concur in results/dissents in part.
¶ 1 I concur in the results reached in the Court’s opinion, at least insofar as it affirms the District Court’s decision. And I compliment Judge Bass for recognizing that there is a distinct difference between the very narrow class of individuals deemed ineligible for the death penalty by the U.S. Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), i.e., those who are mentally retarded, and others who may have learning deficiencies or even other types of mental or emotional problems.
¶2 But beyond that, today’s decision is best regarded as an example of judicial activism and legislation spinning out of control, to which I must dissent. As such, it should serve as a wake-up call to the Oklahoma Legislature to craft mental retardation legislation that passes Constitutional muster but is also consistent with the will of the people.
¶ 3 Mental retardation issues have required this Court to exercise certain legislative functions out of necessity due to the timing of U.S. Supreme Court decisions, but the Court has now exceeded the role of the judiciary under the doctrine of separation of powers in our Republic. When Atkins v. Virginia was decided, a mental retardation claim raised in Murphy v. State, 2002 OK CR 32, 54 P.3d 556 was ripe for review and had to be addressed in light thereof, without legislative input. (A bill prohibiting the execution of the mentally retarded had been passed by the Legislature but was thereafter vetoed by then Oklahoma Governor Frank Keating.)
¶ 4 Atkins had determined that there is a “national consensus”1 against executing the *1145mentally retarded, but it also noted “serious disagreement” about where you draw the line regarding who is in fact retarded: “Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Atkins, 536 U.S. at 317, 122 S.Ct. at 2250. Thus, the States were left with the task of developing appropriate ways to enforce the constitutional restriction.2
¶ 5 We began that task in Murphy. However, because this is a five-judge Court without the necessary time, resources, personnel, or experience to ascertain the will of the people or the State’s budgetary constraints, Murphy attempted to temporarily resolve the mental retardation issue raised while, at the same time, exercise some judicial restraint.3 Murphy was a collaborative opinion that took a fairly moderate approach. While it required at least one IQ test of 70 or below in order to be eligible to be considered mentally retarded, it also adopted a preponderance of the evidence standard rather than a more stringent clear and convincing standard, as some states have. Murphy incorporated a jury instruction suggested by Judge C. Johnson. The case also required the fact-intensive issue of mental retardation to be decided by a jury. After all, the decision upon this issue could render the most heinous murderers ineligible for the death penalty. After reviewing state law and considering the potential impact on victims, it seemed sound to leave that decision with a jury of peers.
¶ 6 Unfortunately, the Miorphy procedures have never been fairly tested and have since been in a state of never-ending flux.4 It is no exaggeration to say that the case has been attacked whenever possible by those who did not originally agree with it, especially now when those who voted for Murphy are no longer sitting on this Court. The two-stage procedure has been replaced with several alternatives, although not the ones originally advocated by Murphy’s dissenters. Today’s decision applies a “margin of error” to what is arguably the most important aspect of Murphy, the 70 threshold I.Q. score. Indeed, in its haste to do away with all things Murphy, the opinion actually uses language saying it has been “overruled,” at least insofar as it varies from today’s opinion, thus adding more confusion to the trial bench as they seek to apply these complex procedures.
¶ 7 The Court’s inability to adopt a procedure and exercise the self-discipline to stick with it disregards the Rule of Law and demonstrates why there is such an aversion to legislating from the bench. For when Courts begin crafting the law rather than interpreting it, we create chaos and skewed doctrines that are not in touch with the will of the people. Even worse, we fail to follow the Rule of Law and introduce politics where it does not belong.
*1146¶ 8 This is where we find ourselves today. The Court keeps “changing the rules,” adding more procedures and loopholes that surely wreak havoc in pending trials. Indeed, the latest proposal requires a separate trial, jury, and appeal. The process is so micromanaged it literally makes one’s head spin. In fact, it is difficult to find your way through today’s opinion without getting a headache. Every conceivable contingency is addressed, not in the context of a real dispute, but in anticipation of a possible one. The Court goes so far as to tell prosecutors how they must try their cases. This oversteps our judicial role and arguably violates the separation of powers doctrine, in addition to potentially showing bias against the State’s case.
¶ 9 This Court owes a duty to the law, the courts, the practitioners, and the citizens to provide a consistent, logical, legally sound body of law that all concerned may rely on as they make decisions and prepare for the future. Not this constant bio-rhythmic change in procedure because it seems right at the moment. And so, it will be interesting to see how the state’s courts, district attorneys and federal courts in subsequent appeals will view this Court’s mental retardation jurisprudence, for the Court’s burgeoning mental retardation bureaucracy threatens to overwhelm the district courts, not to mention the attorneys who must wade through it. Personal opinions about the death penalty have arguably seeped into the process, and mental retardation has become a portal through which non-retarded defendants may escape, even those who have had juries reject their mental retarded claims. See, e.g. Pickens v. State, 2005 OK CR 27, 126 P.3d 612; Lambert v. State, 2005 OK CR 26, 126 P.3d 646; Salazar v. State, 2005 OK CR 24, 126 P.3d 625. I doubt this is consistent with the will of Oklahoma citizens or is a position the Oklahoma legislature would support. It is certainly not consistent with the role of the judicial branch of government to only adjudicate the cases and issues before the Court.
¶ 10 It is time for the Oklahoma Legislature to step up to the plate and reclaim the legislative role upon this issue. Should we really adopt a margin of error on this issue, so that the State must bear the trial and appeal costs of a person who cannot even produce one legitimate IQ score of 70 or below? Do we really want a separate trial on the issue of mental retardation, complete with a separate jury and appeals process? What does this do to the right of speedy trial? Do we really want to mandate that jurors deciding mental retardation are not death qualified, when we all know that jurors will likely know the consequences of then-decision, regardless of whether it is overtly pointed out?5 Do we really want to prevent the State from introducing evidence to the trier of fact that is relevant to the issue of mental retardation except to the extent that it “refutes” evidence the defendant has presented, thus allowing a defendant to keep out what might be the most powerful and relevant evidence that shows he or she is not mentally retarded?
¶ 11 Maybe we do and maybe we don’t. But it seems to me it is the Legislature’s job to answer these questions, after studying the issue, holding hearings, ascertaining the impact it will have on our courts, hearing from witnesses, surveying what the “statewide consensus” on this issue is, and debating the issue. Otherwise, we will have a similar situation as occurred in Schriro v. Smith, 546 U.S. -, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005). There, a federal appeals court began imposing conditions on Arizona trial courts concerning the issue of mental retardation before Arizona had even had a chance to apply its own chosen procedures.6 But the Supreme Court ruled that the federal court had acted beyond its habeas authority and reminded the federal court that the Supreme Court had left it to the States to develop *1147appropriate ways to enforce the constitutional restriction.
¶ 12 The same is true here. This appellate court has no business imposing stringent controversial conditions on the lower district courts that have not been adopted or even considered by the Oklahoma Legislature.
¶ 13 As for Appellant’s specific claim, it is clear that he experienced some type of learning disability as he progressed through school. But there is absolutely no evidence of mental retardation. Teachers may have assumed he fell into the classification of mentally retarded because he was assigned to the “special education program” due to the stated criteria for that program. However, it is not uncommon for students to be placed in special education for many reasons falling short of mental retardation.
¶ 14 Subsequent testing totally disproved Appellant’s mental retardation claim. Dr. Call’s testing revealed Appellant’s IQ was 87, which was consistent with two prior administrations of the test, i.e., a 2002 score of 83, and 2001 score of 78. These tests ipso facto refute any claim of mental retardation under Atkins, which found mental retardation is a cognitive defect that is present from birth and is therefore not subject to significant change over time.
¶ 15 For these reasons, I concur in the affirmance of the decision of the District Court, but dissent to most of this opinion, which is really nothing more than advisory dicta,7 as the issues addressed are not ripe for review or even presented for adjudication. And I hopefully await the response of the Oklahoma Legislature, which is needed now more than ever.
. Prior to Atkins, numerous defendants appear - ing before this Court had argued that there was a *1145"national consensus” against executing the mentally retarded. But, assuming that was true, where did the national consensus begin and end? Did the national consensus include only the overtly mentally retarded, i.e., moderately to severely mentally retarded individuals with I.Q.’s below 55? Or did it also include the mildly mentally retarded (55 to 70 I.Q.), who are often not obviously handicapped? And what about the statewide consensus? Where do Oklahomans stand on this issue? But, more importantly, of what relevance is a national consensus to the interpretation of Constitutional language?
. Ideally, this would be a job for the state legislatures, not for the judiciary.
. For example, our mental retardation definition paralleled that in Atkins and was to be used until "replaced by a suitable legislative enactment.” Not wanting to further burden or confuse our overcrowded, under-budgeted courts, we opted for a two-stage proceeding, rather than something more complicated and expensive. Because the procedures would result in jurors hearing details of the crime, we built in three checks and balances: (1) mental retardation could be resolved before trial, by agreement of the parties; (2) de novo review by the trial judge following trial that was "not to be a mere rubber-stamping of the jury’s factual determinations;” and (3) appellate review.
. Today's opinion disingenuously states, "Now that we have seen the model adopted in Murphy and its progeny implemented and appealed, we see ways in which to improve the resolution of these claims.” The truth, however, is that we have only implemented continuous change, and the District Courts have never been given an opportunity to settle into the rhythm of a known procedure that allows them to work out any problems that might arise in that procedure.
. For that matter, if the jury is not to be death-qualified, why is the Court legislating the granting of nine peremptory challenges for qualifying the juiy? This is inconsistent. If it is truly a separate proceeding on the issue of mental retardation, then the procedures contained in 22 O.S. 2001, § 1175.4 relating to determination of competency are more appropriate.
. Following Atkins, Arizona had passed mental retardation legislation. See, A.R.S. § 13-703.02.
. Supposedly, this Court is precluded from issuing advisory opinions and has so held throughout our history. See, e.g., Canady v. Reynolds, 1994 OK CR 54, ¶ 9, 880 P.2d 391, 394 (“An advisory opinion does not fall within the Court's original or statutory jurisdiction”); Matter of L.N., 1980 OK CR 72, ¶ 3, 617 P.2d 239, 240 ("This Court has consistently refused to issue advisory opinions"). However, as with so many other issues, it does not appear the law and precedent are any obstruction to the Court's desired results.