We have seen how the justice system has serious flaws at every stage, and especially if the accused is poor, as are most criminal defendants who are sentenced to death. Lawyers defending people whose lives are at stake are often inexperienced or incompetent, and poorly paid. Two thirds of death penalty trials nationwide are marred by serious constitutional errors, according to reviewing courts.

We have seen public support for the death penalty decrease significantly. It is still over 50 percent nationally, but it falls below 50 percent if the alternative is life in prison with no opportunity for parole.

We have seen Governor Ryan of Illinois appoint a commission of experts, both supporters and opponents of capital punishment, to determine whether the death penalty can, under any circumstances, be administered reliably so innocent people will never be executed. The findings and recommendations of that commission will be important for the entire country.

In Virginia, a State with many people on death row, the legislature recently took note of the growing concerns surrounding capital punishment, and decided to review the administration of the death penalty in Virginia where there have been serious mistakes.

In October, the Virginia Governor pardoned Earl Washington, a mentally retarded farmhand, after new DNA tests cleared him of the rape and murder that once brought him within 9 days of execution.

Just this morning, the Washington Post reported that DNA tests had cleared another death row inmate--unfortunately, too late to be of any help. Before dying of cancer earlier this year, Frank Lee Smith spent 14 years on Florida's death row for a rape and murder that it now appears he did not commit.

I have introduced legislation with Senators Gordon Smith, Susan Collins, and 12 other Senators, to address some of these most egregious flaws. I have spoken many times about our bill, the Innocence Protection Act, which we plan to pursue in the 107th Congress.

Our legislation addresses the horrendous problem of innocent people being condemned to death. But today I want to mention briefly a related issue which is illustrated by a case in Texas, the State which this year has executed more people than any other State in the post-war era.

The Supreme Court stayed the execution of Johnny Paul Penry on November 16, 2000, less than four hours before he was scheduled to die by lethal injection in Texas. The Court has now scheduled the case for argument.

Johnny Penry, who in 1979 raped and murdered a 22 year old woman, has been on death row for twenty years. He committed a terrible crime; there has never been any doubt about that. But besides the crime itself, what makes Johnny Penry's case so disturbing is that he has an IQ of 56. What that means is that he has the intelligence of a 6-year old child.

Mr. President, 11 years ago the Supreme Court ruled that it is not cruel and unusual punishment to execute the mentally retarded. I disagree with that decision. But more importantly, despite the Supreme Court ruling, 13 States with capital punishment and the Federal Government have forbidden execution of the mentally retarded, and a clear majority of Americans oppose the practice.

The State Senator who in 1998 sponsored Nebraska's bill to prohibit execution of the mentally retarded later said that it should not have been necessary because ``no civilized, mature society would ever entertain the possibility of executing anybody who was mentally retarded.''

Executing the mentally retarded is wrong; it is immoral. People with mental retardation have a diminished capacity to understand right from wrong. As Justice Brennan wrote:

The impairment of a mentally retarded offender's reasoning ability, control over impulsive behavior, and moral development ..... limits his or her culpability so that, whatever other punishment might be appropriate, the ultimate penalty of death is always and necessarily disproportionate to his or her blameworthiness.

Proponents of the death penalty argue that it ``saves lives,'' but executing the mentally retarded cannot be justified on the grounds of deterrence. Let me again quote Justice Brennan, writing in 1989:

The very factors that make it disproportionate and unjust to execute the mentally retarded also make the death penalty of the most minimal deterrent effect so far as retarded potential offenders are concerned. Intellectual impairments in logical reasoning, strategic thinking, and foresight, the lack of the intellectual and developmental predicates of an ability to anticipate consequences, and impairment in the ability to control impulsivity, mean that the possibility of receiving the death penalty will not in the case of a mentally retarded person figure in some careful assessment of different courses of action. In these circumstances, the execution of mentally retarded individuals is nothing more than the purposeless and needless imposition of pain and suffering.

People with mental retardation are also more prone to make false confessions simply to please their interrogators, and they are often unable to assist their lawyer in preparing a defense.

We saw this with Earl Washington, who had an IQ of 69. Arrested for breaking into a neighbor's home during a drinking spree and hitting her with a chair, Washington readily confessed to a series of unsolved murders that he could not have committed.

Beyond all of this, executing the mentally retarded severely damages the standing of the United States in the international community. The United Nations has long condemned this practice. Just last year, the U.N. Commission on Human Rights called on nations ``not to impose the death penalty on a person suffering from any form of mental disorder.'' We should join the overwhelming majority of nations who do not execute the mentally retarded.

 Johnny Penry suffered relentless and severe physical and psychological abuse as a child, spends his time in prison coloring with crayons and looking at comic books he cannot read, and still believes in Santa Claus. I remember reading that when they stayed his execution he said, ``Does this mean I'm not allowed to have the special meal I was supposed to have?''--The last meal of the condemned man. He could not possibly have assisted meaningfully in his own defense.

No one can excuse Johnny Penry's crime, and no one suggests that he should be set free. But the question is what is the appropriate punishment for a defendant who is mentally retarded.

Neither our Constitution nor our national conscience permits the execution of a 6-year-old child for committing a heinous crime, and neither should we execute a person with the mental capacity of a 6-year-old. It offends the very idea of justice.

I yield the floor.