The Supreme Court on Monday overturned the death sentence given a Texas murderer who has the mental age of a 6-year-old, ruling that jurors were not clearly told to consider his mental retardation as a reason to possibly spare his life.
The 6-3 ruling faults the Texas courts for all but ignoring an earlier high court decision in the same man's case.
In the fall, the justices will consider whether the execution of retarded defendants is always cruel and unusual punishment and therefore should be stopped as unconstitutional.
The court's action comes as more states, including Texas, are moving on their own to exempt the mentally retarded from capital punishment.
In 1989, when the high court first considered the case of Johnny Paul Penry, only two states with capital punishment had exempted those who are retarded. Fourteen states now have such a ban.
Last November, when the court granted Penry a stay of execution, he was just hours away from entering the death chamber. Just two days earlier, the Texas Board of Pardons and Paroles had voted almost unanimously against commuting his sentence to life or granting him a reprieve.
But this year the Texas Legislature, as well as statehouses in Missouri and Florida, passed a bill that would exempt the mentally retarded from capital punishment. The governors of those states still must sign the bills to make them law.
James Ellis, a University of New Mexico law professor and past president of the American Assn. on Mental Retardation, said changing American attitudes have prompted the exemptions. "It's the polling numbers that have made a difference. Even a majority of those who support the death penalty do not support its use for those who are mentally retarded," he said.
However, California, which with 550 inmates has the nation's largest death row, has not adopted a similar ban. Ellis said such a change in California would require a statewide referendum, because the capital punishment law was approved by a state vote.
International human rights activists said no major country other than the United States regularly imposes the death penalty on those who are known to be mentally retarded.
"On this one, we stand alone with Kyrgyzstan," said Richard Wilson, director of the International Human Rights Law Clinic at American University, referring to the former Soviet republic in central Asia.
Mental retardation is usually defined as having an IQ below 70. Some death penalty supporters say this cutoff point is arbitrary and that murderers who are capable of telling right from wrong should not be excluded from facing the ultimate punishment because they score poorly on intelligence tests.
In Penry's case, prosecutors argued that he made a calculated decision to kill Pamela Moseley Carpenter in 1979 after raping her. A few weeks earlier, Penry had been released from prison after serving time for a rape and did not want another witness to testify against him, they said.
When tested, Penry's IQ ranged from 50 to 63, and jurors were told that he had been severely beaten and abused as a child. His mother kept him locked in a small room without a toilet.
But Texas law strictly limits what jurors are told to consider when they are debating whether to sentence a killer to death or life in prison.
They are told to decide three questions. Was the murder deliberate? Was the murder an "unreasonable" response because there was no provocation? And is the defendant a continuing danger to society if released?
In Penry's first trial during the 1980s, the jurors quickly answered "yes" to all three questions, and he was sentenced to die.
When the case first reached the high court in 1989, the justices split into three groups. The four liberals voted to abolish capital punishment for retarded defendants. Four conservatives voted to uphold it in general and affirm Penry's sentence as well.
Justice Sandra Day O'Connor held the middle position and wrote the court's opinion. She refused to strike down the death penalty for all mentally retarded defendants but voted to overturn Penry's sentence because the Texas jurors had not been told to weigh his retardation as a factor in his favor.
But when the case went back to Texas, the process was repeated with only a minor change.
The sentencing jurors were told to answer the same three questions. Then the judge told them they should consider Penry's retardation, and if they wished, they could give "a negative finding" to one of the three questions.
They did not do so and again sentenced Penry to die.
The Texas courts and the U.S. Court of Appeals based in New Orleans rejected appeals on Penry's behalf.
But on Monday, O'Connor described the state's response as "ineffective and illogical."
The jurors were told to decide whether, for example, Penry's murder was deliberate and unprovoked. Since the facts had not changed, the jurors would be expected to answer "yes." Yet, the judge's instruction left them the option to answer "no."
"In other words, the jury could change one or more truthful 'yes' answers to an untruthful 'no' answer in order to avoid a death sentence for Penry," she said. "We generally presume that jurors follow their instructions. Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions."
In dissent, Justice Clarence Thomas said the jury instructions were clear to him. "I cannot make the instruction confusing. And I certainly cannot do the contortions necessary to find the Texas appellate court's decision objectively unreasonable," said Thomas, who was joined by Chief Justice William H. Rehnquist and Antonin Scalia.
Since the high court restored capital punishment in 1976, the states have executed 716 people. Of those, 35 showed signs of mental retardation, according to the Death Penalty Information Center in Washington.
The 14 states that have exempted mentally retarded defendants from capital punishment are Arizona, Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, New Mexico, Nebraska, New York, South Dakota, Tennessee and Washington.
In the fall, the court will take up the case of McCarver vs. North Carolina to decide whether to make the ban nationwide.