Few issues in the United States have divided public sentiment in the way that the death penalty has. Whatever number may disapprove of the punishment in general, a greater majority are opposed to its use on the insane or the incompetent. (1) Until recently though, the federal government ignored opportunities to curb this action. (2) Fortunately, change has begun. (3) The 2002 case Atkins v. Virginia, saw the United States Supreme Court outlaw the execution of the mentally retarded because such punishment was seen to be a violation of the Eighth Amendment's prohibition on excessive punishments. (4) In announcing its decision, the Court chose not to define mental retardation, leaving the matter up to the individual states. (5) This unfortunate choice prevented uniform protection for the mentally retarded and has allowed for the haphazard application of the death penalty in the ensuing years. (6) This spring marks the fifth anniversary of this landmark decision and, though the landscape is sunnier than it was in the spring of 2002, there are still obstacles to overcome. This Note gives a recent history of the death penalty with regard to the mentally retarded and addresses the varied ways in which states have responded to the autonomy left them by the Supreme Court. This Note remarks that, without a future holding clarifying what constitutes mental retardation, states such as Alabama that have shown an affinity for execution will continue to violate the spirit, if not the letter, of the Eighth Amendment to the Constitution. It finally concludes that even a decision clarifying what constitutes mental retardation would not be enough, and that the only tolerable conclusion to the saga of the death penalty in American society is its outright abolition. I. THE DEATH PENALTY
