Court To Review Death Penalty Cases

 By LAURIE ASSEO, Associated Press Writer WASHINGTON (AP)

 - The Supreme Court agreed Monday to consider whether the Constitution bars the execution of mentally retarded people as ``cruel and unusual'' punishment. The court said it will hear an appeal by North Carolina death-row inmate Ernest McCarver, whose execution the justices halted this month just hours before he was to be put to death. The justices are scheduled to hear arguments Tuesday on a case involving a Texas death-row inmate whose lawyers say he is mentally retarded and has the mind of a 7-year-old. However, the justices are not being asked in that case to decide whether the Constitution prohibits executing the mentally retarded. In the Texas case, Johnny Paul Penry's lawyers contend jurors who sentenced him to death for murder did not have the chance to properly consider his mental capacity. The Supreme Court used Penry's case in 1989 to rule that the Constitution allows the execution of mentally retarded killers, although the court threw out his first conviction. McCarver, 40, was convicted of the January 1987 stabbing and choking death of Woodrow Hartley, a 71-year-old worker at the Concord cafeteria where McCarver had worked. cCarver's lawyers say he is mentally retarded and has the mind of a 10-year-old child and reads at a third-grade level. His appeal asks whether ``national standards have evolved such that executing a mentally retarded man would violate'' the Constitution's 8th Amendment ban on cruel and unusual punishment. The appeal cites ``society's newly evolved consensus against executing the mentally retarded.'' Thirteen capital-punishment states prohibit execution of the mentally retarded, his lawyers said. Another 12 states do not have capital punishment. Lawyers for the state said considerable evidence showed that McCarver was not mentally retarded, but that even if he was, his execution would not violate the Constitution. The Supreme Court halted McCarver's execution on March 1 after he had been served his last meal. Hours earlier, North Carolina Gov. Mike Easley had denied his clemency petition. McCarver's most recent IQ test, arranged by the defense team, pegged his score at 67, but his IQ was measured at between 70 and 80 before his 1988 trial. In denying clemency, Easley said McCarver had planned and orchestrated Hartley's murder and was motivated by revenge against a former co-worker. He said McCarver was competent enough to gain employment and earn driving privileges, and that no court had found him incompetent. Defense lawyers had asked Easley to commute McCarver's sentence to life in prison. The case is McCarver v. North Carolina, 00-8727.

Supreme Court to Review Execution of Retarded

WASHINGTON  - The Supreme Court said on Monday it would decide whether execution of the mentally retarded violated American standards of decency and should be struck down as unconstitutional cruel and unusual punishment. The high court agreed to hear an appeal by a death-row inmate in North Carolina, whose attorneys argued that significant evidence demonstrated that national standards have developed over the past decade to ban such executions. The justices will hear arguments in the case and issue their decision during their term that begins in October. The decision to review the North Carolina case was announced the day before the justices hear arguments in the case of a Texas death-row inmate and a convicted murderer said to be so mentally retarded he still believes in Santa Claus. The justices on Tuesday will use the case of Johnny Paul Penry to clarify how much opportunity jurors in death penalty cases must have to consider the defendant's mental capacity. Penry is supposed to have an IQ between 50 and 63, below the 70 required for normal intelligence. He has said he still believes in Santa Claus, according to his lawyers. In a 1989 decision in the Penry case, the Supreme Court said juries in capital murder trials must be allowed to weigh evidence of mental retardation. It also ruled that executing the mentally retarded does not violate the constitutional ban on cruel and unusual punishment. Justices To Revisit Issue The North Carolina case gave the justices a chance to revisit the constitutional issue. Attorneys for North Carolina death-row inmate Ernest McCarver, whom they described as having the mind of a 10-year-old, said there now existed a national consensus against executing the mentally retarded. At the time of the 1989 decision, only the federal government and one state, Georgia, prohibited the execution of the mentally retarded, they said. Since 1989, eleven more states -- Arkansas, Colorado, Indiana, Kansas, Kentucky, Nebraska, New Mexico, New York, South Dakota, Tennessee and Washington -- have also outlawed execution of the mentally retarded, they said. The lawyers noted that 12 other states have no death penalty laws at all. North Carolina Attorney General Roy Cooper opposed the appeal, citing McCarver's ``newly minted claim'' that he is mentally retarded, a position that McCarver never raised at his two trials. Cooper said two psychiatrists and three psychologists testified at those trials that McCarver was not mentally retarded. But even assuming he is mentally retarded, his execution would not be unconstitutional, Cooper said. McCarver's most recent IQ test, arranged by his defense lawyers, put his score at 67, but his IQ was measured in the 70-to-80 range before and during his trial. McCarver was convicted of the 1987 stabbing and choking death of a 71-year-old worker at a cafeteria where he had previously worked as a dish washer. McCarver and an accomplice had planned to rob the man, who had befriended McCarver.