The Abolitionist’s Dilemma: Establishing the Standards for the Evolving Standards of Decency

[Excerpt] “For those who believe that the death penalty should be declared unconstitutional and that the U.S. Supreme Court is the institution that should make that declaration, these are interesting times. On one hand, the Rehnquist Court, which had previously not been a reliable friend of criminal defendants, in 2002, ruled that it was unconstitutional to execute mentally retarded defendants, and in 2005 it came to the same conclusion as to defendants who committed a capital crime before his or her eighteenth birthday. On the other hand, close scrutiny of these opinions evidences that the Court all but casts aside methodology to reach the apparently desired outcome. The Court’s rulings that neither juveniles nor mentally retarded defendants could be executed were welcome pronouncements to death penalty abolitionists—that is, those who advocate for and work toward the legal prohibition of capital punishment. However, that is not the end of the story.