n a single week, the Supreme Court handed down two milestone rulings on capital punishment. On June 21, the Court declared that Americans' "evolving standards of decency" now argued against executing the mentally retarded. (Just two countries continue to execute the mentally retarded: Japan and Kyrgyzstan; North Carolinians exempted the mentally retarded last summer.) The majority of justices, six in all, cited the "national consensus" as they examined polling data and past state legislation in overturning the Virginia Supreme Court's 1989 ruling.

Three days later, the court declared that judges shouldn't be able to decide whether or not a convicted murderer is eligible for the death penalty. The ruling came down after the court decided, in the case of Ring v. Arizona, that Timothy Ring, who had been sentenced to death by a judge on the grounds of a testimony that the judge heard alone, could not be executed because the jury was not privy to the fact-finding.

According to Cindy Adcock, a Duke Law School lecturing fellow, the justices objected to the practice in capital cases of judges increasing maximum sentences on the basis of facts unavailable to juries. "In states where judges have been sentencing defendants, particularly in states where judges can override a jury decision, the judges tend to be very harsh and much of that is thought to be politically motivated."

And the particular case that the Supreme Court chose to revisit may be telling of the justices' intent. "If you look at Ring ," says Adcock, "you have a case where the facts were surprisingly thin on whether this person even committed the killing, which means, I think, that they're sending a signal: The death penalty in the United States is vulnerable. There are reasons why so many people are critical of this system, and the court is aware of this. They're showing that they're listening and observing, and they're responding to legislation being passed on the state level."

"It's certainly a narrowing of the death penalty in the United States," says Adcock. "But we don't know what's behind [the justices'] reasoning. I think that, if anything, it signals that the court is uneasy with the death penalty as it has been dispensed over recent years. They're concerned with the reliability of the sentences that have been imposed."

What has drawn the most heat over the Court's recent rulings has not been the rulings themselves but rather the Court's process of rationalization--specifically the evidence it's based on--as it applies to a decision that cites "national consensus." As The New York Times reported, the justices "all agreed with Chief Justice Earl Warren in a 1958 case, Trop v. Dulles, that 'the amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'" But, where is the proof that the national standards are truly evolving?

"As the dissent points out, they don't show a majority," says Adcock. "When you look at the states that have the death penalty, eighteen don't execute the mentally retarded, and twenty do. So, the dissent is saying, 'there's no majority in numbers,' and the majority of the Court is saying, 'well, yes, but numbers don't mean everything.' But what they're really looking at is the momentum. They not only took into account the states that have the death penalty and don't execute the mentally retarded, they added in states that don't execute anyone. They looked at the position of respected organizations, at polls about what the public is saying, and at state legislatures, even the ones that had not passed a ban against executing the mentally retarded but had come close. And then they even looked to the international status of the death penalty in respect to the mentally retarded. So they took a rather expansive view with their eyes wide open."

Wherever future decisions take the Court, one fact is clear about capital punishment: Fewer people are now eligible for the death penalty, and more people are responsible for coming to the decision to implement it.

--Patrick Adams