Tuesday March 27, 2001

Killer with IQ of 60 prompts review of US death penalty

 Julian Borger in Washington

The widespread US practice of executing convicts with learning disabilities comes under scrutiny today when the supreme court hears an appeal by Johnny Penry, a Texas death row inmate with the mental age of six. The case comes amid signs that the court may be ready to reconsider its decision 12 years ago that such executions were constitutional. This month alone, it has stayed two executions of criminals suffering from learning disabilities. The Penry case is expected to revolve around procedural issues, in particular whether the juries which heard the case were fully informed about his disability. However, the supreme court agreed yesterday to hear the case of Ernest McCarver, a death row inmate in North Carolina with a mental age of 10, whose lawyers are objecting to execution on the constitutional grounds that it would represent "cruel and unusual punishment". No date was set for the McCarver hearing. Penry's lawyers will argue today that the Texas juries which sentenced him to death for a 1979 rape and murder, were not properly informed of the mitigating evidence of his learning difficulties. He has been assessed as having an IQ of about 60. Twenty-five states allow the imposition of the death penalty on defendants with learning disabilities, despite arguments by the American Bar Association and human rights groups that the practice violates the US constitution's eighth amendment banning cruel and unusual punishment. It will be argued that Penry was not morally culpable for his acts, citing a long history of abuse by his mother, who beat him, scalded him and forced him to eat his own faeces. Penry forced his way into the house of Pamela Carpenter, 22, in the Texan town of Livingston, beat her, raped her and stabbed her to death with a pair of scissors she had used to try to defend herself. Ms Carpenter's relatives and victims' rights organisations say his crimes showed signs of premeditation. They argue that a ban on executions of convicts with learning difficulties would open a loophole for murderers to escape the death penalty. This is the second time the supreme court has examined the Penry case. In 1989, by a 5-4 majority, it upheld the constitutionality of executing criminals with learning disabilities, but issued a separate ruling - also by a one vote majority - that Penry should be retried because the original jury was not told that his learning capacity could be a mitigating factor in sentencing. At the second trial, in 1990, the jury disregarded the advice of the judge to impose a life sentence and took just over two hours to sentence Penry to death once more. His lawyers argue that the instruction given to the jurors on the importance of mitigating factors was not specific enough about his learning disability and his history of childhood abuse. Last November, Penry was within four hours of execution when the supreme court granted him a stay, saying it wanted to re-examine the case. Since the 1989 hearing, popular support for capital punishment has softened: 67% back it now, compared with 78% in 1989. Some 64% oppose executing people with learning disabilities. Richard Dieter, the head of the Washington-based Death Penalty Information Centre, said: "Clearly the grant of these stays and hearings show [the members of the supreme court] are concerned about the whole issue... It seems strange they would take these cases if they don't plan to do something about it."

- Tuesday, 27 March 2001

Supreme Court to Review Issue of Executing Retarded Killers

By LINDA GREENHOUSE WASHINGTON, March 26 - The Supreme Court announced today that itwould decide whether a growing national consensus against theexecution of mentally retarded murderers meant that such executionsshould be deemed unconstitutional as "cruel and unusual punishment"in violation of the Eighth Amendment.The case, to be argued next fall, could produce the court's mostimportant ruling on the death penalty in years.Experts say about 10 percent of the 3,600 prisoners on death roware mentally retarded, meaning they have I.Q. scores of less than70. To decide the issue, the court agreed to hear an appeal by aninmate on North Carolina's death row, Ernest P. McCarver, with anI.Q. of 67.Twelve years ago, the last time the Supreme Court considered thequestion, only two states with the death penalty, Georgia andMaryland, barred execution of the retarded. "There is insufficient evidence of a national consensus againstexecuting mentally retarded people convicted of capital offensesfor us to conclude that it is categorically prohibited by theEighth Amendment," Justice Sandra Day O'Connor said in her 1989opinion for the court, which voted 5 to 4 to reject aconstitutional challenge to the death penalty by a retarded Texasinmate, Johnny Paul Penry. Since then, 11 more states have rejected the death penalty forretarded killers, and others are considering legislation to do so.When states without the death penalty are included in the count,half the states no longer execute mentally retarded killers. "The national consensus against the execution of the mentallyretarded has now emerged," Mr. McCarver's lawyer told the justicesin the appeal that the court agreed today to hear.The court had issued a stay on March 1, when Mr. McCarver waswithin hours of being executed. "It is time for this court to assess whether American society haschanged significantly over the past decade so that the execution ofthe mentally retarded now violates American standards of decency,"the lawyer, Seth R. Cohen of Greensboro, N.C., said in the appeal,McCarver v. North Carolina, No. 00- 8727.The Supreme Court looks at "evolving standards of decency" todetermine whether a punishment is cruel and unusual. Under thattest of social consensus, the court in recent years has ruled outexecution of the insane, of rapists not also convicted of murderand of murderers younger than 16.The grant of review was a surprise because the court had appearedto be moving by small steps on the retardation issue.Mr. Carver was convicted in 1987 of robbing and murdering a fellowcafeteria worker in Concord, N.C.On Tuesday morning, the justices will hear arguments for thesecond time in the case of Mr. Penry, the inmate whose earlierappeal led the court to reject the broad attack on executing theretarded.In the 1989 Penry ruling, the court vacated his death sentence onthe narrower ground that the Texas death penalty law turned hisretardation into a double-edged sword, possibly persuading jurorsthat his inability to control violent impulses made him especiallydangerous and thus a candidate for execution.After a new hearing in Texas, Mr. Penry was again sentenced todeath, and the issue before the justices on Tuesday will be whetherthe instructions to the jury in response to the first Penry rulingallowed the jury to use retardation as a reason to view him asless, not more, deserving of the death penalty.Mr. Penry's new appeal, Penry v. Johnson, No. 00-6677, does notpresent the broader constitutional issue.In light of the court's action today, it is not clear what thejustices will do in Mr. Penry's case, because the issue of the juryinstructions is irrelevant if the Eighth Amendment bars theexecution of the retarded.A decision in the Penry case would ordinarily come by the end ofthe court's term in late June. The McCarver case will not be argueduntil the new term begins next fall. It might not be decided untilearly 2002. Executions of retarded killers are unlikely to occur while theMcCarver case is awaiting a decision. Earlier this month, the justices granted a stay of execution toAntonio D. Richardson, a retarded man on Missouri's death row. Thecourt took no further action on that case today. The stay is likelyto remain until the court decides the McCarver case. Under North Carolina law, the jury in Mr. McCarver's case waspermitted to weigh his retardation as mitigating against the deathpenalty. The jurors found that Mr. McCarver, then 26, functioned"intellectually as a 10- or 12-year-old" but that evidence ofpremeditation outweighed his retardation and other mitigatingevidence. In urging the Supreme Court to reject the appeal, the NorthCarolina attorney general's office said that while Mr. McCarverdemonstrated "borderline" intellectual functioning, he was notretarded and that the question was not properly part of his appeal. Before accepting the case today, the Supreme Court had turneddown two earlier appeals from Mr. McCarver, one in 1996, after theNorth Carolina Supreme Court affirmed the conviction and sentence,and another last Jan. 8.In the latter appeal, Mr. McCarver had sought review of a denialof a writ of habeas corpus by the United States Court of Appealsfor the Fourth Circuit, in Richmond, Va. After that, North Carolina scheduled Mr. Carver's execution forMarch 2. He won a stay of execution from a state trial judge, whichwas vacated on the same day by the North Carolina Supreme Court. The appeal that the justices allowed today is from the NorthCarolina Supreme Court's refusal on Feb. 27 to consider Mr.McCarver's constitutional challenge to his execution.

High Court To Review Executing Retarded Decision May Reflect Changes in State Laws On Mentally Disabled o Supreme Court 2000-2001

By Charles LaneWashington Post Staff  Writer  Tuesday, March 27, 2001;

The Supreme Court announced yesterday that it will decide whether the Constitution permits the execution of mentally retarded criminals, raising the possibility of one of the most significant reversals in the law on capital punishment since the reinstitution of the death penalty 25 years ago.The court had apparently settled the issue of executing mentally retarded offenders in 1989, when it decided by a 5 to 4 vote that the practice did not necessarily violate the Constitution's ban on "cruel and unusual" punishment.But yesterday the justices said they would reconsider that ruling in the case of Ernest McCarver, a convicted murderer on North Carolina's death row whose attorneys say he has an IQ of 67.The court's move took death penalty opponents by surprise. They have been waging a national campaign against executions of the mentally retarded, but had assumed that the justices would adhere to their normal aversion to revisiting relatively recent precedent."There's no guarantee that they will change" the 1989 ruling, said George Kendall of the NAACP Legal Defense Fund in New York. "But it at least shows that there has been enough change in the circumstances to warrant a reexamination." It takes the votes of four justices to agree to hear a case, but five to decide one.Because of the unique legal issues involved, McCarver's case provides the first signal that the court's view of capital punishment may be evolving to take account of a greater public concern with how capital punishment is administered.The court's 1989 decision was largely based on the fact that only two states at the time banned executions of mentally retarded criminals. This, the court said, was not enough evidence of a "national consensus" that the practice violated the country's "standards of decency."Today, however, 12 of the 37 states that allow the death penalty have banned executions of mentally retarded people. When combined with the 13 states that do not permit capital punishment, half the states now forbid executions of the mentally retarded. Federal law also forbids executing the mentally retarded in federal cases. (The District of Columbia has no death penalty.)In their appeal to the court, McCarver's lawyers said these developments show that the country's values have changed enough to warrant abolishing capital punishment for the mentally retarded."I was hopeful because the court in 1989 was sharply divided, and the landscape has changed since then," said Seth Cohen, one of McCarver's attorneys.The court's decision to considerMcCarver's appeal was announced as the justices prepared to hear arguments today in a case involving Johnny Paul Penry, the mentally retarded Texas death row inmate whose previous appeal gave rise to the 1989 ruling.Despite rejecting the ban on executing mentally retarded offenders, the court ordered a new trial for Penry because it said Texas law did not permit his jury to adequately consider whether his retardation was a reason to sentence him to life in prison instead of death.Retried, convicted and sentenced to death in 1990, Penry now says that flawed jury instructions in the second proceeding again prevented jurors from giving him a fair chance at a life sentence.While Penry's latest appeal is a rallying point for foes of the death penalty, it presents the justices with legal issues that affect only Penry and perhaps a few other death row inmates in Texas.In light of the court's decision to hear McCarver's appeal, however, the Penry case takes on new significance as a source of clues to the possible evolution of the court on the broader issue of executing mentally retarded offenders.Last year, when they were considering how to frame their Supreme Court case, Penry's lawyers debated whether to ask the court to consider a renewed constitutional challenge to the execution of the mentally retarded. After consulting with experts in death penalty litigation, the lawyers concluded that the justices were not likely to consider such an argument, which the attorneys had pressed unsuccessfully in lower courts.As the lawyers were aware, on Aug. 7, the Supreme Court had declined to halt the execution of a murderer in Texas, Oliver David Cruz, who also said he was mentally retarded and had raised procedural issues similar to Penry's. Three of the court's liberal members, Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, publicly dissented from that decision."It's possible we were wrong," said Robert Smith, Penry's attorney. "But it was a tactical judgment.Thirty-five mentally retarded people -- defined as those with an IQ of 70 or lower -- have been executed since the Supreme Court permitted the resumption of the death penalty in 1976, according to the Death Penalty Information Center, a Washington nonprofit group that opposes capital punishment.Human Rights Watch, another anti-death penalty organization, estimates that there are 200 to 300 mentally retarded inmates among the death row population of more than 3,700 convicted murderers.Proponents of a ban on executing the mentally retarded argue that the practice serves neither to punish nor deter crime. The mentally retarded lack the ability to rationally weigh the consequences of their actions, opponents say, and executing these "least culpable" offenders amounts to "cruel and unusual" punishment prohibited by the Eighth Amendment to the Constitution, and by international law."The United States may be the only constitutional democracy whose law expressly permits the execution of persons whose cognitive development has been limited by mental retardation and that carries out such executions," a March 20 report by Human Rights Watch said.Many prosecutors and victims' rights groups oppose a ban, arguing that even people of very low intelligence can often tell right from wrong, and that the concept of mental retardation itself is elastic. Better to let juries and courts determine defendants' culpability on an individual basis, they argue."There are not a lot of criminals who are mentally retarded," said Kent Scheidegger, legal director ofthe Criminal Justice Legal Foundation, which has filed a friend-of-the-court brief on behalf of the state of Texas in Penry's case. "On the other hand, there is a very large number who might claim it."Indeed, Ernest McCarver's case illustrates how difficult it can be to come up with a universally accepted definition. McCarver was 26 years old on Jan. 2, 1987, when he stabbed 71-year-old Woodrow F. Hartley to death at a cafeteria in Concord, N.C.Arguing against McCarver's Supreme Court appeal, attorneys for North Carolina noted that a defense-appointed forensic psychiatrist testified at McCarver's 1992 sentencing trial that he had scored 74 on an IQ test before the trial, not quite low enough to qualify him as mentally retarded.Last February, however, as McCarver's attorneys were working on appeals to spare him from execution, they brought in a psychologist to administer a new intelligence test in prison. McCarver scored 67.If history is any guide, Justice Sandra Day O'Connor will be the pivotal figure in the court's decision on McCarver's case. The 1989 Supreme Court case, now known as Penry I, was closely fought in a court divided between formidable death penalty foes, such as the late Justices William Brennan and Thurgood Marshall, and equally determined supporters of capital punishment, such as Chief Justice William H. Rehnquist and Justice Antonin Scalia. Rehnquist and Scalia are still on the court today.According to a Jan. 13, 1989, memorandum to Rehnquist from O'Connor included in Marshall's papers at the Library of Congress, O'Connor held the deciding vote in the case and took it upon herself to fashion an opinion for the court.In the opinion, O'Connor wrestled with the question of how to define mental retardation and how to attribute culpability to mentally retarded defendants.O'Connor dealt with these concerns in a portion of her opinion which held that state law must give juries a chance to make a "reasoned moral response" to evidence of mental retardation. This section -- the basis for giving Penry a new trial -- was joined by Brennan, Marshall, the late Justice Harry Blackmun and Stevens, who is still on the court.However, O'Connor concluded that "on the present record," it was not clear that all mentally retarded people lacked the reasoning ability ever to warrant capital punishment. She also considered it unlikely that profoundly retarded people would ever face capital punishment, because they could make use of an insanity defense.The portion of her opinion that held there was insufficient evidence of a "national consensus" to warrant abolishing executions of the mentally retarded was joined by Rehnquist, Scalia and Justices Anthony M. Kennedy and Byron White, who has since retired.O'Connor's opinion said a national consensus against capital punishment for mentally retarded criminals "may ultimately find expression in legislation, which is an objective indicator of contemporary values upon which we can rely."Scheduled executions for McCarver and Antonio Richardson, a convicted murderer from Missouri who says he is retarded, were stayed by the court in the first week of March. The court will hear McCarver v. North Carolina, case no. 00-8727, next fall, and a decision is expected by July 2002.