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July 9, 2002, 9:30 a.m. Supreme Inaccuracies Some technical problems with the Atkins decision. By James A. Cooley

he U.S. Supreme Court's recent 6-3 decision in Atkins v. Virginia decreed it was now an unconstitutionally cruel and unusual punishment to execute a mentally retarded person. The majority's rationale was that a national consensus had developed that such a practice was abhorrent and should be stopped.

The reasoning by which the court majority reached this decision was rebuked in a stinging dissent by Justice Antonin Scalia. Scalia might also find it interesting to discover that some of the data the court pointed to as justification for their decision was simply wrong.

Not only was it mistaken, but it was also easy to check — as all of the records are readily available from the Internet.

Here is an excerpt from the majority opinion in Atkins v. Virginia discussing ongoing legislative attempts to ban the execution of the mentally retarded:

The Texas Legislature unanimously adopted a similar bill… and bills have passed at least one house in other States, including Virginia and Nevada.

Here is the footnote that purports to give the legislative history of the Texas bill:

House Bill No. 236 passed the Texas House on April 24, 2001, and the Senate version, S. 686, passed the Texas Senate on May 16, 2001. Governor Perry vetoed the legislation on June 17, 2001.

First, SB 686 never came to the senate floor for a vote on April 24, 2001 or any other date because it died in the senate's criminal-justice committee on April 18, 2001.

This is error number one; now it's onto boo-boo number two regarding that "unanimous" legislative vote.

All bills filed in the Texas legislature are read one time on the floor of their respective chambers and then sent to a committee. If they emerge, the next step in the process is to be scheduled for votes on a second and third reading by the full chamber. Once a bill passes one chamber, it goes to the other and repeats the process.

If amended, lawmakers in the originating chamber either agree to concur with the changes or appoint a conference committee. Assuming the conference committee reaches consensus, their committee report version of the bill goes back to each chamber for an up or down vote.

Let's start on the house side, where HB 236 originated, with the second and third reading votes. These first two records both used unrecorded (non roll-call) votes. This means that specific members wishing to be shown voting against the measure had to request to be recorded as "no" votes.

The vote to move HB 236 to engrossment (second reading with all floor amendments incorporated) had six members (out of 150) that asked to be shown as voting no. When the bill came up for third reading in the House, the number of lawmakers that asked to have their opposition recorded rose to nine.

From here, the bill went over to the senate. Here the vote to consider the bill on second reading showed nine senators voting against it (out of 31). The vote to pass the bill on third reading had ten recorded opponents.

Changes made to the bill required a conference committee. Here is what happened when the conference committee reports went back for final approval.

On the senate side, the final vote was 20 in favor, nine against, and one present, but not voting. For the house, it was 80 voting yes and 56 opting for no.

In short, there was not a unanimous vote anywhere along the way.

Remember that six members of the highest court in America apparently used this erroneous information, at least in part, in formulating a precendent-setting decision regarding capital punishment. Just five minutes of Internet research — prompted by the fact that I covered the HB 236 as a reporter — documented these obvious errors.

Justice Scalia may feel even better about this particular dissenting opinion before it is all over.

— Mr. Cooley is senior correspondent for The Lone Star Report.