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Unfair Punishment?

High Court Considers Death Sentence of Mentally Retarded Inmate

By Geraldine Sealey March 27 - It was the morning of Oct. 25, 1979, and Pamela Moseley Carpenter didn't want to disappoint her young nieces. Her Halloween decorations weren't complete, and Carpenter wanted them ready before school let out.

But before the 22-year-old could finish cutting out her paper jack-o'-lanterns, a man came to the door of her Livingston, Texas, home. It was Johnny Paul Penry, a 23-year-old mentally retarded rapist on parole who had helped install appliances in her home weeks earlier. He raped Carpenter and stabbed her in the chest with the scissors she was using to make decorations. Carpenter lived for two hours after the attack, long enough to give police a description of her assailant. Within hours, Penry - who has an I.Q. of 56 - confessed to the crime. He was convicted of capital murder and sentenced to death. But 20 years later, Penry still has at least one big court date left. After two murder trials and one U.S. Supreme Court hearing, the high court once again will consider today whether Penry's sentence was fair. Penry's case has galvanized advocates of death penalty reform and has led to state and federal legislation banning execution of the mentally retarded. High Court Ordered New Trial The first time the high court heard Penry's case, more than a decade ago, the justices heard evidence that jurors in his first trial were not allowed to consider whether his retardation or abusive childhood may have contributed to whether he deliberately committed the crime. Penry's intelligence level and horrific history of abuse - relatives have testified he was forced to eat his own feces as a child - should mitigate the circumstances surrounding his crime, justifying a sentence less than death, his attorneys argued. In a June 1989 opinion, the justices sent Penry's case back to Texas for a retrial, directing the state to allow a jury to consider his mental capacity as a mitigating factor. In the same ruling, the high court ruled it was not unconstitutional to execute the mentally retarded, saying there was no national consensus against the practice. On Monday, the Supreme Court agreed to hear a case from North Carolina that reopens the question of whether executing the mentally retarded should be banned. On retrial, Penry was convicted again, and sentenced to death by lethal injection. His lawyers appealed, claiming the jurors in the new trial could not adequately consider his mental status because their instructions to do so were confusing. Human Rights at Stake? They also claim the prosecution violated Penry's constitutional right against self-incrimination by using testimony from a psychiatrist in an unrelated case who said Penry was a danger to society. Prosecutors say the new trial adhered to what the high court required in the first Penry case. "The instruction clearly directed the jury to consider mitigating evidence and to give Penry a life sentence if it found that the evidence sufficiently lessened his moral culpability," the Texas attorney general said in a legal brief to the high court. Since the Supreme Court last considered Penry's case, 11 states and the federal government passed laws prohibiting the execution of the mentally retarded. Thirteen now prohibit the practice. Nine others - including Texas - are considering similar bills. Jamie Fellner of Human Rights Watch said she hopes the Supreme Court will see there is a growing national consensus against executing the mentally retarded. But she also urges states to move ahead with their own bans. "That would signal to the court that there really is momentum and that the United States really needs to step up to human rights standards recognized around the world, which should be in our U.S. Constitution," she said. Since the death penalty was reinstated in 1976, 35 mentally retarded U.S. prisoners have been executed. A ruling in the case, Penry vs. Johnson, is expected by July.