Can low-IQ convicts be put on death row? The Supreme Court considers the moral questions tomorrow.

By Warren Richey ([email protected]) Staff writer of The Christian Science Monitor

 WASHINGTON Culpability is a word not likely found in Johnny Paul Penry's vocabulary. But it is a legal concept that might well save his life. Mr. Penry, a Texas death-row inmate with an IQ of 54, is at the center of a US Supreme Court case examining under what circumstances mentally retarded defendants may face capital punishment. Penry has twice been convicted of the 1979 rape and murder of 22-year-old Pamela Carpenter. And twice juries have voted to send him to his death. But what brings his case to the nation's highest court for the second time in 12 years is the concept of culpability and a fundamental moral question behind it - whether a convicted killer who is mentally retarded has a full enough understanding of his wrongdoing to justify a death sentence. Tomorrow, the Supreme Court will hear arguments in Penry v. Johnson, giving justices an opportunity to clarify to what extent judges and jurors should take into consideration a defendant's mental retardation (those with an IQ of 70 and below) when weighing a death sentence. There is more riding on the case than just Penry's fate. Other courts are watching the outcome for guidance, including a federal appeals court in St. Louis, which earlier this month stayed the execution of Antonio Richardson, who is described as borderline mentally retarded and was 16 when he was involved in the 1991 murder of two sisters. Death-penalty opponents and mental-health activists are also closely following the case with the hope that the high court will consider declaring a national ban on executing mentally retarded criminals. Currently, 13 states ban death sentences for mentally retarded defendants. Mitigating factors Penry's lawyer, Robert Smith, says that his client's mental disability and substantial abuse as a child do not excuse his criminal behavior. But Mr. Smith says they are important mitigating factors that should weigh in the balance during jury deliberations. "Finding that a horrible crime occurred here and that the defendant is responsible for it is not quite the same as if this horrible crime had been committed by someone who is mentally normal and had not been tortured by his mother from birth," Smith says. "This takes enough of the guilt off his shoulders to make the difference between a life sentence and a death sentence." In 1989, the first time the high court considered Penry's case, a majority of justices upheld the constitutionality of executing mentally retarded criminals. But the court nonetheless threw out Penry's death sentence, ruling that the jury, when deliberating whether to sentence him to death, had not been given an opportunity to consider Penry's mental disability and the abuse he had suffered as a child. The justices remanded the case back to Texas with instructions that jurors be permitted to fully consider any mitigating evidence that might convince them that death was not an appropriate sentence for Penry. The 1989 decision, written by Justice Sandra Day O'Connor, says in part: "Punishment should be directly related to the personal culpability of the criminal defendant." She adds: "It is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence." The decision maintains that only this procedure will lead to a "reliable determination" and ensure the defendant is treated as a "uniquely individual human being." At the time of the 1989 decision, then-Justice William Brennan wrote a dissent that accurately predicted the next stage in Penry's case. "When Johnny Penry is resentenced, absent a change in Texas law there will be nothing to prevent the jury, acting lawfully, from sentencing him to death once again - even though it finds his culpability significantly reduced by reason of mental retardation," he wrote. Rather than allowing a judge or jury to make such a difficult determination, Justice Brennan favored a blanket ban on executing anyone found to be mentally retarded. In Brennan's view, the Constitution requires that only those who are fully blameworthy - and have a full understanding of the wrong they have done - should face the death penalty. But the Supreme Court majority in the first Penry case didn't see it that way. They indicated that judges and juries could make such moral decisions. Texas procedures contested The issue arising in Penry's second death sentence isn't that the jury handed down the wrong sentence. The issue is that the mechanism established under Texas law for death-sentence deliberations may not have allowed for adequate weight to be given to any mitigating evidence presented by the defendant - including his mental retardation. Texas law has been rewritten since the 1989 Supreme Court decision to take into account the so-called Penry question, which jurors must answer prior to issuing a death sentence. But, ironically, the new rule came too late to actually apply to Penry. In their brief to the court, Texas prosecutors argue that informal instructions to the jury during Penry's second trial were more than enough to satisfy any concerns about the fairness and constitutionality of the sentence. Lawyers for Penry counter that the judge didn't do enough to make it clear to jurors that they must consider all mitigating evidence before returning a death sentence. What makes such cases so difficult is that the heinousness of the crime can all but outweigh in the minds of jurors any mitigating evidence. Smith, Penry's lawyer, says he isn't worried about attempts by prosecutors to draw on sympathy for the crime victim. "My theory of human nature is that if you are capable of feeling sympathy for the victim, then you are still capable of feeling sympathy for Johnny Penry," he says. "His story is a very, very pathetic story. There is no doubt that Pamela Carpenter was a victim, but there is no doubt that he was also a victim of horrible things."