Imagine, they ask, a scenario in which forty-seven state legislatures have outlawed capital punishment, but two of the three nonconforming states allow execution of mentally retarded convicts. In this case, it’s hard to deny that the national standard of decency excludes the death penalty in general, and the death penalty for the mentally retarded even more so. To conclude otherwise concedes an awful lot of moral authority to the three states out of step with the national mood. The right fraction to consider here is 48 out of 50, not 1 out of 3. In real life, though, there is plainly no
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