TIME

Should John Penry Die?

The court stays the execution of a mentally retarded man and reopens a death-row debate

BY MICHELE ORECKLIN

In 1979 Johnny Paul Penry forced himself into the the house of East Texas homemaker Pamela Moseley Carpenter, 22, raped her, beat her and fatally stabbed her. Before she died, she managed to describe her killer to police. Penry later confessed to the murder. Last Thursday he was scheduled to die by lethal injection. That would hardly be a rare occurrence in the state of Texas: Penry, 44, would have been the 38th man executed in Texas this year, a record for a single state since authorities began keeping track in 1930. But less than four hours before he was scheduled to die, the U.S. Supreme Court issued a stay of execution. The reason the Justices took that rare step concerns issues surrounding Penry's mental retardation. With an IQ that has been tested between 53 and 60 (an IQ of 70 is considered the threshold of mental retardation), Penry reportedly spends his days drawing with crayons and looking at comic books, since he cannot read. He was removed from school before finishing the first grade by his mother, who, according to relatives and a former neighbor, habitually beat Penry on the head with a belt buckle, locked him indoors for prolonged periods and made him drink his own urine. At 12, he was sent to a state school for the mentally retarded. In a recent interview with the New York Times, Penry spoke of his belief in Santa Claus. Penry stands at the center of a debate that bedevils even some supporters of the death penalty: Should the state execute people who have committed brutal acts but have the mentality of children? "While no one minimizes the severity of the crime," Penry's attorney, Robert Smith, wrote in his appeal to the Texas Board of Pardons and Paroles, "because of his mental retardation and family background, it is not possible that Johnny Paul Penry is among the most culpable offenders for whom the ultimate punishment is reserved." Of the 38 states that allow the death penalty, 13 bar the execution of the mentally retarded, as does the U.S. government for federal inmates. In 1989 the Supreme Court ruled that while executing those with diminished mental capabilities does not violate the ban on cruel and unusual punishment, a defendant's IQ and background are mitigating factors that should be considered by a jury when deciding punishment. It was, in fact, Penry's first scheduled execution that precipitated the landmark decision. The high court concluded that the jury in Penry's original 1980 conviction had not been asked to consider his mental capabilities when deciding on punishment. The court sent the case back to Texas, where Penry was once again convicted and sentenced to death. His lawyers contend that in the second trial, jury members did not get clear instructions to evaluate his mental maturity. By intervening, the Supreme Court deflected the case from the desk of Texas Governor George W. Bush--who, if Penry's appeal had failed, would have been asked by Penry's lawyers to issue a 30-day reprieve, the strongest step the Governor can take under Texas law. Bush refused such a request in August when another mentally retarded man, Oliver David Cruz, was put to death. Prosecutors do not deny that Penry has a low IQ, but they claim he is not nearly so limited as he is portrayed. Texas attorney general John Cornyn has alleged that Penry "can be purposefully deceptive." Prosecutors point out that Penry, who had been on parole less than three months for a rape conviction when he killed Carpenter, confessed to the crime and said, "I told her that I...hated to kill her, but I had to so she wouldn't squeal on me." A clear indication, they contend, that he discerned the gravity of his act. The stay left Carpenter's family despondent. "This is not the way the justice system should be set up," said the victim's brother Mark Moseley, a former placekicker for the Washington Redskins. The Supreme Court will decide in the next few weeks whether to consider Penry's appeal or send it back to the Texas courts, which would then most likely set a new execution date. The intricacacies of the controversy, however, reportedly elude Penry. Prison officials said that upon learning his life had been spared a second time, Penry asked if he could still eat his "last" meal--cheeseburgers and French fries.