A Mind Too Weak to Merit the Death Sentence?

By Paul Duggan

Washington Post Staff Writer

 LIVINGSTON, Tex."I have learned a whole lot since I've been in here," said Johnny Paul Penry, now in his 21st year on Texas's death row. His voice is slow, thick. "I learned drawing," said Penry, who is 44, but has the intellectual capacity of a first-grader, according to his attorneys. "I draw houses and cars. I can't draw too good, but I can a little bit. And I can read a little bit, too, if it's not long words. I remember when I first came in, I couldn't even do none of that." Penry is the human face of a long-running legal and moral debate: Should convicted murderers who are mentally retarded be subject to the death penalty? Eleven years ago, in a landmark ruling in Penry's case, the U.S. Supreme Court narrowly held that executing such prisoners was not a violation of the Eighth Amendment's ban on cruel and unusual punishment. But that wasn't the end of Johnny Paul Penry. A few months from now, in a rare second chance before the Supreme Court, Penry's lawyers will  get another opportunity to argue against his death sentence. Unlike his earlier appeal -- a broad constitutional challenge that could have changed the administration of capital punishment nationwide -- the issues this time concern procedures at Penry's trial. But the ultimate goal of his lawyers and other advocates remains the same: Because they view Penry as essentially a child, they want his life to be spared, for moral reasons. "It goes to who we are as a society," said Ruth Luckasson, a professor of special education at the University of New Mexico who has helped 13 states draft laws barring executions of inmates such as Penry. "Do we really want to be a society that kills vulnerable people?" asked Luckasson, who is also a lawyer. "We don't execute children. We shouldn't execute the mentally retarded." The debate centers on what Luckasson and others call "deathworthiness" -- the idea that even a society that supports capital punishment should ban executions of certa! in prisoners, such as the mentally retarded, as morally unacceptable. For example, the Supreme Court in 1989 outlawed executions of convicted murderers who were younger than 16 when they committed their crimes. The court cited the "evolving standards of decency that mark the progress of a maturing society." Of the 38 states with capital punishment laws, Texas, Virginia and 23 others allow executions of convicted murderers who are mentally retarded. "The only thing what I know is what my attorneys had told me," said Penry, sitting in a visiting booth at the state prison in this East Texas town. "They say if a person don't understand what's going on -- which I don't understand what's going on -- then they shouldn't be trying to put me to sleep like they're always wanting to." Charged in the 1979 murder of Pamela Moseley Carpenter, the sister of former longtime Washington Redskins kicker Mark Moseley, Penry was convicted and sentenced to death in 1980, then at a second trial. l in 1990. He confessed to forcibly entering Carpenter's Livingston home and fatally stabbing her during a sexual assault. The prosecutor in the case, William Lee Hon, noted in an interview that jurors in both trials could have voted to spare Penry's life because of his mental retardation, but decided not to do so. "They knew exactly what the penalty should be," said Hon, who opposes legislation prohibiting executions of mentally retarded inmates. Those decisions should be made by juries in individual cases, he said. Here in the nation's leading death penalty state, the new Republican governor, Rick Perry, agreed with Hon. "I think our courts have substantial information that flows to them about the competency of a person in terms of mental health," Perry said in an interview. Like his gubernatorial predecessor, President-elect Bush, Perry described himself as a strong supporter of capital punishment. "I think in Mr. Penry's case, the jury made the decision, twice, tha!
t he understood full well what he was doing," said Perry, referring to the two trials. "I've always been a big believer that you leave those kinds of issues to the jury." The nonprofit Death Penalty Information Center in Washington, which opposes capital punishment, said it is unclear how many mentally retarded inmates are on death rows. But 35 prisoners diagnosed as mentally retarded have been put to death since the Supreme Court allowed capital punishment to resume in 1976, the center said. That amounts to about 5 percent of executions nationwide. Penry was three hours away from a lethal injection on Nov. 16 when the Supreme Court issued a temporary reprieve. The court later agreed to consider his most recent appeal, and said it would hear oral arguments in March or April. In an interview last week, Penry recalled his near-death experience. "The only thing what I know is, the warden came back and told me, 'Mr. Penry, you got a stay.' " From talking with his lawyers, Pe!
nry knew that a "stay" meant he would not be put to death that night. He remembered that the warden, who was accompanied by a chaplain, held a legal document ordering a halt to the scheduled execution. "He couldn't read it to me," Penry said of the warden, "so he gave it to Father Walsh to read. The warden didn't understand the Catholic language, and it was in Catholic. Father Walsh read it to me because he understands Catholic." Although Hon and other prosecutors acknowledge that Penry's intelligence is below normal, they contend he is a sociopath who is smarter than he acts. His attorneys say his IQ has been measured in the 50 to 60 range, compared with the average person's 100, and that horrific abuse inflicted as a child left Penry with organic brain damage. He has virtually no formal education. In 1980, Penry's trial lawyers sought a verdict of not guilty by reason of mental impairment, arguing that he was incapable of appreciating the wrongfulness of his act. But jurors rejected that defense, convicting him of capital murder. During the trial's penalty phase, under Texas law at the time, jurors were not allowed to consider Penry's mental retardation when weighing possible reasons to spare him a death sentence. In Penry's initial appeal, his attorneys argued that if jurors had been permitted to take into account his mental retardation, they might have voted for a sentence of life in prison rather than execution. The Supreme Court in 1989 agreed that evidence of mental retardation should be considered during the penalty phase of a capital murder case, and ordered a new trial for Penry. He was sentenced to death again in 1990. In the new appeal that the Supreme Court has agreed to review, Penry's attorneys allege that the judge in his second trial gave a confusing instruction to the jurors during the penalty phase. As a result, the attorneys allege, the jurors were prevented from factoring Penry's mental retardation into their punish!
ment decision. The attorneys want another trial, and another chance to convince a jury that executing Penry would be morally equivalent to executing a first-grader. In his first appeal, Penry's attorneys also asserted that executing mentally retarded inmates was cruel and unusual punishment, an Eighth Amendment violation. The argument could have affected death penalty laws across the country. But the Supreme Court rejected the argument in 1989, saying its interpretation of "cruel and unusual" should reflect society's "evolving standards of decency." "The clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures," Justice Sandra Day O'Connor wrote for the majority. At the time, only Maryland and Georgia banned death sentences for the mentally retarded. "In our view," O'Connor wrote, "the two state statutes . . . do not provide sufficient evidence at present of a national consensus" against such executions!
. Since then, 11 more states have amended death penalty laws to prohibit executions of the mentally retarded, most recently South Dakota last spring. Generally, the protection applies to murder defendants whose IQs have been 70 or below since before adulthood, and who had trouble functioning in day-to-day life.  Polls show that most Americans, while supporting capital punishment, do not approve of executing the mentally retarded. But legal scholars said they think most of the 38 states with capital punishment laws would have to ban executions of the mentally retarded before the Supreme Court deemed the practice to be cruel and unusual by contemporary standards. As for Penry, he said he knows that prosecutors think he is less mentally impaired than he appears. He said he wishes it were true. "I am very slow," he said. "I notice the difference in other people, because some people don't like being around me, because I'm not to their level. And it makes me mad sometimes. And sometimes I take my head and I pound it against the wall. I pound it and pound it until it hurts. And then I go over and sit down."