Election Cited in Bid to Spare Condemned Man

Lawyers for a mentally retarded man who has been on Texas’ death row for more than 20 years made a special plea Wednesday to Gov. George W. Bush to give their client a 30-day reprieve from execution, citing Bush’s preoccupation with the still-unresolved presidential election.

John Paul Penry, who has an IQ of 56, is scheduled to be executed by injection at 6 p.m. today. He was convicted in the 1979 rape and murder of Pamela Mosely Carpenter of Livingston, Texas, the small city where Penry now is incarcerated.

On Tuesday, the Texas Board of Pardons and Paroles voted, 15 to 2, against commuting Penry’s sentence to life and, 16 to 1, against giving him a 30-day reprieve. Under Texas law, Bush can either allow the execution to go forward or grant a onetime 30-day reprieve to permit further appeals. Bush has made no comment on the case, and a spokesman said he would not comment until Penry’s last appeal to the U.S. Supreme Court is resolved.

Bush Has Granted 1 Reprieve in 6 Years

If Penry is executed, he would be the 149th person killed by the state of Texas while Bush has been in office--more than under any governor in U.S. history. During his six years in office, Bush has granted only one reprieve. Penry also would be the second mentally retarded person to be executed in Texas this year.

The Death Penalty Information Center in Washington, D.C.--a nonprofit organization that opposes capital punishment--said that since 1984, 35 convicted murders who showed evidence of mental retardation have been executed in this country. Currently, 13 of the 38 states with death penalty laws prohibit executions of such people.

A bill introduced by Democratic state Sen. Rodney Ellis to bar executions of the mentally retarded in Texas was defeated during the last session of the Legislature. Ellis has said he will reintroduce the measure next year.

“The irony is, it is possible that in six months, the Texas Legislature will have prohibited the execution of people like John Paul Penry,” said Robert S. Smith, a New York attorney who wrote Penry’s clemency petition. “In light of that possibility, we beg the governor not to let Johnny’s execution proceed.”

But Texas prosecutors maintain that Penry knew what he was doing, has an incurable antisocial personality disorder and should not be spared. Penry should be executed “for the sake of Pamela Carpenter,” three district attorneys urged in a brief to the pardon board.

On Wednesday, Texas Atty. Gen. John Cornyn issued a formal statement supporting the execution: “According to overwhelming expert psychological testimony at trial, Johnny Paul Penry knows the difference between right and wrong, is a schemer, a planner and can be purposefully deceptive.”

Cornyn said that Carpenter’s family “has had to live with their loss for more than 20 years. It is time for them to have the closure they deserve.”

In addition to his mental retardation, Penry was subjected to terrible abuse from his mother as a child, according to the clemency petition and court papers. Shirley Penry, now deceased, beat her son with a belt, scalded him with boiling water and forced him to ingest his own urine and feces, according to testimony from his siblings.

Amnesty International, EU Among Protesters

The prospect of Penry’s execution has drawn protests from the American Bar Assn., Amnesty International, the European Union and several advocacy groups for the mentally retarded.

“Federal law, approved by former President Ronald Reagan, bars the execution of people with mental retardation convicted in federal courts,” the National Assn. of Retarded Citizens said in a letter to Bush. The letter called on the governor to demonstrate “compassionate conservatism” by sparing Penry’s life.

“People with mental retardation should not be exempt from prosecution, nor should their disability be considered as a reason or excuse for criminal behavior. But the cognitive limitations which necessarily reduced their culpability require that the penalties imposed be proportionate in order that justice be served,” said University of Maryland Law School professor Stanley S. Herr, co-author of a friend-of-the-court brief asking the U.S. Supreme Court to stay the execution and grant further review of the case.

Carpenter, 22, was decorating her new home when Penry--who earlier had delivered appliances to the house--forced his way in, raped her and then stabbed her with scissors. Before she died, Carpenter, who sang in her church choir, described her attacker. A boot print found on her body matched Penry’s boot, according to trial testimony.

Penry confessed to police, saying: “I told her that I loved her and hated to kill her, but I had to do it so she wouldn’t squeal on me.” Just two months earlier, Penry had been paroled from prison for an earlier rape conviction.

Penry was first convicted and sentenced to death in 1980. Nine years later, in the landmark case of Penry vs. Lynaugh, the Supreme Court rejected the contention of Penry’s lawyers that executing a mentally retarded person would constitute cruel and unusual punishment under the 8th Amendment to the U.S. Constitution.

However, the justices also ruled that Texas’ death penalty law did not give the jury an opportunity to hear mitigating evidence about his mental condition, and they ordered a retrial.

Penry again was convicted and sentenced to death before the state had amended its death penalty statute. To this day, Penry’s lawyers maintain that he was not provided the benefit of the changed law that his case generated. The Texas attorney general countered in a brief to the Supreme Court that the jury in the second trial had sufficient information about Penry’s condition when it sentenced him to death.

State records show that Penry’s IQ was 56 when he was 9 years old, according to court documents. Three years later, Penry was sent to the Mexia State School for the Mentally Retarded. Papers filed by Penry’s lawyers also state that when he was given a test directing him to match words and pictures at the age of 15, Penry responded that a chicken was a drum and a door was a dress.

In the 1989 Supreme Court ruling granting him a new trial, the decision stated that, while Penry was 22 at the time he murdered Carpenter, he had “the mental age of a 6 1/2 year old.”

Smith stressed that point in his clemency petition. “Killing a ‘man’ like Johnny, who still draws with crayons and probably believes in Santa Claus, will not bring the victim back or serve either of the stated goals of capital punishment: deterrence or retribution. There is no societal retribution in killing a person with the mind of a 6-year-old who cannot understand why what he did was wrong and who does not even understand the meaning of the word ‘execution.’ ”