999)), the jury heard extensive evidence of petitioner's alleged mental retardation. A psychologist testified that petitioner was mildly mentally retarded with an IQ of 59, that he was a "slow learner," App. 444, who showed a "lack of success in pretty much every domain of his life," id., at 442, and that he had an "impaired" capacity to appreciate the criminality of his conduct and to conform his conduct to the law, id., at 453. Petitioner's family members offered additional evidence in support of his mental retardation claim (e. g., that petitioner is a "follower," id., at 421). The Commonwealth contested the evidence of retardation and presented testimony of a psychologist who found "absolutely no evidence other than the IQ score ... indicating that [petitioner] was in the least bit mentally retarded" and concluded that petitioner was "of average intelligence, at least." Id., at 476.

The jury also heard testimony about petitioner's 16 prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming. Id., at 491-522. The victims of these offenses provided graphic depictions of petitioner's violent tendencies: He hit one over the head with a beer bottle, id., at 406; he slapped a gun across another victim's face, clubbed her in the head with it, knocked her to the ground, and then helped her up, only to shoot her in the stomach, id., at 411-413. The jury sentenced petitioner to death. The Supreme Court of Virginia affirmed petitioner's sentence. 260 Va. 375, 534 S. E. 2d 312 (2000).

As the foregoing history demonstrates, petitioner's mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt him from the death penalty in light of the brutality of his crime and his long demonstrated propensity for violence. "In upsetting this particularized judgment on the basis of a constitutional absolute," the Court concludes that no one who is even slightly mentally retarded can have sufficient "moral responsibility to be subjected to capital punishment for any crime. As a sociological and moral conclusion that is implausible; and it is doubly implausible as an interpretation of the United States Constitution." Thompson v. Oklahoma, 487 U. S. 815, 863-864 (1988) (SCALIA, J., dissenting).

Under our Eighth Amendment jurisprudence, a punishment is "cruel and unusual" if it falls within one of two categories: "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted," Ford v. Wainwright, 477 U. S. 399, 405 (1986), and modes of punishment that are inconsistent with modern "`standards of decency,'" as evinced by objective indicia, the most important of which is "legislation enacted by the country's legislatures," Penry v. Lynaugh, 492 U. S. 302, 330-331 (1989).

The Court makes no pretense that execution of the mildly mentally retarded would have been considered "cruel and unusual" in 1791. Only the severely or profoundly mentally retarded, commonly known as "idiots," enjoyed any special status under the law at that time. They, like lunatics, suffered a "deficiency in will" rendering them unable to tell right from wrong. 4 W. Blackstone, Commentaries on the Laws of England 24 (1769) (hereinafter Blackstone); see also Penry, 492 U. S., at 331-332 ("[T]he term `idiot' was generally used to describe persons who had a total lack of reason or understanding, or an inability to distinguish between good and evil"); id., at 333 (citing sources indicating that idiots generally had an IQ of 25 or below, which would place them within the "profound" or "severe" range of mental retardation under modern standards); 2 A. Fitz-Herbert, Natura Brevium 233B (9th ed. 1794) (originally published 1534) (An idiot is "such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is, etc., so as it may appear that he hath no understanding of reason what shall be for his profit, or what for his loss"). Due to their incompetence, idiots were "excuse[d] from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses." 4 Blackstone 25; see also Penry, supra, at 331. Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them from "go[ing] loose, to the terror of the king's subjects." 4 Blackstone 25; see also S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 12-14 (3d ed. 1985); 1 Blackstone 292-296; 1 M. Hale, Pleas of the Crown 33 (1st Am. ed. 1847). Mentally retarded offenders with less severe impairments — those who were not "idiots" — suffered criminal prosecution and punishment, including capital punishment. See, e. g., I. Ray, Medical Jurisprudence of Insanity 65, 87-92 (W. Overholser ed. 1962) (recounting the 1834 trial and execution in Concord, New Hampshire, of an apparent "imbecile" — imbecility being a less severe form of retardation which "differs from idiocy in the circumstance that while in [the idiot] there is an utter destitution of every thing like reason, [imbeciles] possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind"); A. Highmore, Law of Idiocy and Lunacy 200 (1807) ("The great difficulty in all these cases, is to determine where a person shall be said to be so far deprived of his sense and memory as not to have any of his actions imputed to him: or where notwithstanding some defects of this kind he still appears to have so much reason and understanding as will make him accountable for his actions ...").

The Court is left to argue, therefore, that execution of the mildly retarded is inconsistent with the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion) (Warren, C. J.). Before today, our opinions consistently emphasized that Eighth Amendment judgments regarding the existence of social "standards" "should be informed by objective factors to the maximum possible extent" and "should not be, or appear to be, merely the subjective views of individual Justices." Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion); see also Stanford v. Kentucky, 492 U. S. 361, 369 (1989); McCleskey v. Kemp, 481 U. S. 279, 300 (1987); Enmund v. Florida, 458 U. S. 782, 788 (1982). "First" among these objective factors are the "statutes passed by society's elected representatives," Stanford, supra, at 370; because it "will rarely if ever be the case that the Members of this Court will have a better sense of the evolution in views of the American people than do their elected representatives," Thompson, supra, at 865 (SCALIA, J., dissenting).

The Court pays lipservice to these precedents as it miraculously extracts a "national consensus" forbidding execution of the mentally retarded, ante, at 316, from the fact that 18 States — less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists) — have very recently enacted legislation barring execution of the mentally retarded. Even that 47% figure is a distorted one. If one is to say, as the Court does today, that all executions of the mentally retarded are so morally repugnant as to violate our national "standards of decency," surely the "consensus" it points to must be one that has set its righteous face against all such executions. Not 18 States, but only 7 — 18% of death penalty jurisdictions — have legislation of that scope. Eleven of those that the Court counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date of the legislation;1 those already on death row, or consigned there before the statute's effective date, or even (in those States using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches. Two of these States permit execution of the mentally retarded in other situations as well: Kansas apparently permits execution of all except the severely mentally retarded;2 New York permits execution of the mentally retarded who commit murder in a correctional facility. N. Y. Crim. Proc. Law § 400.27.12(d) (McKinney 2001); N. Y. Penal Law § 125.27 (McKinney 2002).

But let us accept, for the sake of argument, the Court's faulty count. That bare number of States alone — 18 — should be enough to convince any reasonable person that no "national consensus" exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to "consensus"? Our prior cases have generally required a much higher degree of agreement before finding a punishment cruel and unusual on "evolving standards" grounds. In Coker, supra, at 595-596, we proscribed the death penalty for rape of an adult woman after finding that only one jurisdiction, Georgia, authorized such a punishment. In Enmund, supra, at 789, we invalidated the death penalty for mere participation in a robbery in which an accomplice took a life, a punishment not permitted in 28 of the death penalty States (78%). In Ford, 477 U. S., at 408, we supported the common-law prohibition of execution of the insane with the observation that "[t]his ancestral legacy has not outlived its time," since not a single State authorizes such punishment. In Solem v. Helm, 463 U. S. 277, 300 (1983), we invalidated a life sentence without parole under a recidivist statute by which the criminal "was treated more severely than he would have been in any other State." What the Court calls evidence of "consensus" in the present case (a fudged 47%) more closely resembles evidence that we found inadequate to establish consensus in earlier cases. Tison v. Arizona, 481 U. S. 137, 154, 158 (1987), upheld a state law authorizing capital punishment for major participation in a felony with reckless indifference to life where only 11 of the 37 death penalty States (30%) prohibited such punishment. Stanford, supra, at 372, upheld a state law permitting execution of defendants who committed a capital crime at age 16 where only 15 of the 36 death penalty States (42%) prohibited death for such offenders.

Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 States it relies on is still in its infancy.