California's statute also offers no clear definition. In the wake of that Supreme Court ruling, Mr. Ellis helped draft guidelines under the auspices of the American Bar Association that could be adopted by states or judges. The most commonly used standard simply requires that the perpetrator understand he is to be executed. In this case, the judge is requiring that the jury be convinced Kelly understands he is to be executed and why. Earlier this month Nebraska became the 12th state to outlaw capital punishment for the retarded, though, according to the Death Penalty Information Center, the number of mentally ill being put to death continues to grow and now numbers 33.
Opinion polls show strong public opposition to executing the retarded.
Attitudes are murkier on mental illness, partly because medically it has so many gradations. The public has also grown suspicious of it as a legal strategy used by lawyers to excuse their clients from responsibility. In the Kelly case, the jury is considering only his mental competency now, not when he committed his crimes. But for death-penalty advocates, that distinction matters little. We offer them for your additional research.