Penry v. Lynaugh

The Court's opinion in Penry expressed uncertainty about the constitutionality of executing a mentally handicapped individual. O'Connor essentially deferred to the legislative branch suggesting that if a majority of the public opposed the practice that sentiment would eventually find its way into legislative statutes. Although the petitioner offered empirical data suggesting that a majority of people opposed the execution of mentally handicapped individuals, even in Texas where capital punishment is generally accepted, O'Connor was not persuaded to resolve the matter. Since Penry the public has decisively weighed in on the matter. Organizations such as the American Association on Mental Retardation (AAMR), the Association for Retarded Citizens (ARC) and the American Psychological Association (APA) have formally adopted positions in opposition to administering the death penalty to mentally handicapped individuals. In addition, some states have adopted legislation prohibiting the practice.

O'Connor's opinion in Penry was important because it suggested that the Court should include the "national consensus" on matters in its deliberations. Justice Scalia echoed O'Connor's point in Stanford v. Kentucky (1989) stating that the Supreme Court has a "constitutional obligation" to consider the sentiments of the public, or to conduct what he called "proportionality analysis." If the Court is true to its word, it seems likely that the application of capital punishment to mentally handicapped individuals will be prohibited by the Court in due course.